MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Carle Place Union Free School District ("respondent") to suspend his son, Enrique, for the remainder of the 1997-98 school year. The appeal must be dismissed.

By letter dated February 13, 1998, Superintendent Mary Ellen Freeley gave petitioner notice that a disciplinary hearing was scheduled for February 24, 1998 to consider charges that Enrique had possessed, brandished and discharged a gun on a school bus in the presence of other students, while returning from a basketball game on the evening of February 10, 1998. The hearing was adjourned until March 11, 1998.

Eight students testified at the March 11, 1998 hearing. Seven of the students testified that Enrique had a BB gun on the bus, and the eighth student ("MK") said that he had not been on the bus for the return trip from the game. Two of the 7 students added that they had personally handled the gun, and a third said that he had touched it. Three of the 7 students stated that they had seen Enrique fire the BB gun, and all 7 testified that they had heard pinging or "metal on metal" sounds that they assumed were BB shots, although there were discrepancies as to the number of such sounds or shots. Enrique made a statement on the record, denying that he had a gun, and contending that the students were lying because of a problem between certain unidentified friends and Enrique's friendship with "MS" (one of the students who testified that he had personally seen and handled the BB gun on the bus). Petitioner also made a summation statement on the record.

The superintendent issued a decision on March 13, 1998, concluding that the evidence supported the charges. She suspended Enrique for the remainder of the school year, and noted that the district would provide a home tutor for Enrique through June 24, 1998. Respondent upheld the superintendent's determination on May 11, 1998. This appeal ensued. Petitioner's request for interim relief was denied on May 20, 1998.

Petitioner contends that all the students lied except MK, and that the testimony of the 7 students was contradictory, inconsistent with their prior written statements and insufficient to support the guilty finding. Petitioner alleges that respondent should not have credited the testimony of students who "had something against" his son, that this incident happened because respondent failed to have an adult on the bus to supervise the students, and that the penalty was excessive. He further asserts that the superintendent did not investigate the incident properly or give proper credence to Enrique's testimony that it was another student who had the gun on the bus. He also asserts that the school's attorney improperly refused to give him copies of the students' prior written statements at the hearing. Petitioner requests that the suspension be reversed, that Enrique's record be expunged, and that I order respondent to investigate the incident and the other students' testimony. Respondent denies petitioner's claims.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Holt-Silvin, 39 Ed Dept Rep ___, Decision No. 14,249; Appeal of Pinckney, 37 id. 284, Decision No. 13,860). The hearing officer is in the best position to determine matters concerning witness credibility, and I will not substitute my judgment for that of the hearing officer unless the findings are not supported by facts on the record (Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of Pinckney, supra).

Petitioner argues that the testimony of the 7 students was contradictory and insufficient to support the guilty finding, and that there were bad relations between the student witnesses and Enrique. I have carefully reviewed the transcript of the hearing. Although I note that there are some inconsistencies between the students' accounts of the incident, especially as to the number of times the BB gun was fired and where it was fired, all 7 witnesses who were present on the bus during the incident uniformly and unequivocally testified that Enrique had a BB gun on the bus.

Although petitioner contends that the students lied about his son because of a grudge or other problem, the only evidence in the hearing record of any such motive was Enrique's statement that some of his friends (unnamed) were angry because Enrique was friends with, and talking on the bus with, student "MS." However, MS himself testified that Enrique had a BB gun on the bus and that MS had handled the gun. Petitioner also stated at the hearing that a friend of Enrique's had agreed to testify that the BB gun story was a lie, but this witness could not come to the hearing because he was "in trouble with his mother." Petitioner did not, however, ask to adjourn the hearing to obtain this witness, nor did petitioner request a subpoena to secure the witness's testimony (Education Law "3214[c]). Accordingly, I find that respondent's decision is supported by the testimony of seven student witnesses, and that the proffered motive for lying about the incident is not supported by specific facts in the record.

Petitioner further contends that the district's attorney improperly refused to give him copies of prior written statements of the students at the hearing. The record indicates that petitioner had the opportunity to review some or all of the statements before the hearing. At the conclusion of the witness testimony and Enrique's statement, petitioner asked the district's attorney whether the statements were available for the hearing. The attorney said no, that he had wanted the actual testimony rather than the statements, and that the statements would not be considered. Petitioner did not press to obtain copies, but stated that some of the statements contradicted testimony given at the hearing. No specifics of such contradictions were provided at the hearing or in the petition, nor were any alleged inconsistencies discussed during the testimony of the witnesses. Thus, petitioner has not identified any prejudice or effect on the hearing due to the alleged improper withholding of the statements, or alleged that he was unable to cross-examine the district's witnesses without the statements. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Tooley, 39 Ed Dept Rep ___, Decision No. 14,253; Appeal of Logan, 38 id. 694, Decision No. 14,120), and petitioner has failed to sustain his burden on this issue.

After the hearing, on March 20, 1998, Enrique took a polygraph examination. Petitioner submits in this appeal an unsigned, unsworn document dated March 20, 1998, which purports to be an opinion by an unidentified polygraph examiner that Enrique "showed no deception" in answering four questions relating to whether he lied about possession and ownership of the BB gun. Petitioner also alleges in his petition that, at the polygraph examination, Enrique had related that it was another student, "MD," who had the BB gun and fired it out the window. No information is provided about the total number of questions, or the examiner's conclusions regarding other questions.

The hearing officer at a disciplinary hearing must initially determine the admissibility of such evidence (Education Law "3214), and the polygraph results were never offered by petitioner as part of the hearing record. I also note that petitioner presents no explanation why such examination could not have been performed during the four weeks between the incident and the hearing. Similarly, although he gave a statement at the hearing, Enrique did not relate in the record that the BB gun actually belonged to MD, and the only evidence of such allegation is presented in the petition in this appeal. As these two items of purported evidence are not part of the hearing record, I will accordingly not consider the polygraph report or the allegation that the BB gun actually belonged to MD (Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126).

Finally, I do not find the penalty excessive. The sanction imposed must be proportionate to the severity of the offense involved (Appeal of Esther F., 39 Ed Dept Rep ___, Decision No. 14,258; Appeal of Uebel, 38 id. 375, Decision No. 14,058; Appeal of Alexander, 36 id. 160, Decision No. 13,689). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Esther F., supra; Appeal of Alexander, supra). Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding petitioner's son guilty of the offense charged and imposing a penalty of suspension from school for the remainder of the 1997-98 school year.

I have considered the other arguments raised by petitioner, and find them without merit.

THE APPEAL IS DISMISSED.

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