CATE, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Prattsburgh Central School District concerning a complaint against a teacher. The appeal must be dismissed.

On December 7, 1999, during a team meeting in a break in the action of a sporting event, a teacher and coach in respondent's school district made physical contact with petitioner's son M.W., a team member. The incident occurred in a locker room in front of other team members and respondent's assistant coach, according to petitioners. The extent of the physical contact is in dispute. The teacher reports in a December 16, 1999 statement, requested by respondent's Assistant Superintendent Jeffrey Black:

Petitioners claim that the teacher struck their son M.W. in the face. They say that the teacher continued to verbally abuse their son as he sat in tears with his hands over his head.

On December 16, 1999, petitioners and their son M.W. met with the teacher to discuss the incident. On December 17, 1999, the teacher provided respondent's Assistant Superintendent Black with a written report on the meeting. In that report, the teacher stated that he apologized to petitioners and their son M.W. for the incident, but maintained that, "it was a soft tap," and that he did it to get the student's attention. The teacher also stated that when the meeting was over "both sides were satisfied."

Assistant Superintendent Black states that he spoke with an assistant coach about the incident, and that the assistant coach indicated that the incident was nothing serious. Assistant Superintendent Black also states that after meeting with the teacher, petitioner J.W. cancelled a scheduled meeting with Superintendent James McCormick about the incident. According to Mr. Black, J.W. stated that there was no longer an issue. Assistant Superintendent Black states that he advised J.W. that he would continue to monitor the situation.

On December 20, 1999, Assistant Superintendent Black issued a memorandum to the teacher advising him:

This memorandum was placed in the teacher's personnel file. Mr. Black also provided the teacher with Rules of the Board of Regents and Regulations of the Commissioner of Education on the use of corporal punishment.

Petitioners claim that on February 29, 2000 during class, the teacher at issue acted in a manner unbecoming a teacher by making threatening comments in reference to petitioner J.W. and his son M.W. Specifically, petitioners claim that the teacher called petitioner J.W., "a jackass and stated that someone should make [petitioner's son M.W.] leave the school district." Respondent denies this allegation.

On March 1, 2000, petitioners wrote Superintendent McCormick and asked that action be taken against the teacher for the December 7, 1999 incident, and the remarks the teacher allegedly made on February 29, 2000. After receiving this complaint and as a result of petitioner J.W.'s continuing concerns, Assistant Superintendent Black changed the schedule of petitioners' son M.W. so that he would not come into contact with the teacher at issue.

On March 13, 2000, petitioners presented their complaints about the teacher to respondent board. Following that meeting, respondent asked its attorney, John K. McCarthy, to investigate the matter. Mr. McCarthy interviewed three students whom the petitioners claim were physically assaulted by the teacher in the 1998-99 or 1999-2000 school year. Respondent's attorney was unable to find any incident in which the teacher assaulted or threatened a student.

After that investigation, respondent issued a March 23, 2000 written determination, finding that, "The administration has taken appropriate action in redirecting [the teacher] in all matters cited in your statement." In addition, it directed Superintendent McCormick to "reemphasize to [the teacher] that any physical contact with students which may be interpreted as abusive is prohibited by Education Law and district policy."

Superintendent McCormick met with the teacher on March 24, 2000, and reemphasized this district policy, and a memorandum was placed in the teacher's personnel file confirming this meeting. This appeal ensued.

Petitioners contend that the teacher's actions on December 7, 1999 and February 29, 2000, and a series of incidents with students beginning in the 1996-97 school year indicate that the teacher is a threat to student safety. Petitioners request the teacher's immediate dismissal, an investigation of the teacher's conduct and competency, an investigation of Superintendent McCormick's actions in relation to their complaints, and an investigation into the actions and findings of respondent board.

Respondent contends that its actions in connection with petitioners' complaints against the teacher were proper and appropriate. Respondent also alleges a number of procedural defenses: that the petition was not properly served, that the appeal is untimely, and that the appeal seeks relief in excess of the relief requested from respondent.

First, I will address the procedural issues. Petitioners seek the teacher's dismissal. If I were to decide the appeal in petitioners' favor, the rights of the teacher would be affected. Accordingly, the teacher is a necessary party to this appeal and should have been named and served with a copy of the notice and petition. Inasmuch as petitioners failed to join the teacher as a party, the appeal must be dismissed (Appeal of Rider, 39 Ed Dept Rep 282, Decision No. 14,238; Appeal of Lease, 39 id. 215, Decision No. 14,219).

Respondent contends that the petition was not served in accordance with section 275.8 of the Regulations of the Commissioner of Education because it was not served upon a party designated by the board of education to accept service. However, section 275.8 clearly states that if a school district is named a party respondent, any board member may be served. Here, the petition was served on a board member in accordance with the regulation. Also, respondent contends that petitioners violated section 275.8 by serving the district themselves. However, the affidavit of service confirms that a nonparty over the age of 18 served the petition upon the district. Respondent provides no evidence rebutting the affidavit of service. I therefore find that the petition was properly served in accordance with 8 NYCRR "275.8.

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent contends that the appeal is untimely because it was not commenced within 30 days from the December 20, 1999 memorandum of Assistant Superintendent Black to the teacher, in which the teacher was advised that it was inappropriate to use physical contact as a method of redirection or motivation. I do not agree. Petitioners are appealing the March 23, 2000 determination of respondent board, which found that the administration had acted appropriately in addressing petitioners' complaint against the teacher. Because the appeal was commenced within 30 days of that determination, I will not dismiss the appeal as untimely.

Even if this appeal were not dismissed on procedural grounds for failure to join a necessary party, it would be dismissed on the merits. The record reflects that respondent properly addressed petitioners' complaints. Petitioners and their son M.W. met with the teacher, and Assistant Superintendent Black spoke to petitioners about the December 7, 1999 incident. Mr. Black required the teacher to provide written reports describing the incident. He also interviewed an assistant coach about the incident. He issued a written warning to the teacher not to use physical contact with students as a method of redirection or motivation, and placed this warning in the teacher's personnel file.

In addition, petitioners were permitted to present their complaints about the teacher to respondent board. Respondent ordered its attorney to conduct an investigation, which was done. Respondent's attorney interviewed three students whom petitioners claim the teacher physically assaulted but could not find any incident in which the teacher assaulted or threatened a student. Respondent determined that the administration acted properly but took the additional step of ordering Superintendent McCormick to reemphasize to the teacher that physical contact with students which may be interpreted as abusive is prohibited. Superintendent McCormick did reemphasize this directive with the teacher, and a memorandum confirming this meeting was placed in the teacher's personnel file.

Petitioners have not provided sufficient evidence in the record before me to substantiate their claim that respondent board and Superintendent McCormick acted improperly in response to their complaints against the teacher. Petitioners do not provide sworn statements by their son M.W. as to the events of December 7, 1999, nor do they provide sworn statements from witnesses. In addition, petitioners do not provide sworn statements from individuals who were present on February 29, 2000, when the teacher allegedly made threats against petitioner J.W. and his son M.W.

Petitioners identify a number of incidents involving other students and this teacher in the 1996-97, 1998-99, and 1999-2000 school years, in an effort to show that the teacher has engaged in a pattern of physical abuse against students. Except in one case, petitioner does not provide sworn statements from these students. In a letter dated June 5, 2000, petitioner belatedly attempts to submit a deposition by a student filed with the New York State Police on March 10, 2000, and related correspondence. Petitioners did not request permission to submit these additional exhibits to me in accordance with section 276.5 of the Commissioner's regulations, nor is there any evidence that petitioners served respondent with these new papers as required by section 276.5. Therefore, I will not consider these exhibits. However, even if I were to consider them, they do not establish that the teacher engaged in a pattern of physical abuse against students. The deposition presents the student's version of the event, and I do not have the teacher's account before me. Furthermore, the deposition's probative value is greatly diminished by the fact that it was taken nearly three months after the alleged incident.

Petitioners request that I conduct an investigation of the teacher's conduct and competency, and the actions of Superintendent McCormick and respondent board. However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of DiStefano, 36 id. 217, Decision No. 13,705). In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of DiMaso, 39 Ed Dept 827, Decision No. 14,394; Appeal of Logan, 38 id. 694, Decision No. 14,120; Appeal of Phyllis and Marc B., 38 id. 301, Decision No. 14,039). Petitioners have failed to establish in the record before me that respondent or its superintendent acted improperly in this matter.

I have reviewed petitioners' remaining contentions and find them without merit. In view of the foregoing, it is unnecessary to address respondent's remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

---