Appeal of R.A. and D.A., on behalf of M.A., from action of the Board of Education of the Randolph Central School District and Superintendent  Sandra Craft regarding student discipline.

 

Decision No. 14,995

 (December 8, 2003)

 

Charles Edward Fagan, Esq., attorney for petitioners

 

Hodgson, Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the suspension of their son, M.A., by the Board of Education of the Randolph Central School District ("board") and Superintendent Sandra Craft (collectively referred to as "respondents").  Petitioners also seek the removal of Sandra Craft as superintendent of schools.  The appeal and application for removal must be dismissed.

On April 22, 2002, M.A. and another student were suspended from school pending a superintendent"s hearing for possession of marijuana on school property.  A superintendent's hearing was held on May 22, 2002, on the specific charge that "[o]n or about April 22, 2002, [M.A.] violated the Randolph Central School Code of Conduct, Section VI, Subsection E, 13 in which he engaged in conduct that endangered the safety, morals, health or welfare of others through the possession of marijuana on school property."  Superintendent Craft, who at that time was the high school principal, testified on behalf of the district at the hearing. 

On May 31, 2002, Steven A. Bocciolatt, who was then superintendent of schools, issued a decision accepting the hearing examiner's recommendation and suspending the student for an additional 35 days, ending on September 27, 2002.  On or about June 28, 2002, petitioners appealed to the board, which issued a determination on July 30, 2002 upholding Superintendent Bocciolatt's decision.  On July 31, 2002, Sandra Craft became superintendent of schools.   

Petitioners attempted to appeal respondents' determination pursuant to Education Law ""306 and 310 by petition dated October 7, 2002, but by letter dated October 16, 2002, my Office of Counsel returned their petition for lack of proper verification and for improper service on respondents under ""275.5 and 275.8(a) of the Commissioner"s regulations.  Petitioners" attorney claims he never received the October 16, 2002 rejection letter and was not notified of the rejection until March 17, 2003.  Petitioners subsequently served a petition upon respondents on April 30, 2003.

Petitioners allege that the disciplinary hearing was biased, prejudicial and violated their son's rights to due process and fundamental fairness.  Petitioners further allege that the charge of "possession of marijuana" was not substantiated and that respondent Craft intentionally altered and submitted a false statement at the hearing. Petitioners maintain that the penalty imposed on their son was excessive and was imposed pursuant to an unannounced "zero tolerance" policy that was not approved by the board.  Petitioners further maintain that respondents purposely and maliciously delayed notification to petitioners' counsel of the outcome of the appeal to the board.  Petitioners request that respondent Craft be removed as superintendent of schools.

Respondents deny petitioners' allegations and contend that the appeal must be dismissed as untimely, for failure to state a claim, for failure to specify any requested relief, and for failure to establish any basis for removal of respondent Craft as superintendent of schools.

An appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days of the decision or action complained of unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16).  An application for removal pursuant to "306 is subject to the same 30-day requirement (8 NYCRR "277.1; Application ofKavitsky, 41 Ed Dept Rep 231, Decision No. 14,672).

By letter dated July 31, 2002, Superintendent Craft notified petitioners of the board's July 30, 2002 determination.  There is no indication in the record as to the date that petitioners received the July 31, 2002 letter.  Affording the customary five days for mailing, excluding Sundays and holidays (Appeal of O.W., 43 Ed Dept Rep __, Decision No. 14,949; Appeal of Spensieri, 40 id. 51, Decision No. 14,419), the date of receipt of the decision is deemed to be August 6, 2002.   Thus, petitioners had 30 days, until September 5, 2002, to commence their appeal.  Petitioners did not properly commence the appeal until April 30, 2003.   Accordingly, the appeal is untimely. 

Petitioners appear to contend that the statute of limitations did not begin to run until their attorney received, at his request, a copy of the board's determination on September 9, 2002, and that they therefore had until October 9, 2002 to commence their appeal.  However, the Commissioner"s regulations do not require that counsel also receive a copy of the decision in order to trigger the 30-day statute of time limitations (see 8 NYCRR Parts 275, 276 and 277).  Petitioners" receipt of the decision on August 6, 2002 triggered the 30-day period.  Furthermore, it appears from the record that, at least as of August 20, 2002, which date was still within the 30-day time limitation for commencement of the appeal, petitioners" attorney was in possession of a copy of the July 31, 2002 notification letter. 

Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684; Appeal of Prentice, 38 id. 736, Decision No. 14,130).  I find no unusual circumstances in this appeal to excuse petitioners" delay.

     Even if I accepted petitioners" argument that they had until October 9, 2002 to appeal, petitioners did not properly commence an appeal by that date.  An appeal is commenced by personal service of a notice of petition and petition on respondents (8 NYCRR "275.8).  The affidavit of service indicates that a petition was improperly served upon the "Randolph Central School" by mail on October 7, 2002.  Furthermore, there is no indication that respondent Craft was individually served with this petition as required (see Appeal of Burnett, 40 Ed Dept Rep 424, Decision No. 14,517).  Petitioners" ineffective attempt to commence the appeal, in October 2002, is not a valid excuse for their failure to commence this proceeding in a timely fashion (Appeal of Ekpecham, 41 Ed Dept Rep 168, Decision No. 14,651).

Since petitioners failed to properly commence their appeal within 30 days of receipt of respondent's determination, their assertions that they never received the October 16, 2002 rejection letter from my Office of Counsel, or otherwise became aware of its contents until March 2003, are irrelevant since they do not provide an excuse for the initial untimeliness of their appeal.  Even if I were to consider petitioners' assertions, petitioners did not commence their appeal until April 30, 2003, more than 44 days after their attorney admits being advised by my Office of Counsel of the defective October 2002 petition.  Therefore, the appeal and application for removal must be dismissed as untimely (Appeal of Davila, 41 Ed Dept Rep 419, Decision No. 14,732; Application of Ekpecham, supra).

     In light of this disposition, I need not address the parties' remaining contentions.

 

THE APPEAL IS DISMISSED AND THE APPLICATION FOR REMOVAL IS DENIED.

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