Appeal of A.R., on behalf of her daughter A.R., from action of the Board of Education of the North Salem Central School District regarding student discipline.

 

(December 8, 2003)

 

McGuire, Kehl & Nealon, LLP, attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Salem Central School District ("respondent") to uphold discipline imposed on her daughter, A.R., by the superintendent.  The appeal must be sustained in part.

On May 16, 2003, A.R., then a senior at respondent"s middle/high school, attended the school-sponsored Junior/Senior Prom.  By letter dated May 19, 2003, respondent"s middle/high school principal notified petitioner that A.R. was suspended from school for 5 days because she was under the influence of alcohol at the prom.  By letter dated May 20, 2003 respondent"s superintendent notified petitioner that a superintendent"s hearing was scheduled for May 28, 2003.  The letter stated A.R. was charged with:

engaging in any conduct that endangers the safety, morals, health or welfare of others . . . including possessing, consuming, selling, distributing or exchanging alcoholic beverages, drugs, controlled substances, or related paraphernalia, or being under the influence of alcohol, drugs or controlled substances.

A superintendent"s hearing was held on May 28, before a hearing officer.  After hearing testimony from the principal, teachers, and a chaperone, all of whom observed A.R. at the prom, and A.R. and petitioner, the hearing officer found that A.R. was under the influence of alcohol at the prom.  He recommended that A.R. be suspended for the remainder of the school year, including graduation ceremonies.  He also recommended that provisions be made for home instruction and end of year exams, to allow A.R. to earn her diploma.

By letter dated June 4, 2003, the superintendent informed petitioner that she had adopted the recommendations of the hearing officer.  Petitioner appealed to respondent.  Petitioner notified respondent that a significant portion of testimony was missing from the recording of the superintendent"s hearing.  She appeared before respondent on June 18, 2003.  By letter dated June 19, 2003 the district clerk informed petitioner that respondent affirmed the superintendent"s finding and penalty.  This appeal ensued.

Petitioner contends that a number of errors were made at the superintendent"s hearing and in subsequent reviews by the superintendent and respondent.  Among her allegations is that the hearing record is incomplete.

Education Law "3214(3) provides in pertinent part:

A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record . . .  An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.

Where a hearing has been held, the board of education may not properly decide an appeal from a decision suspending a student unless it reviews the entire record of the hearing (Appeal of Muldoon, 41 Ed Dept Rep 4, Decision No. 14,592; Appeal of Corbett, 12 id. 184, Decision No. 8599; Appeal of Taylor, 10 id. 95, Decision No. 8217).

In this case, respondent admits that a portion of the superintendent"s hearing was not recorded.  Respondent acknowledges that the hearing lasted several hours, yet the recording device only recorded about one hour and twenty five minutes.  Because there were several breaks in the recorded testimony, it is unclear exactly how much testimony was not recorded.  However, a portion of petitioner"s testimony and all of A.R."s testimony is missing.  Therefore, neither the superintendent nor respondent had a complete record to review.

Respondent claims this defect was remedied because petitioner was permitted to describe the content of the missing portions of the tape to respondent and to submit a written summary that A.R. read at the end of her hearing testimony.  I find that any attempted reconstruction after the fact is not sufficient for either respondent"s review or my own.  Accordingly, in the absence of a complete record, I am constrained to sustain the appeal to the extent petitioner seeks expungement (Appeal of Corbett, supra).  Because petitioner"s daughter has served the suspension and graduated from respondent"s high school, I will not remand this matter for further proceedings.

In light of the foregoing disposition, I need not address the parties" remaining contentions.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that the Superintendent"s June 4, 2003 determination and respondent"s June 19, 2003 determination be annulled and expunged from A.R."s record.

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