Appeal of J.H. and T.H., on behalf of their son J.H., from action of the Board of Education of the City School District of the City of Auburn, Superintendent Constance Evelyn, Principal Brian Morgan, Assistant Principal Madalyn Stowell, Assistant Superintendent for Instruction Jeffrey Pirozzolo, Hearing Officer Randy Ray, and School Resource Officers Paul Martin and James Slayton, regarding student discipline.

Decision No. 16,687

(November 17, 2014)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Heather M. Cole, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the decisions of the Board of Education of the City School District of the City of Auburn (“board”), Superintendent Constance Evelyn (“superintendent”), Principal Brian Morgan (“principal”), Assistant Principal Madalyn Stowell (“assistant principal”), Assistant Superintendent for Instruction Jeffrey Pirozzolo (“assistant superintendent”), Director of Personnel Relations for the Cayuga-Onondaga Board of Cooperative Educational Services (“BOCES”) Randy Ray (“hearing officer”), School Resource Officer Paul Martin (“SRO Martin”), and School Resource Officer James Slayton (“SRO Slayton”) (collectively “respondents”), to suspend their son, J.H.  The appeal must be dismissed.

During the 2012-2013 school year, J.H. was a junior enrolled in the City School District of the City of Auburn (“district”).  That school year, J.H. was disciplined for alleged misconduct occurring on five separate occasions – October 16, 2012; January 15, 2013; February 7, 2013; March 6, 2013; and March 20, 2013 – each of which resulted in either an in-school or out-of-school suspension.  While petitioners appear to challenge respondents’ actions with respect to all disciplinary measures imposed, the petition centers upon the discipline imposed in connection with the March 6, 2013 alleged misconduct, which resulted in a long-term out-of-school suspension, beginning on April 9, 2013, as well as the March 20, 2013 alleged misconduct.[1] 

According to respondents, the district’s student handbook requires students to obtain permission before arriving late to, leaving, or missing a class.  Notwithstanding this requirement, according to respondents, during the 2012-2013 school year, J.H. would often deviate from his class schedule without permission.  According to petitioners, J.H. would regularly go to another teacher’s classroom instead of attending study hall and call the study hall teacher to “let them know he was there.”  Respondents deny that they ever approved this practice, and assert that, pursuant to a behavior contract and meeting with petitioners in February 2013, J.H. was specifically directed to have a hall pass in order to deviate from his class schedule. 

The record indicates that, during J.H.’s study hall period on March 6, 2013, J.H. called his study hall teacher from the gym locker room to advise of his location.  J.H. did not have a hall pass.  The assistant principal advised the study hall teacher that J.H. needed a hall pass, so J.H. was instructed to report to study hall.  According to respondents, J.H. took an extended amount of time to report to study hall, and then tried to convince the study hall teacher that he had been present in study hall longer than he actually had been.  As a result, he was sent to see the assistant principal. 

The assistant principal met with J.H. and reminded him of the need to have a hall pass, which J.H. stated he understood.  According to respondents, J.H. went to his next class but eventually left without permission and went to the student services suite (“suite”), where the school psychologist and school social worker’s offices are located.  J.H. was visibly upset, according to the school psychologist and social worker, who attempted to calm him down and monitor him.  However, when the assistant principal entered the suite, J.H. apparently grew more agitated.  According to respondents, J.H. overturned and pushed several chairs in the suite and then left, prompting employees in the suite to call the SROs for assistance.  J.H. then left the building and sat on a bench listening to music.  While J.H. was outside, the assistant principal attempted to call petitioner T.H.  J.H. then re-entered the building, loudly uttered profane language, and left the building again, walking away from the school. 

By letter dated March 6, 2013, which the assistant superintendent hand delivered to petitioner T.H. at the principal’s request on the afternoon of March 6, 2013, T.H. was advised that J.H. would be suspended from school for five days, beginning March 7, 2013, for the following conduct:

On March 6, 2013, at approximately 11:30 a.m. [J.H.] came into the student services office area very angry.  [J.H.] did not say anything but he knows he is welcome to come to the student services office area to de-escalate his feelings.  After sitting in a chair for five minutes, [J.H.] became very angry and stood up and began to push 4 or 5 chairs which ended up scattered throughout the Student Services waiting area.  At that time, [J.H.] left the Student Service suite and walked outside and sat on a bench for about 10 minutes listening to music.  Mr. Frechette and Mr. Whipple monitored his actions outside.  [J.H.] re-entered the [school] lobby and continued to be very upset.  [J.H.] was screaming obscenities.  [J.H.] then left the lobby and entered the foyer in which he became angrier and continued to shout obscenities such as “F[] this place, You can’t send me away.”  Mr. Frechette continued to be with him.  Soon after, [J.H.] left the foyer and began to walk in the direction of Lake Ave.  Mr. Whipple was directed by the school resource officers to check on [J.H.]’s whereabouts via his car to check on [J.H.]’s safety.

The letter further advised that J.H. could return to school on March 14, 2013, and that petitioners would have an opportunity to tell their side of the story and question any complaining witnesses at an informal conference prior to the suspension if petitioners contacted the assistant superintendent before 7:45 a.m. on March 7, 2013.

On March 7, 2013, petitioners participated in an informal meeting with the principal.  According to respondents, during the informal meeting, petitioners attempted to explain J.H.’s conduct but did not ask to question any witnesses, nor did they dispute that J.H. acted inappropriately.  At the conclusion of the informal meeting, the principal verbally advised petitioners that he would be upholding the suspension. 

By letter dated March 8, 2013, petitioners requested a superintendent’s hearing with respect to J.H.’s October 16, 2012, January 15, 2013, February 7, 2013, and March 7, 2013 suspensions, as well as a “delay” of the March 7, 2013 suspension pending his hearing.  By letter dated March 13, 2013, petitioners further requested expungement of the four suspensions from J.H.’s record.  By letter dated March 15, 2013, the superintendent responded that any concerns regarding the March 7, 2013 suspension should be raised by petitioners at the superintendent’s hearing scheduled for March 22, 2013, and that the appeals of the October 2012, January 2013, and February 2013 suspensions were untimely.

 On March 19, 2013, the superintendent served a notice of charges which scheduled a superintendent’s hearing for March 22, 2013.  The notice stated that J.H. was “charged with engaging in disorderly and insubordinate conduct” in violation of the district’s code of conduct, as follows: “[o]n March 6, 2013, at approximately 11:30 AM, [J.H.] stated in the foyer area, ‘F[] this place, you can’t send me away.’  He then left the school campus without permission.”  

The record indicates that on March 19, 2013, a teacher referred J.H. to the assistant principal for leaving school grounds.  On March 20, 2013, J.H. allegedly confronted the teacher in the hallway regarding that referral, causing the teacher to feel threatened and to submit a disciplinary action form to the assistant principal.  On March 21, 2013, the assistant superintendent delivered a written notice of suspension to petitioner T.H., in which the principal advised that J.H. would be suspended for five days, beginning March 22, 2013 (“March 22, 2013 suspension”), for the following conduct:

J.H. confronted Ms. McDeid in the hallway outside of the auditorium on 3/20/13. He yelled at her about her previously referring him to the vice-principal for leaving school grounds. He stated to her, ‘Why did you do that? You didn’t have to do that! You know how it is!’ Ms. McDeid reports that J.H. was aggressive in his posture with his fists balled up at his sides. His words and behavior caused Ms. McDeid to be fearful for her safety.

An informal meeting was subsequently scheduled for March 25, 2013, at which time petitioners were given an opportunity to question the complaining teacher and review surveillance footage of the alleged incident.  Following the meeting, the principal verbally advised petitioners that he would be upholding the March 22, 2013 suspension. 

After being rescheduled from March 22, 2013, a hearing was held on April 9, 2013 regarding J.H.’s alleged misconduct on March 6, 2013.  Respondent Ray, the Director of Personnel Relations for the Cayuga-Onondaga BOCES, was designated to act as hearing officer.  At the hearing, J.H. admitted to the misconduct as charged.  At the close of the guilt phase of the hearing, the hearing officer found J.H. guilty of the charge.  During the penalty phase, the hearing officer reviewed J.H.’s anecdotal record and recommended that J.H. be suspended for an additional 90 days, through October 11, 2013.  However, he recommended that J.H. be allowed to return to school on September 4, 2013, and that the remainder of the suspension held in abeyance, upon satisfaction of certain conditions: (1) J.H. attend his tutoring sessions on a regular and consistent basis and behave in an appropriate manner; and (2) J.H. strictly abide by the district’s code of conduct upon his return to school in September.

The superintendent sustained the charges against J.H. by letter dated April 11, 2013, in which she determined that J.H. was “guilty of committing the acts, as charged by the District.”  As a result, the superintendent determined that J.H. would be suspended from April 15, 2013, through October 11, 2013 (“long-term suspension”), and that she would consider holding a portion of J.H.’s long-term suspension in abeyance, “with an early return on Tuesday, September 4, 2013, if he attends the alternative instruction (tutoring) regularly, behaves appropriately, completes his work, and abides by the District Code of Conduct.”

By letter dated April 19, 2013, petitioners requested that the superintendent allow an appeal to the board regarding the long-term suspension, as well as the October 2012, January 2013, and February 2013 suspensions.  In addition, petitioners requested an appeal of the March 22, 2013 suspension.

By letter dated May 1, 2013, the superintendent responded that, as stated in her March 15, 2013 letter, petitioners’ request to appeal the October 2012, January 2013, and February 2013 suspensions was untimely.  The letter also stated that, “in an effort to consider your Superintendent Hearing Determination appeal of the [March 22, 2013 suspension] and the decision of the informal principal hearing held on March 25, 2013, please provide the basis for the requested appeal in writing.”  By letter dated May 14, 2013, petitioners replied that there had been no hearing regarding the March 22, 2013 suspension, and reiterated their request to appeal the superintendent’s determination regarding the long-term suspension to the board.

By letter dated May 22, 2013, the superintendent upheld her determination regarding the long-term suspension, as well as the principal’s determination regarding the March 22, 2013 suspension.  She further provided that petitioners would have an opportunity to appeal these decisions to the board at its June 11, 2013 meeting.

On June 11, 2013, the board reviewed petitioners’ appeal of the March 22, 2013 suspension and long-term suspension in an executive session, during which petitioners presented the basis for their appeals.  On June 25, 2013, the board upheld the principal’s determination regarding the March 22, 2013 suspension and the superintendent’s determination regarding J.H.’s long-term suspension. 

By letter dated June 28, 2013, the board notified petitioners of its June 25, 2013 determination.  Specifically, the board found that the March 22, 2013 five-day suspension imposed a “reasonable disciplinary outcome” and that the long-term suspension following the April 9, 2013 hearing was “fair and appropriate” and supported by the record.  In addition, the letter stated that the board had decided to consider the appeals of the October 2012, January 2013, and February 2013 suspensions.  The board advised petitioners of their right to appeal to the Commissioner of Education pursuant to §310 of the Education Law within 30 days of receipt of its letter.  This appeal ensued.

Although not entirely clear, petitioners appear to challenge each of the five short-term suspensions, as well as the long-term suspension.  Petitioners assert that, among other things, with regard to the March 7, 2013 suspension, the March 6, 2013 notice of suspension was untimely and did not allow for delivery prior to the suspension; that they were not allowed to question witnesses at the March 7, 2013 informal meeting; and that they were not provided with a written determination following the informal meeting as required by the district’s code of conduct.  With regard to the March 22, 2013 suspension, petitioners appear to claim that the March 21, 2013 notice of suspension was defective; that at the March 25, 2013 informal meeting, they were not allowed to watch the surveillance video until after the witness was questioned; that the principal made rude remarks to petitioners; that the video does not prove any misconduct; and that no written decision was issued following the March 25, 2013 meeting.  With regard to the long-term suspension, petitioners assert that J.H. was deprived of due process because the hearing officer at the April 9, 2013 hearing was an attorney employed by BOCES, and the testimony of witnesses was internally inconsistent and did not “match” written statements. 

Petitioners also appear to contest the disciplinary actions of October 2012, January 2013, and February 2013, claiming that their requests to appeal to the board have been denied without the board’s knowledge, and that the district failed to inform petitioners of the existence of a police case report regarding J.H.’s February 2013 suspension.  Finally, petitioners assert that “since J.H. was involved with the State Police” regarding an alleged drug-dealing teacher in the district, the number of J.H.’s suspensions and “attempted” suspensions have increased.  Petitioners request “that the suspensions of 6 March 2013 and 22 March 2013 be expunged from J.H.’s record”; “that the Police Case Report [regarding the February 2013 suspension] be removed from J.H. [sic] record”; that the “Administrative Team” be removed for failure to properly handle student discipline, or alternatively, “trained in the proper way to handle student discipline”; and that the Commissioner “direct that an investigation be undertaken to determine if any criminal act took place with the preparation of statements and reports.”  

Respondents argue that the petition is untimely, that the claims against the hearing officer and SROs should be dismissed, and that petitioners failed to exhaust their administrative remedies with respect to the October 2012, January 2013, and February 2013 suspensions.  With respect to the short-term suspensions in March 2013, respondents assert that the issues are moot and the district’s actions were reasonable and rational.  With respect to the long-term suspension following the April 9, 2013 hearing, respondents argue that the issues are moot; the decision to suspend J.H. was based upon competent and substantial evidence; and the penalty was proportionate to the severity of J.H.’s violation of the code of conduct.  Respondents claim that the Commissioner is without jurisdiction to award certain other relief requested by petitioners.  Finally, respondents ask that I reject petitioners’ reply because it contains no affidavit of service and attempts to raise new issues or restate allegations made in the petition.

I must first address the procedural issues, beginning with the reply.  Respondents ask that I reject petitioners’ reply because it contains no affidavit of service.  Respondents appear to argue that petitioners were required by §275.9 of the Commissioner’s regulations to provide them with an affidavit of service together with the reply.  However, §275.9 of the Commissioner’s regulations contains no such requirement, and provides, in relevant part, only that “[w]ithin five days after the service of any pleading or paper ... the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted” to my Office of Counsel (see Appeal of Williams, 51 Ed Dept Rep, Decision No. 16,302).  Nonetheless, the record contains no affidavit of service showing that the reply was properly served upon respondent.  Absent evidence of service of a copy of a reply in the manner prescribed in 8 NYCRR §275.9, the contents of the reply will not be considered (see Matter of the Parents of Two Handicapped Children, 19 Ed Dept Rep 361, Decision No. 10,167).  Therefore, I need not address respondents’ claim regarding the contents of the reply. 

Respondents contend that the petition was not properly verified in accordance with 8 NYCRR §275.5.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition submitted to my Office of Counsel contained the requisite verification.  Although petitioners should have included a copy of the verification with the papers served on respondents, I will excuse this omission because petitioners are not represented by counsel and my Office of Counsel received a verified petition (Appeal of W.B., 54 Ed Dept Rep, Decision No. 16,662; Appeal of Carangelo, 49 id. 217, Decision No. 16,006; Appeal of M.M., 42 id. 323, Decision No. 14,870).

Respondents assert that the petition should be dismissed as to SRO Martin and SRO Slayton for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Petitioners’ affidavit of service indicates that the petition was served upon SRO Martin and SRO Slayton by mail.  Respondents confirm that the petition was served upon SRO Martin and SRO Slayton by mail.  Consequently, in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed as to SRO Martin and SRO Slayton for improper service (see Appeal of O.E., 53 Ed Dept Rep, Decision No. 16,577). 

Respondents contend that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  The record indicates that the board’s final determination was made on June 25, 2013, and that the board notified petitioners by letter dated June 28, 2013.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt is deemed to be July 5, 2013, and petitioners had until August 5, 2013, to commence the appeal.  Petitioners’ affidavit of personal service states that the petition was served on August 2, 2013.  The appeal is therefore timely.

Although not entirely clear from the pleadings, to the extent petitioners assert claims regarding the short-term suspensions served in October 2012, January 2013, and February 2013, respondents assert that those claims must be dismissed for failure to exhaust petitioners’ administrative remedies.  Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of J.M., 53 Ed Dept Rep, Decision No. 16,566; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578; Appeal of M.A., 45 id. 206, Decision No. 15,303).  The record indicates that the board has adopted a policy in its code of conduct that requires the parent or person in parental relation to appeal to the board prior to commencing an appeal to the Commissioner of Education regardless of the length of the suspension.  By letter dated June 28, 2013, the board advised petitioners that it would review the October 2012, January 2013, and February 2013 suspensions, and requested that petitioners submit a written appeal within 30 days of receipt of the letter.  By letter dated August 5, 2013, petitioners submitted a written appeal to the board with respect to those suspensions, and, according to respondents, the board intends to issue a written determination with respect to those suspensions.  Petitioners commenced the instant appeal pursuant to Education Law §310 on August 2, 2013 – three days prior to the commencement of their appeal to the board.  Accordingly, with respect to the suspensions imposed in October 2012, January 2013, and February 2013, including their request that the police case report relating to the February 2013 alleged misconduct be removed from J.H.’s school record, petitioners have failed to exhaust their administrative remedies and their claims must be dismissed.[2]

Petitioners’ claims regarding the two short-term suspensions in March 2013 must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Because J.H. served the March 7, 2013 and March 22, 2013 suspensions, the appeal is moot, except to the extent petitioners seek expungement of J.H.’s record (Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897).  According to respondents, the district has expunged any reference to the March 7 and 22, 2013 suspensions from J.H.’s record.  As such, no further meaningful relief can be granted and the claims are therefore moot.  

The appeal is similarly moot to the extent that J.H. has served his long-term suspension.  This appeal was commenced after J.H. had served that portion of his suspension from April 11, 2013, through the remainder of the 2012-2013 school year, and respondents assert that J.H. met all of the conditions to return to school at the start of the 2013-2014 school year on September 4, 2013, pursuant to the superintendent’s determination.  However, to the extent that petitioners seek expungement of J.H.’s record with respect to the long-term suspension, such claims are not moot. 

With respect to the long-term suspension, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).  In an appeal to the Commissioner, a 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioners’ son admitted on the hearing record to engaging in certain conduct, including screaming in the foyer area, “f[] this place, you can’t send me away,” and then leaving the school campus.  Respondents maintain that J.H.’s admission is sufficient proof of guilt, and that corroborating evidence exists to support that finding.  Indeed, the record contains sufficient proof, including witness testimony from the school psychologist and social worker, as well as witness statements and affidavits submitted in this appeal, which confirm J.H.’s screaming of obscenities in the foyer area and leaving the school campus without permission.  Therefore, I find no basis upon which to overturn respondents’ finding of J.H.’s guilt of the charge of disorderly and insubordinate conduct. 

Petitioners assert that the testimony of the school psychologist and social worker are internally inconsistent and “do not match” other written and verbal statements. However, with respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  In any event, as noted above, in light of J.H.’s admission of guilt, I find no basis upon which to overturn respondents’ finding of J.H.’s guilt of the charge of disorderly and insubordinate conduct. 

Petitioners contend that the hearing was unfair because the hearing officer was an attorney employed by BOCES who provides legal advice to the district’s “Administrative team” and was therefore not impartial.  Petitioners have failed to meet their burden on this claim.  Education Law §3214(3)(c) provides that the superintendent shall personally hear and determine the suspension proceeding or may, in his or her discretion, designate a hearing officer to conduct the hearing.  In this case, the superintendent designated the BOCES Director of Personnel Relations – an attorney who provides professional services to the district – as the hearing officer.  Petitioners did not object on the record at the hearing but now appear to claim that the hearing officer was not impartial because he is an attorney in the employ of the BOCES for which the district is a “component” and “would more likely than not have advised the Administrative team” with regard to the district’s “history” with petitioners and J.H.

There is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Appeal of a Student with a Disability, 49 Ed Dept Rep 161, Decision No. 15,986; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065).  The record indicates that the attorney appointed as the hearing officer acted solely in that capacity at the hearing, and contains no evidence that the hearing officer acted improperly or exhibited any bias.  The performance of multiple functions by individuals or groups is not a violation of due process per se, and whether a violation occurs becomes a factual determination to be made in light of the circumstances surrounding the procedure (Appeal of a Student with a Disability, 49 Ed Dept Rep 161, Decision No. 15,986; Appeal of F.W., 48 id. 399, Decision No. 15,897; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065; Matter of Payne, 18 id. 280, Decision No. 9,840).  Petitioners have failed to establish that the hearing officer was made aware of any of the facts of the case prior to the hearing, or to establish any bias or personal involvement on the hearing officer’s part (Matter of Gioe v. Bd. of Educ. of E. Williston School Dist., 126 AD2d 723, 724; Dimele by Dimele v. Potter, et al., 177 AD2d 755, 756, appeal dismissed 79 NY2d 914; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897).  As such, the claims against and relating to the hearing officer must be dismissed.

Petitioners request that I “direct that an investigation be undertaken to determine if any criminal act took place with the preparation of statements and reports.”  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

Finally, petitioners request that I direct that the “Administrative team” be “trained in the proper way to handle student discipline.”  Petitioners have failed to establish that they have a legal right to such relief and such claim must be dismissed.

     I have reviewed petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE