Appeal of L.B., on behalf of his grandson A.C., from action of the Board of Education of the Edwards-Knox Central School District, Superintendent Suzanne Kelly and Principal Amy Sykes, regarding student discipline.

Decision No. 16,998

(November 15, 2016)

Silver & Collins, attorneys for respondents, Andrew W. Silver, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Edwards-Knox Central School District ("respondent") to discipline his grandson, A.C. (“student”).  The appeal must be dismissed.

During the 2013-2014 school year, the student attended respondent’s school as an eighth grader.  Acting on a report from a parent within the district, respondent contacted the St. Lawrence County police regarding an incident involving the student.[1]  The student was interviewed by a Deputy Sheriff, who obtained a signed statement from the student dated March 29, 2014.  In the statement, the student affirmed that he had engaged in inappropriate physical contact with two male students in the locker room of the school.[2]  In a letter dated April 3, 2014, Principal Amy Sykes (“Principal Sykes”) informed petitioner that the student would be suspended beginning April 4, 2014, pending a superintendent’s hearing to be held on April 10, 2014.  The letter informed petitioner that the student was being suspended based on allegations of “sexual misconduct and bullying,” and that petitioner was entitled to an informal conference with Principal Sykes where he would have the right to confront complaining witnesses.  In a letter to petitioner dated April 7, 2014, the district’s superintendent, Suzanne Kelly (“Superintendent Kelly”) confirmed that a hearing would be held on April 10, 2014.

The superintendent’s hearing took place on April 10, 2014.  In a written decision dated April 17, 2014, Superintendent Kelly suspended the student for the remainder of the 2013-2014 school year and ordered that the student receive ten hours per week of tutoring.  On April 29, 2014, respondent upheld the superintendent’s decision.[3]  This appeal ensued.  Petitioner’s request for interim relief was denied on June 10, 2014. 

Petitioner urges that I overturn the decision made by the superintendent to suspend the student for the remainder of the 2013-2014 school year.  Petitioner argues that many procedural errors occurred in connection with the hearing and during his subsequent appeal to respondent.  Petitioner argues, among other things, that the student was never questioned about the incident, that petitioner did not receive adequate notice of the hearing in violation of the Education Law, that no one at the hearing was sworn under oath and that the student was not given the opportunity to confront complaining witnesses.  Petitioner also claims that he was not afforded due process with regard to his appeal to respondent.  Petitioner asks that the student be reinstated to school and his extracurricular activities, and that Superintendent Kelly, Principal Sykes, and respondent’s president be removed.  Petitioner does not seek expungement of the suspension from the student’s record. 

Respondent argues that there were no procedural errors warranting reversal of the outcome of the hearing, and that the suspension of the student was based on competent and substantial evidence.

In an undated letter received by my Office of Counsel on June 2, 2014, petitioner attempts to submit new evidence, including a letter sent by the district to all parents in May 2014, and information regarding a separate alleged incident among students.  Respondent replied in a letter dated June 5, 2014, asserting that the new evidence is irrelevant to the issues presented in this appeal.  I agree.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Because the new evidence has no bearing on the issues in this case, I have not considered it.

Petitioner requests the removal of respondent’s board president, Superintendent Kelly, and Principal Sykes.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  While the record indicates that the petition was personally served on the district clerk, Superintendent Kelly and Principal Sykes, the board president was neither named in the caption nor was he served with a copy of the petition or a notice of petition.  Petitioner’s request to remove the board president must therefore be dismissed for failure to join him as a necessary party.

Further, petitioner’s request for the removal of Superintendent Kelly, Principal Sykes and the board president must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.  Section 277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office. In this case, petitioner failed to comply with §277.1(b), but instead used the notice prescribed under §279.3 for a petition seeking review by a State Review Officer of the determination of an impartial hearing officer concerning the identification, evaluation, program or placement of a student with a disability pursuant to Education Law, Article 89 and Part 200 of the Commissioner’s regulations.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Application of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050; Application of Barton, 48 id. 189, Decision No. 15,832; Application of Knapp, 41 id. 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

Finally, to the extent petitioner seeks the removal of Principal Sykes, I lack jurisdiction to do so.  Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officers. Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”  Principals are district employees and not school officers subject to removal under §306 (Appeal of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of a Student with a Disability, 36 id. 181, Decision No. 13,694).  I therefore lack jurisdiction to remove Principal Sykes.

Next, to the extent petitioner requests that I conduct an investigation, 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).  This claim, too, must be dismissed.

As to petitioner’s remaining claims, the appeal 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).  Respondent’s determination that the student should be suspended for the remainder of the 2013-2014 school year was rendered on April 17, 2014.  Petitioner appealed this determination on May 19, 2014, and his request for interim relief was denied on June 10, 2014.  The 2013-2014 school year ended shortly thereafter.  By the time the record in this matter was fully submitted, the student had served the entire suspension, and as noted above, petitioner did not request that the suspension be expunged from the student’s records.  Therefore, the appeal is moot and must be dismissed.

THE APPEAL IS DISMISSED

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