Appeal of T.J. from action of the Board of Education of the Gates-Chili Central School District regarding student discipline.

Decision No. 17,040

(February 10, 2017)

Sigüenza Law Offices, attorneys for petitioner, Teodoro Sigüenza, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Sara E. Visingard, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Gates-Chili Central School District to impose discipline on him.  The appeal must be dismissed.

During the 2015-2016 school year, petitioner was a student at respondent’s high school.  On April 20, 2016, the district’s assistant principal received a call informing him that petitioner might be under the influence of marijuana.  The assistant principal proceeded to petitioner’s physical education class, where he encountered petitioner in the locker room.  According to the assistant principal, petitioner had bloodshot eyes, a lethargic presentation, smelled of marijuana, and struggled to open his locker.  Suspecting that petitioner was under the influence of marijuana, the assistant principal brought him to the nurse’s office for an assessment.  The nurse conducted a substance abuse assessment and concluded that petitioner was under the influence of marijuana.  According to the assistant principal and the school nurse, petitioner admitted to smoking marijuana earlier that morning.

In a letter to petitioner’s parents dated April 20, 2016, the interim and assistant principals charged petitioner with insubordination; conduct that endangered the safety, morals, health or welfare of others; and disruptive and/or disorderly conduct.  The principal imposed a five-day out-of-school suspension from April 21 through April 27, 2016.

In a letter dated April 21, 2016, the associate superintendent for instruction, writing on behalf of the superintendent, informed petitioner’s parents that the district would convene a superintendent’s hearing pursuant to Education Law §3214 on April 25, 2016.  The hearing convened as scheduled.

In a letter dated April 26, 2016, the superintendent determined that petitioner was guilty of the charged conduct.  The superintendent suspended petitioner through December 9, 2016 or until he obtained all necessary credits to graduate, whichever event occurred sooner.

Petitioner appealed the superintendent’s decision to respondent.  In an undated letter which petitioner’s counsel received on May 11, 2016, respondent’s president informed one of petitioner’s parents that respondent had upheld the superintendent’s determination at a May 10, 2016 board meeting.  This appeal ensued.

Petitioner argues that the district violated its own policy by failing to contact the police after determining that he was under the influence of marijuana.  Petitioner further asserts that he did not commit the charged offense, and that the evidence which the superintendent relied upon was subjective and unreliable.  Petitioner also contends that the assistant principal coerced him into admitting his guilt.  Finally, petitioner argues that respondent relied upon an incorrect provision of a district policy in denying his appeal.  Petitioner seeks orders permitting him to return to school, take final exams in anticipation of graduation, and enjoy “the rights and privileges” of all district students, including graduation.  Petitioner additionally seeks expungement of all references to the April 20, 2016 incident from his record.

Respondent contends that the appeal must be dismissed: (1) as untimely; (2) because petitioner was an unemancipated person under the age of 18 during the time in which he could have commenced a timely appeal;[1] (3) for improper service; (4) for failure to join petitioner’s parents or individual district employees; (5) as moot due to petitioner’s graduation from high school; and (6) for failure to serve a complete copy of the petition on respondent.  Respondent further contends that petitioner fails to demonstrate a clear legal right to the requested relief, that its determination was not arbitrary or capricious, and that the superintendent’s determination was supported by substantial and competent evidence.

The appeal must be dismissed for lack of proper service.  Petitioner’s affidavit of service indicates that the petition was served upon William Domm (“Domm”) respondent’s personnel department on July 8, 2016. The district indicates that Domm is not authorized to accept personal service and denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]).  Petitioner submits no reply to respondent’s claim of defective service.  Thus, the affidavit of service submitted by petitioner, itself, is defective and does not establish that service was properly effected upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Consequently, because service is defective, the appeal must be dismissed (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

The appeal must also be dismissed as 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 student 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).

Here, respondent upheld the superintendent’s determination on May 10, 2016.  Petitioner admits that his counsel received a letter communicating this determination on May 11, 2016.  Therefore, petitioner was required to serve a petition on or before June 10, 2016.  Petitioner’s service of the petition on July 8, 2016, then, was untimely.[2]  Petitioner sets forth no good cause, or any cause, in his petition to excuse this delay.  Therefore, the appeal must be dismissed as untimely.

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

THE APPEAL IS DISMISSED.

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