Appeal of A STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the City School District of the City of Canandaigua regarding student discipline.

Decision No. 17,189

(September 21, 2017)

Shebitz Berman Cohen & Delforte, P.C., attorneys for petitioner, Jacob S. Claveloux, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Canandaigua to impose discipline on his daughter (“the student”).  The appeal must be dismissed.

The student was enrolled in respondent’s high school at all times relevant to this appeal.  Prior to attending a school dance on a Saturday evening, the sister of one of the student’s friends brought the student and two other girls out to dinner.  While the student was in a car parked in a restaurant parking lot, the student’s friend located a bottle of whiskey.  When the friend initially presented it to the student, she laughed and took no action.  The friend subsequently opened the bottle and took a drink.  The friend consumed such a sufficient amount of whiskey that she “coughed” and her face turned red.  The friend then gave the bottle to the student.  At the hearing, the student testified that she “put it up to [her] lips” and “that was enough for [her] to know that it was terrible.”  The student further testified that “it tasted really gross,” so she “put it back.”  Thereafter, the girls left to attend the dance.

When the girls arrived at the dance, two chaperones noticed that the student and her friend smelled of alcohol.  The assistant principal subsequently approached the friend and told her that “several” chaperones had smelled alcohol on her.  The friend admitted to consuming a “gulp” of alcohol.  The student testified at the hearing that both she and the friend “admitted to [drinking alcohol]” and “went back in the [principal’s] office.”  The principal generated a discipline report, which the assistant principal hand-delivered to the student’s mother when she picked the student up later that evening.[1]  Petitioner and the student’s mother were informed that the student would be suspended for five days, beginning Monday, September 25.

By notice dated September 21, the superintendent informed petitioner and the student’s mother that a superintendent’s hearing would be convened on Thursday of that week to determine if the student would be suspended from school from more than five days.  The notice also stated that a manifestation determination review (“MDR”) would also be convened.

The hearing convened as scheduled.  At the hearing, the parties agreed to amend the charge against the student, which had previously alleged that the student admitted to drinking “a big gulp of whiskey.”  As amended, the student was charged with “[p]ossessing, consuming, selling, distributing or exchanging alcoholic beverages” based on the following factual allegations which occurred on Saturday, September 19:

When [the student] and another student arrived to the dance they walked by two chaperones who believed they smelled alcohol on their breath.  When asked by [the assistant principal], both students admitted to drinking alcohol prior to the dance.

At the hearing, the student admitted her guilt as to the amended charge.  Following this admission, a manifestation team convened and determined that the student’s conduct was not a manifestation of her disability.

On September 25, the superintendent found the student guilty of the charged offense and imposed a suspension of ten school days in addition to the initial five-day suspension.  However, the superintendent indicated that the student could return to school after serving three days of this suspension if she agreed to enroll in a substance abuse diversion program.[2]  Petitioner and the student’s mother agreed to the substance abuse diversion program option.

In an email dated September 25, petitioner and the student’s mother requested home tutoring instead of alternative instruction delivered at the district’s off-site suspension program, where the student had served her initial five-day suspension.

Petitioner appealed the superintendent’s decision to respondent.  Respondent denied petitioner’s appeal on October 9.  This appeal ensued.

Petitioner contends that respondent did not prove, by substantial and competent evidence, that the student engaged in the charged offense.  Specifically, respondent argues that the student did not, in fact, consume alcohol.  Petitioner further complains that he was not afforded an opportunity to confront complaining witnesses prior to the student’s five-day suspension.  Petitioner also objects to the quality and quantity of the alternative instruction provided to the student during her suspension.  Petitioner further argues that the student did not receive her “[Individualized Education Plan]-mandated services and accommodations” during her period of suspension.  Petitioner also argues that the student’s penalty was excessive.  Petitioner requests reversal of respondent’s decision and expungement of the student’s record.

Respondent contends that the appeal must be dismissed for improper personal service.  Respondent further contends that it complied with Education Law §3214 in imposing the initial five-day suspension and that the student’s admissions constituted competent and substantial evidence that she engaged in the charged conduct.  Respondent additionally argues that the imposed penalty was proportionate to the offense, that petitioner’s claims regarding special education services are not within the jurisdiction of an appeal brought under Education Law §310 and that petitioner’s request to annul the suspension is moot to the extent that the student has already served the suspension.

Petitioner raises new assertions in his memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, I have not considered those portions of petitioner’s memorandum of law which pertain to a newly-added claim, which should have been included in the petition.

The appeal must be dismissed for lack of personal service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Here, petitioner’s affidavit of service indicates that a process server served the papers on Rebecca Donovan, “who represented that he/she was authorized to accept service....”  However, in an affidavit, Ms. Donovan avers that the process server approached her on November 13, 2015, stating that “he needed to deliver a package to the [d]istrict [c]lerk.”  Ms. Donovan replied that the district clerk was not available and asked if she could take the package instead.  The process server agreed and gave Ms. Donovan an envelope.  Ms. Donovan contends that the process server did not inform her what was inside the envelope and that she was only “later informed that the envelope contained the [p]etition that is the subject of this proceeding.”  Ms. Donovan additionally avers that she is a receptionist and is not authorized to accept service on behalf of the district.

In response, the process server submits an affidavit stating that he told Ms. Donovan “that [he] had legal papers to serve to the [d]istrict [c]lerk,” and that Ms. Donovan “took the papers.” 

On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met his burden of proving that proper service was made on respondent (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).  Therefore, because petitioner failed to effect proper service upon respondent, the appeal must be dismissed (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

In light of this disposition, I need consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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