Appeal of T.G., on behalf of his son K.G., from action of the Delhi Central School District relating to a suspension and application for the removal of a school district officer.

Decision No. 17,195

(September 27, 2017)

Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for respondent, Cameron B. Daniels, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the actions of the Delhi Central School District (“district”) and various school district officers (collectively “respondents”) related to the suspension of his son, K.G. (“student”).  Petitioner also seeks the removal of Jason Thomson, Superintendent of Schools.  The appeal must be dismissed and the application denied.

Petitioner is a district resident whose children attended respondent’s schools for the duration of the events complained of in this appeal.[1]  The record indicates

that the student has a history of disciplinary infractions, including warnings, suspension, and Alternative Education Services (“AES”) placements.  The petition recounts various events occurring over the course of approximately 15 months, from November 2014 to January 2016, in which the student had multiple interactions with district staff and law enforcement.

Initially, I note that the petition is rambling and unclear and does not contain a clear request for relief with respect to each of the violations of law alleged by petitioner.  Petitioner appears to contend that respondent and various district employees discriminated against the student, acted in an arbitrary and capricious manner by suspending the student, and failed to provide due process. Petitioner further alleges violations of various federal and State laws, including the Individuals with Disabilities Education Act (“IDEA”), the Dignity for All Students Act (“DASA”), and Education Law §3214. Additionally, petitioner seeks the removal from the student’s record of any reference to a January 12, 2016 suspension.  Petitioner also seeks the removal of Jason Thomson from the office of superintendent of schools.

Respondents contend that the petition should be dismissed on a number of procedural grounds. Specifically, respondents maintain that the petition is untimely, fails to comply with the specific notice requirements of 8 NYCRR §277.1(b), fails to comply with 8 NYCRR §275.4, and that service upon the individual respondents was improper.  Respondents also contend that the petition fails to identify the relief sought, fails to state a claim upon which relief may be granted, and that petitioner failed to exhaust administrative remedies with respect to claims made under IDEA.  Respondents maintain that their actions were, in all respects, proper.

Most of petitioner’s claims must 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).  Most of the actions about which petitioner complains relate to the suspension of his son in 2013, respondents’ actions in response to an incident in November 2014 in which the student revealed to a guidance counselor a daydream about a school employee being shot and dying, and various alleged actions by respondents in the 2015-2016 school year.  Petitioner’s affidavit of service indicates that the petition was served on June 16, 2016.  To the extent petitioner seeks removal of the superintendent based on such actions, the application is clearly untimely and petitioner has not established that the appeal was commenced within 30 days of his good faith discovery of the alleged misconduct.  Petitioner has not provided an excuse for the delay and the application for removal must be dismissed as untimely (Application of Paladino, 53 Ed Dept Rep, Decision No. 16,595; Appeal of Wachala, 50 id., Decision No. 16,155).  Similarly, to the extent petitioner seeks expungement of the January 16, 2016 suspension from the student’s record, the appeal was not commenced until almost five months after such suspension and is untimely.

However, attached to the petition is a letter from respondent’s board president to which was attached a report prepared by Child Protective Services (“CPS”).  The record indicates that the CPS report was sent to petitioner with the letter from respondent’s board president dated May 23, 2016 in response to a 2014 complaint by petitioner regarding some of the actions that are the subject of this appeal.  In the letter, the board president states “the Board now considers this matter closed.”  Thus, to the extent petitioner challenges the board’s action in regard to the May 23^rd letter, I find the appeal to be timely.

The appeal must also be dismissed for lack of proper service on the individual respondents.  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).  The affidavit of service submitted with the petition indicates that petitioner served only the district clerk.  Therefore, to the extent that petitioner intended to join the superintendent, the school principal, and the individual referred to throughout the petition as “disciplinarian” as named respondents, he failed to properly serve such individuals in accordance with the requirements of §275.8(a).  As service was improper, I must dismiss the appeal as against them (Appeal of Houdek, 47 Ed Dept Rep 415, Decision 15,740) for failure to join necessary parties.

With respect to petitioner’s application for removal of the superintendent, the defective notice of petition warrants denial of the application.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id. Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).

To the extent that petitioner requests an investigation into the principal’s educational background, I note that 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).

Petitioner’s remaining claims must be dismissed for failure to state a claim upon which relief may be granted.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which petitioner deems himself entitled” (8 NYCRR §275.10).  Where, as here, the petitioner is not represented by counsel, a liberal interpretation of the regulation is appropriate absent prejudice to the opposing party (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,106, aff’d 101 AD3d 73).  In this case, petitioner has made no request for relief other than his request for removal of the superintendent, expungement of the January 2016 suspension, and a request for an order directing respondents to stop using the threat of referrals to law enforcement, making such referrals and using personal cell phones of district staff to generate evidence for student discipline.  I am otherwise unable to determine with specificity the nature of the relief sought by petitioner or the basis for petitioner’s claim that he is entitled to relief, and I find that this extreme lack of clarity is prejudicial to respondents, which cannot defend themselves against such unfocused allegations (see Appeal of Lawson, 33 Ed Dept Rep 427, Decision No. 13,102).  Accordingly, the remainder of the petition must be dismissed for failure to state a claim upon which relief may be granted (Appeal of Stephen and Roseann W., 39 Ed Dept Rep 808, Decision No. 14,388; Appeal of Blake, 37 id. 250 Decision No. 13,852; Appeal of George, 33 id. 495, Decision No. 13,126).  This includes petitioner’s claims relating to respondents’ referrals or threat of referrals to law enforcement or the use of personal cell phones of staff, as petitioner has failed to establish that he is entitled to the relief sought.

Although the application must be denied and the appeal must be dismissed for the reasons stated above, one administrative matter remains.  Respondents have requested that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the powers or performance of duties as a board member, superintendent, principal or member of the teaching or supervisory staff.  It is appropriate to issue such certification unless it is established on the record that the requesting individual acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  In view of the fact that there has been no finding that respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondents are entitled to a certificate of good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

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

THE APPEAL IS DISMISSED.

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