Appeal of R.M., on behalf of his son M.M., from action of the Board of Education of the Kenmore Tonawanda Union Free School District regarding student discipline.

 

Decision No. 17,205

(October 3, 2017)

Law Offices of Frank Housh, attorneys for petitioner, Frank Housh, Esq., of counsel

Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Kenmore Tonawanda Union Free School District (“respondent” or “board”) to impose discipline on his son M.M. (“the student”).  The appeal must be dismissed.

On April 1, 2011, a fellow student (“the complainant”) approached a lunch monitor in one of respondent’s middle schools and informed her that the student had stated that there may be a bomb in the complainant’s locker.  The complainant indicated that he did not know whether the student was joking.  The lunch monitor reported the matter to the assistant principal, who in turn contacted the principal, and then the superintendent.  The police were called to the school and the principal convened a “shelter in place.”[1]  The complainant’s locker was subsequently examined, but no bomb was discovered.

Later that day, the complainant and student, in separate meetings, met with the principal and assistant principal.  In his meeting, as well as in a subsequent meeting, the student admitted that he told the complainant to “check for a bomb” but maintained that he was “joking.”

The student was suspended from school for five days.  The superintendent subsequently scheduled a disciplinary hearing to determine whether a long-term suspension would be imposed.  At the hearing, the hearing officer found the student guilty of the charged conduct and recommended a five week out-of-school suspension.  The superintendent upheld this determination, which was subsequently upheld by respondent.  This appeal ensued.

Petitioner makes a series of arguments relating to the conduct of the hearing and the merits of respondent’s determination.  Petitioner first argues that the hearing officer applied an incorrect evidentiary standard at the hearing.  Second, petitioner contends that the hearing officer inappropriately refused to allow him to pursue a line of questioning regarding the reasonableness of the principal’s actions.  Third, petitioner contends that respondent did not prove the student’s guilt by substantial and competent evidence.  Fourth, petitioner argues that respondent impermissibly restricted his ability to present his appeal of the superintendent’s decision to respondent.  In this regard, petitioner argues that respondent’s engagement of two attorneys from a single law firm to, respectively, argue the district’s case and advise respondent on the procedures for conducting the appeal constituted an impermissible conflict of interest which violated the student’s due process rights.  Petitioner further argues that the imposition of a 15-minute time period for presenting his arguments, without advance notice, also violated his due process rights.  Finally, petitioner requests that the suspension be annulled and expunged from the student’s record.

Respondent contends that the petition must be dismissed for failure to name or join the board, that the petition is moot to the extent that the student served his suspension, that petitioner fails to make a clear and concise statement of petitioner’s claim, and that the board’s decision was supported by the evidence in the record.

I must first consider the procedural issues.  As respondent correctly argues, petitioner’s challenge to the student’s suspension is moot to the extent that the student has served his suspension.  However, petitioner also seeks expungement of the student’s record, and such claim remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

However, the appeal must be dismissed for failure to properly join the board of education as a necessary party.  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).

Here, the petition is captioned: “In the Matter of A Proceeding Pursuant to Education Law §3214(3) Regarding [the student].”  No respondent is named in the caption, and the notice of petition served with the petition (labeled by counsel for petitioner as a “Notice of Appeal”) indicates that it is directed to the superintendent of schools.  The notice of petition and petition were personally served upon the superintendent.  Under 8 NYCRR §275.8(a), if a school district is named as a party, service upon the school district may be made by delivering a copy of the petition to the superintendent of schools.  However, neither the school district nor the board of education are named as a party in the notice of petition or petition.  Because Education Law §3214(3)(c)(1) provides that an appeal lies to the board of education from a determination of the superintendent of schools following a student disciplinary hearing, the board of education is a necessary party in an appeal to the Commissioner pursuant to Education Law §310 challenging a student suspension resulting from such a hearing (see generally Appeal of K.G., 51 Ed Dept Rep, Decision No. 16,262; Appeal of R.C., 49 id. 275, Decision No. 16,023).  Therefore, under such circumstances, petitioner’s failure to clearly name and join the board warrants dismissal of the appeal (see Appeal of Loschiavo, 45 Ed Dept Rep 525, Decision No. 15,404; Appeal of Lilly, et al., 42 id. 307, Decision No. 14,863; Appeal of Goldin, 38 id. 317, Decision No. 14,043).

However, even if I were to consider the merits of petitioner’s appeal, it would be dismissed on the merits.  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).

Petitioner’s complaint that the hearing officer applied an incorrect standard of proof is without merit.  Petitioner points to a single instance in the hearing transcript where the hearing officer utilized the phrase “competent and sufficient” instead of “competent and substantial” in describing the district’s evidentiary burden at the hearing.  Petitioner neglects to mention, however, that the hearing officer quoted the correct standard elsewhere in the hearing record and, indeed, in her written recommendation.  Upon review of the hearing record as a whole, I do not find that the hearing officer misconstrued or misapplied the applicable burden of proof.  I further find no merit in petitioner’s suggestion that the hearing officer applied a “strict liability” standard with respect to the student’s conduct.[2]

Additionally, there is no indication that the hearing officer abused her discretion in limiting a line of questioning by counsel for petitioner on relevancy grounds.  The student was charged with making a bomb threat, and I find that the hearing officer acted within her discretion in determining that questions regarding the “reasonableness” of the principal’s investigation were not relevant to the issues before her.  While counsel should be afforded ample opportunity to contest the charges against students, it is within the discretion of a hearing officer to limit evidence or testimony which he or she deems irrelevant, immaterial, unreliable, or unduly repetitious.

Third, the district provided evidence that the student admitted on two occasions that he engaged in the charged conduct, and such an admission constitutes sufficient evidence of guilt (Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).  While petitioner is correct that the student’s admission was introduced as hearsay evidence, such evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Therefore, under the facts of this case, respondent’s finding of guilt was based on competent and substantial evidence and the district was not required to call the complainant, who heard the student’s threat firsthand, to prove the student’s guilt.[3]

Fourth, petitioner’s objections to respondent’s consideration of his appeal are without merit.  Education Law §3214(3)(c)(1) provides, in pertinent part:

An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.

Although this statutory provision does not preclude the presentation of arguments to a board of education on appeal of a suspension determination, a board’s determination must be based on the evidence produced at the hearing (see Appeal of A.G., 41 Ed Dept Rep 262, Decision No. 14,681).  Therefore, because respondent was not required to entertain oral argument regarding the student’s appeal of his suspension, its imposition of a 15-minute time limitation for oral argument was within its discretion.[4]  Moreover, respondent asserts that, after counsel for petitioner exceeded the 15-minute time limit, respondent nevertheless afforded him additional time to complete his presentation.  Petitioner does not respond to this allegation in his reply.  Therefore, petitioner’s claim is without merit.

Finally, counsel for petitioner complains that, on his appeal of the superintendent’s decision to respondent, the firm representing respondent utilized one attorney to argue on behalf of the district (“hearing counsel”) and another attorney to advise respondent (“board counsel”).  Under similar facts, the Commissioner held in Appeal of Chapman (28 Ed Dept Rep 272, Decision No. 12,105) that a student’s due process rights were not violated where:

The attorney who advised the board had no prior connection with the case, advised only on legal issues, took no part in the board’s deliberations and made no recommendations to the board.

Here, respondent asserts in its verified answer that hearing counsel had no prior connection with the case, only advised the board on legal issues, and did not make any recommendations to the board.  While respondent admits that it deliberated in the presence of hearing counsel, it asserts that it did so to have hearing counsel available to answer legal questions.  Respondent further asserts that hearing counsel did not participate in its deliberations.[5]  Contrary to petitioner’s arguments, the fact that his attorney objected to board counsel’s participation, unlike petitioner’s attorney in Matter of Payne (18 Ed Dept Rep 280, Decision No. 9,840) does not establish a due process violation.  Although the Commissioner relied upon the prior decision of Matter of Payne in deciding Appeal of Chapman (28 Ed Dept Rep 272, Decision No. 12,105) the reasoning in Appeal of Chapman does not hinge upon whether an objection was made at the time of an appeal to the board of education, and the mere fact that petitioner’s attorney objected to such arrangement does not establish a due process violation.  Under these facts, I do not find that petitioner has carried his burden of proof regarding his claim that the student’s due process rights were violated (Appeal of Chapman, 28 Ed Dept Rep 272, Decision No. 12,105; see Appeal of Goldberg and Goldberg, 36 Ed Dept Rep 470, Decision No. 13,778; Matter of Payne, 18 id. 280, Decision No. 9,840).

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

THE APPEAL IS DISMISSED.

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