Appeal of A.W., on behalf of her son D.W., from action of the Board of Education of the Ramapo Central School District regarding student discipline.

Decision No. 17,254

(November 13, 2017)

Phillips & Millman, LLP, attorneys for petitioner, Frank J. Phillips, Esq., of counsel

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Ramapo Central School District[1] to impose discipline on her son, A.W. (“the student”).  The appeal must be dismissed.

The student was a senior in respondent’s high school during the 2011-2012 school year.  A district investigation into student drug use implicated the student.  On or about November 14, the student met with an assistant principal and a school resource officer.  At this meeting, the student admitted to possession of marijuana on school grounds as well as the sale of marijuana.

Also on November 14, the principal provided written notice to petitioner that the student would be suspended for five days based upon his conduct.  The record contains a copy of a form, signed by petitioner on November 14, indicating that she had “received an OSS [s]uspension [l]etter” as well as a copy of respondent’s suspension policy on the same day.  The suspension policy, signed by the principal, informed petitioner of her right to an informal conference with the principal where she could ask questions of complaining witnesses.

In a letter dated November 20, which the record indicates was hand-delivered to petitioner on November 21, the district’s assistant superintendent for human resources informed petitioner and her husband that he had been designated as the hearing officer for a long-term suspension hearing regarding the student’s conduct.  The letter indicated that the hearing was scheduled for November 26.  The hearing convened as scheduled.  The hearing officer issued a written recommendation to the superintendent and, additionally, met with the superintendent to convey his recommendations as to guilt and penalty.

On November 28, the superintendent adopted the hearing officer’s recommendations with respect to guilt and penalty.  The superintendent imposed an out-of-school suspension for the remainder of the student’s school year and prohibited the student from attending prom or his graduation ceremony.  The superintendent further precluded the student from entering district property “while he is still 17 years of age unless allowed to by school district personnel....”  The record reflects that respondent voluntarily offered alternative instruction to the student during his senior year.  Petitioner appealed the student’s penalty to respondent, which respondent denied in a letter dated December 20.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that the student’s penalty was excessive given the student’s admission of guilt, lack of a disciplinary record and remorse.  Petitioner further claims that neither she nor her husband received written notice of the student’s five-day suspension.  Petitioner further raises procedural challenges to the suspension hearing, arguing that the district did not provide her with sufficient time to adequately prepare a defense.  Petitioner further argues that counsel for the district improperly conducted the hearing and engaged in aggressive questioning of the student.  Petitioner also asserts that the hearing officer failed to make written recommendations regarding penalty to the superintendent.  Finally, petitioner argues that she was prejudiced in her appeal to respondent because respondent began its meeting early in violation of the Open Meetings Law.

Respondent denies petitioner’s assertions and argues that petitioner’s claims are without merit.  With specific respect to the student’s penalty, respondent argues that the student’s admission to the charges of possession and sale of drugs warranted the imposed penalty.

First, I must address a procedural issue.  Counsel for petitioner submitted a “reply affidavit” following service of petitioner’s reply.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Petitioner did not request prior permission to submit this affidavit and respondent objects to its admission.  Accordingly, because petitioner did not seek prior permission to serve this affidavit in accordance with the regulation, I will not consider it.

Petitioner’s claims regarding respondent’s noncompliance with the Open Meetings Law must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Turning next to petitioner’s alleged non-receipt of the student’s five-day suspension notice, the written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

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).

Here, respondent maintains that it arranged for delivery of the student’s five-day suspension notice together with a copy of its suspension policy on November 14, the day of the student’s suspension.  As proof, respondent submits a receipt signed by petitioner indicating that she received both documents.  Petitioner does not refute this evidence in her reply.  Therefore, the record reflects that petitioner received the five-day suspension notice on the same day as the student’s suspension, and one day before the student’s five-day suspension began on November 15.  Accordingly, I find that petitioner has failed to carry her burden of proof on this claim and that respondent met its legal obligations in this regard.[2]

Next, with respect to the scheduling of the long-term suspension hearing, Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897). What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of F.W., 48 Ed Dept Rep 399, Decision No, 15,897; Appeal of a Student with a Disability, 46 id. 385, Decision No. 15,540).  One day’s notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).

The record indicates that the November 20 hearing notice was delivered to petitioner on November 21, the day before Thanksgiving.  Thus, petitioner had five calendar days to prepare for the hearing, at which she did not contest the student’s guilt and the only issue addressed at the hearing was the appropriate penalty under the circumstances.  Although petitioner now claims she had insufficient time to consult with an attorney, there is no evidence that petitioner requested an adjournment or that she raised this issue at the hearing.  I note that petitioner also explains in her petition that she “decided to proceed with the hearing without an attorney because we wanted our son to take responsibility for his actions....”  Under these facts, I cannot find that petitioner or the student were deprived of due process (see Appeal of C.D., Sr., 49 Ed Dept Rep 381, Decision No. 16,057; Appeal of a Student with a Disability, 46 id. 385, Decision No. 15,540; Appeal of D.S., 45 id. 289, Decision No. 15,327).[3]

Petitioner next argues that the hearing officer failed to make a written recommendation regarding penalty.  I agree with petitioner that the hearing officer's written findings of fact did not include, as required by Education Law §3214(3)(c)(1), “recommendations as to the appropriate measure of discipline” to be imposed.  However, such error was harmless under the circumstances since, pursuant to Education Law Law §3214(3)(c)(1), any such recommendations would have been “advisory only,” and the superintendent retained the ultimate authority to determine an appropriate penalty under the circumstances (Appeal of G.B. and B.B., 52 Ed Dept Rep, Decision No. 16,383).  Additionally, the hearing officer states in an affidavit that he discussed the issue of penalty with the superintendent and made a recommendation to the superintendent during this discussion.  Therefore, I find that while the hearing officer’s failure to make a written recommendation constitutes error, such error was harmless under the circumstances (Appeal of G.B. and B.B., 52 Ed Dept Rep, Decision No. 16,383).[4]

Petitioner further argues that counsel for the district improperly conducted the hearing and engaged in aggressive questioning of the student.  Although counsel for the district conducted the bulk of the questioning during the hearing, the evidence in the record shows that the hearing officer convened the hearing, informed the student of his rights, and exercised appropriate authority over the proceeding.  Further, I have reviewed the audio recording of the hearing and do not find that counsel for the district engaged in disrespectful behavior or questioning which was “akin to an intense criminal interrogation.”  Therefore, petitioner’s claims must be dismissed.

Finally, petitioner contends that the student’s suspension was tantamount to a permanent suspension and was excessive under the circumstances.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

Here, although petitioner argues that the student’s suspension for the remainder of his senior year constitutes a permanent suspension, she has not met her burden of showing that a six-month suspension (i.e., November 14 through June 30) as well as a prohibition on attending prom or graduation was disproportionate to the severity of the offense (see Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159 [one-year suspension for possession of cocaine upheld]; Appeal of J.S., 50 id., Decision No. 16,091 [one-year suspension, with possibility of return to school after nine months, for possession and sale of marijuana upheld]).  Moreover, while petitioner contends that the student had no prior disciplinary incidents, a student with a previously unblemished record is not necessarily entitled to receive a lesser penalty than would otherwise be imposed for a particular offense (Appeal of Lutes, 25 Ed Dept Rep 396, Decision No. 11,624).  Relatedly, although the student has expressed remorse for his actions, his remorse alone does not compel a reduction of the penalty, particularly in light of his admission that he possessed drugs on school property and sold these drugs to another student (see Appeal of P.K., 41 Ed Dept Rep 421, Decision No. 14,733).  Accordingly, based on the record before me, I will not substitute my judgment for that of respondent.

THE APPEAL IS DISMISSED.

END OF FILE