Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Cold Spring Harbor Central School District regarding student discipline.

Decision No. 17,290

(December 20, 2017)

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the decision of the Board of Education of the Cold Spring Harbor Central School District (the “board” or “respondent”) upholding the findings of the superintendent of schools and a hearing officer, in a disciplinary proceeding, that her son had engaged in violent conduct.  The appeal must be dismissed.

During the 2011-2012 school year, petitioner’s son attended high school in respondent’s school district.  On March 27, 2012, the assistant high school principal (“assistant principal”) advised the high school principal (“principal”) that she had two students in her office who admitted to buying and/or consuming a marijuana brownie which they claimed one of them had purchased on school property.  Subsequently, when the principal spoke to both students, one of them admitted to purchasing the marijuana brownie and the other admitted to consuming part of it.  The student who purchased the marijuana brownie maintained that she had purchased it from petitioner’s son in the student parking lot.  The principal took possession of the remainder of the marijuana brownie. 

As a result of his conversation with these students, the principal attempted to locate petitioner’s son to discuss their allegations with him.  However, the principal was unable to speak to him immediately because petitioner’s son was off school property without permission.  When petitioner’s son returned to school, he met with the principal and assistant principal to discuss the allegations against him.  The principal informed petitioner’s son that, due to the fact that he had obtained a brownie that smelled like marijuana from another student who claimed that she had purchased it from him in the student parking lot, he was going to search petitioner’s son’s car.

Subsequently, petitioner’s son, the principal and a security guard walked to petitioner’s son’s car in the student parking lot.  Petitioner’s son unlocked his car, which was then searched by the principal and the security guard.  According to the record, this search, which petitioner’s son explicitly consented to and cooperated with, produced, inter alia, marijuana, additional marijuana brownies, drug paraphernalia and an air gun. 

By letter dated March 29, 2012, the superintendent served petitioner and her husband with notice of the charges (“notice”) against their son and informed them that a superintendent’s hearing had been scheduled.  The notice contained the following charges:

Charge No. 1 – On Tuesday, March 27, 2012, during the school day, [petitioner’s son], was in possession of an illegal substance, namely marijuana, which was contained in a clear plastic bag, while on the premises of Cold Spring Harbor High School.  Such conduct is in violation of the Cold Spring Harbor Central School District Code of Conduct.

Charge No. 2 – On Tuesday, March 27, 2012, during the school day, [petitioner’s son], was in possession of an illegal substance, namely marijuana, which was contained in brownies, while on the premises of [the high school].  Such conduct is in violation of [the district’s code of conduct].

Charge No. 3 – On Tuesday, March 27, 2012, during the school day, [petitioner’s son], sold an illegal substance, namely marijuana, which was concealed in a brownie, to another student, while on the premises of [the high school].  Such conduct is in violation of [the district’s code of conduct].

Charge No. 4 – On Tuesday, March 27, 2012, during the school day, [petitioner’s son], was in possession of drug paraphernalia, namely several pipes containing marijuana residue, a scale, rolling papers, empty pill capsules and plastic bags containing marijuana residue, while on the premises of [the high school].  Such conduct is in violation of [the district’s code of conduct].

Charge No. 5 - On Tuesday, March 27, 2012, during the school day, [petitioner’s son], was in possession of an air gun, while on the premises of [the high school].  Such conduct is in violation of [the district’s code of conduct].

Charge No. 6 – On Tuesday, March 27, 2012, during the school day, [petitioner’s son], left the premises of [the high school] without permission.  Such conduct is in violation of [the district’s code of conduct].

Charge No. 5 is the only charge at issue in this appeal.

At the May 24, 2012 superintendent’s hearing, petitioner’s son was represented by his father, who is an attorney.  Petitioner’s son did not testify but petitioner and her husband did, as did the principal.  With respect to Charge No. 5, the principal testified that, during the search of petitioner’s son’s car, an air gun was found in the trunk.  The principal further testified that when he asked petitioner’s son why he had the air gun on school property, petitioner’s son stated that “he participates in games with the air gun on weekends and so on, that his parents are aware of it.”  It is undisputed that petitioner’s son never took the air gun into the school building and that it was removed from his car by a security guard, who then took it into the school building, along with the other items that were discovered during the search. 

At the conclusion of the hearing, the hearing officer found petitioner’s son guilty of all six charges and made 29 findings of fact, including the following four findings relating to Charge No. 5: (1) on Tuesday, March 27, 2012, during the school day, petitioner’s son was in possession of an air rifle, while on the premises of the high school; (2) an air rifle was found in the trunk of petitioner’s son’s car; (3) Suffolk County Police were summoned to the high school and they confiscated all of the items removed from petitioner’s son’s car, except the air rifle, which they returned to him; and (4) the possession of a weapon on the premises of the high school is a violation of the district’s code of conduct. 

After making the findings of fact, the hearing officer concluded, inter alia, that on Tuesday, March 27, 2012, petitioner’s son engaged in conduct that was insubordinate, violent, disruptive, disorderly and a danger to the safety, morals, health and welfare of others, in violation of the district’s code of conduct.

The record reflects that a manifestation team met on the same day as the superintendent’s hearing and determined that the actions of petitioner’s son were not a manifestation of his disability.  Although the hearing officer acknowledged that petitioner’s son had no prior disciplinary record, he recommended, due to, inter alia, the serious nature of her son’s actions and his failure to take any responsibility for them, that petitioner’s son’s suspension continue until the end of the 2011-2012 school year.  He also recommended that the student not be permitted to participate in any on-campus or off-campus school events, including graduation, and not be permitted to enter the district’s school buildings or grounds during his suspension without the prior consent of the superintendent.

By letter dated June 4, 2012, the superintendent informed petitioner and her husband that she had adopted the findings of facts and recommendations of the hearing officer.  On or about June 20, 2012, petitioner appealed the superintendent’s decision to respondent.  In her appeal to the board, petitioner did not challenge any of the determinations of guilt against her son or the penalty imposed on him.  The only relief petitioner sought was the reversal and expungement of any finding that her son was “violent” from his records.  By letter dated July 11, 2012, petitioner was advised that the board upheld the superintendent’s decision in all respects.  This appeal ensued.

Petitioner does not challenge the findings of guilt or penalty imposed upon her son.  Petitioner asserts, among other things, that her son’s conduct did not make him a violent pupil within the meaning of Education Law §3214(2-a)(a).  As relief, petitioner seeks the reversal and expungement of any finding that her son was “violent” from his records. 

Respondent contends that the petition fails to state a claim for which relief can be granted and that petitioner has failed to meet her burden of proof to establish the facts and law entitling her to relief.  Respondent also maintains that the petition improperly refers to a document (an appearance ticket) and alleges facts that were not part of the superintendent’s hearing record.  Respondent further asserts that the appeal should be dismissed for failure to join necessary parties. 

I must first address several procedural issues. Respondent asserts that the petition should be dismissed for failure to join respondent board and the superintendent of schools as necessary parties, as neither is clearly named in the caption of the petition.  However, in the petition, petitioner states that she is appealing “the Decision of the Board of Education, dated July 11, 2012 and the Decision of the Superintendent of Schools dated June 4, 2012.”  Although neither the board nor the superintendent are named in the caption of the petition, petitioner named the school district as a respondent and properly served its district clerk, as required by §275.8(a) of the Commissioner’s regulations.  That section provides, in pertinent part:

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk.... [emphasis supplied]

Education Law §1804(1), relating to central school districts, provides, “[e]ach such central school district shall be managed by a board of education....”  Boards of education are charged with the “superintendence, management and control of the educational affairs of the district...” (Education Law §§1709[33], 1804[1]).  Petitioner has properly named and served the school district as a respondent, and the board received notice thereof, as required by §275.8(a) of the Commissioner’s regulations. Any order or judgment rendered as against the district must necessarily be carried out by its managing board of education.  Respondent board has had a fair opportunity to respond to the allegations in the petition and has not made any showing of prejudice resulting from petitioner’s failure to specifically name it as a respondent.  Therefore, I find that service upon the district clerk was sufficient to confer jurisdiction over the board.  The board, therefore, need not be separately joined (Appeal of Wolverton, 46 Ed Dept Rep 208, Decision No. 15,484; see also Appeal of Sidmore, 57 id., Decision No. 17,225; Appeal of Carrion, 50 id., Decision No. 16,228; Appeal of Lander, et al., 42 id. 201, Decision No. 14,822).

With respect to respondent’s superintendent of schools, the appeal need not be dismissed for failure to join her 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). 

Pursuant to Education Law §3214(3)(c)(1) an appeal lies from the superintendent’s decision to the board of education.  It is well-settled that, where a petitioner is appealing a decision of the board and does not seek specific relief against the superintendent or allege that the superintendent acted improperly in conducting the hearing, the superintendent of schools is not a necessary party to an appeal under Education Law §3214(3)(c)(1) (see Appeal of C.K., 53 Ed Dept Rep, Decision No. 16,597; Appeal of a Student Suspected of Having a Disability, 49 id. 402, Decision No. 16,063; cf. Appeal of R.C., 49 id. 275, Decision No. 16,023; Appeal of K.S., 43 id. 492, Decision No. 15,063).  In this appeal, petitioner’s sole contention is that the superintendent erred in accepting the finding of the hearing officer and concluding that petitioner’s son was guilty of violent conduct, but she does not seek any relief against the superintendent.  Under such circumstances, where a finding of guilt of a violent offense is being challenged and not the superintendent’s conduct of the hearing, the superintendent’s rights would not be adversely affected by a determination in favor of petitioner (see Appeal of C.K., 53 Ed Dept Rep, Decision No. 16,597; Appeal of a Student Suspected of Having a Disability, 49 id. 402, Decision No. 16,063; Appeal of R.C., 49 id. 275, Decision No. 16,023).  Therefore, I find that the superintendent is not a necessary party to this appeal, and I decline to dismiss the appeal for failure to join her.

Next, Education Law §3214(3)(c)(1) requires that, for a suspension of five days or more, a superintendent’s hearing be held, after which:

[a]n 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.  The board may adopt in whole or in part the decision of the superintendent of schools.

Petitioner submits with her petition a copy of an “appearance ticket” that was allegedly issued to her son, by the police, in connection with this incident. In the petition, petitioner also alleges that the offense set forth in the appearance ticket was a violation, not a crime, and that the matter was “adjourned in contemplation of dismissal.”  As respondent contends, the appearance ticket was never offered as an exhibit at the hearing and there was no testimony that petitioner’s son was granted an adjournment in contemplation of dismissal.  Therefore, such evidence was not a part of the record before respondent board on appeal and I cannot consider it here (see Appeal of R.C., 49 Ed Dept Rep 275, Decision No. 16,023; Appeal of P.K., 41 id. 421, Decision No. 14,733; Appeals of M.S., SR. and M.D., 41 id. 285, Decision No. 14,687).

Turning to the merits, Education Law §3214(2-a)(a) defines a violent pupil as an elementary or secondary student under twenty-one years of age who:

1.commits an act of violence upon a teacher, administrator or other school employee;

2.commits, while on school district property, an act of violence upon another student or any other person lawfully upon said property;

3.possesses, while on school district property, a gun, knife, explosive or incendiary bomb, or other dangerous instrument capable of causing physical injury or death;

4.displays, while on school property, what appears to be a gun, knife, explosive or incendiary bomb or other dangerous instrument capable of causing death or physical injury;

5.threatens, while on school district property, to use any instrument that appears capable of causing physical injury or death;

6.knowingly and intentionally damages or destroys the personal property of a teacher, administrator, other school district employee or any person lawfully upon school property; or

7.knowingly and intentionally damages or destroys school district property.

Petitioner appears to be contending that her son is not a violent pupil within the meaning of Education Law §§3214(2-a)(a)(3) or (4) because he neither possessed nor displayed the air gun while on school district property.  Petitioner further appears to be arguing that the air gun is a toy and not a “real” gun. 

However, I note that, pursuant to §100.2(gg)(1)(v)(a)[1] of the Commissioner’s regulations, a weapon is defined to include one or more of the following “dangerous instruments”: a firearm, including but not limited to a rifle, shotgun, pistol, handgun, silencer, electronic dart gun, stun gun, machine gun, air gun or spring gun.  Thus, under the aforementioned weapon definition, an air gun is considered a dangerous instrument. 

Furthermore, although this is not a criminal matter, I note that Penal Law §265.06, which relates to the possession of a weapon on school grounds, provides in relevant part, as follows:

 It shall be unlawful for any person age sixteen or older to knowingly possess any air-gun ... in or upon a building or grounds, used for educational purposes, of any school, college or university, without the written authorization of such educational institution.

Consequently, possession of an air gun on school property without authorization, by a student over the age of 16, such as petitioner’s son, is a criminal offense - though a violation and not a misdemeanor (see Penal Law §265.06).  Thus, both the Commissioner’s regulations on reporting violent incidents and the Penal Law treat an air gun as a weapon and, thus, a dangerous instrument.  Contrary to petitioner’s arguments, therefore, her son has been found guilty of possessing a dangerous instrument while on school district property and, under Education Law §3214(2-a)(a)(3), fits the definition of a violent pupil.

I reject petitioner’s argument that her son did not possess the air gun on school property.  Although not a criminal matter, pursuant to Penal Law §10.00(8), of which I take judicial notice, “possess” means “to have physical possession or otherwise to exercise dominion or control over tangible property.”  The term “possess” includes actual or constructive possession of tangible property (see People v. Sierra, 45 NY2d 56, 60).  Constructive possession of items can be established where there is evidence of an individual’s dominion and control over an automobile in which the items were found (see People v. Stringos, 198 AD2d 458, appeal denied 83 NY2d 858, citing People v. Manini, 79 NY2d 561, 573).

Here, the record shows that petitioner’s son had dominion and control over the car in which the air gun was found.  He had driven the car to school, parked it in the student parking lot on school grounds[2] and unlocked it in order to enable the principal and a security guard to search it.  According to the record, petitioner’s son also acknowledged his ownership of the air gun, which was found in the trunk of the car, when he advised the principal during the search that “he participates in games with the air gun on weekends ....”

Thus, with respect to petitioner’s claim for the reversal and expungement from his record of any finding that her son was a violent pupil, the pleadings and exhibits establish that petitioner’s son was in constructive possession of the air gun, which is a dangerous instrument within the meaning of Education Law §3214(2-a)(a)(3) and §100.2(gg)(1)(v)(a), on school property.  Accordingly, I cannot conclude that respondent’s determination that petitioner’s son was a violent pupil was arbitrary, capricious or unreasonable.  To the contrary, the record demonstrates that it was entirely appropriate under the circumstances and, therefore, I find no basis to order expungement of petitioner’s son’s records. 

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

THE APPEAL IS DISMISSED.

END OF FILE