Appeal of C.S.L., on behalf of his son R.L., from action of the Board of Education of the City School District of the City of Buffalo regarding student discipline.

Decision No. 17,619

(April 11, 2019)

Nathaniel J. Kuzma, Corporation Counsel, attorney for respondent, Stephanie Joy Calhoun, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Buffalo City School District (“respondent”) to suspend his son (“the student”)[1].  The appeal must be dismissed.

At all times relevant to this appeal, the student attended a high school within respondent’s district.  On or about September 20, 2017, the student allegedly sold a controlled substance (i.e., a generic form of the benzodiazepine, Xanax) to another student (“student A”) while on school grounds.  The student was also found to be in possession of several additional Xanax tablets, as well as several tablets of the antihistamine, Benadryl.

By letter dated September 25, 2017, respondent’s superintendent indicated that the student had been suspended and advised petitioner that a long-term suspension hearing would be convened on September 28, 2017 to determine whether an additional period of suspension was warranted based upon the allegation that the student engaged in the following conduct:

[O]n or about September 20, 2017, [the student] ... did allegedly sell to [student A] within the school, a controlled substance ... for $25.00.  The student was in possession of 4 additional generic Xanax in a ziplock bag plus 7 Benadryl tablets.  [Student A] had slurred speech, was staggering and falling down.  [Student A] had to be taken to the hospital emergency room.

The long-term suspension hearing convened as scheduled.  At the hearing, the student pled guilty to those portions of the charges which alleged that he sold a controlled substance to student A while on school grounds and that he possessed Xanax and Benadryl tablets.  The student pled not guilty to the portion of the charges which alleged that student A had to be taken to the emergency room as a result of taking a Xanax tablet that he allegedly bought from the student.

In a written recommendation dated September 28, 2017, the hearing officer recommended that the student be found guilty of the charges “as written.”  The hearing officer recommended that the student’s suspension be extended for an additional 52 days.

By letter dated October 3, 2017, the superintendent notified petitioner that he had adopted the hearing officer’s recommendations regarding guilt and penalty.  The letter further advised petitioner that he could appeal the superintendent’s decision to respondent’s Student Discipline Review Officer (the “review officer”).

In an affidavit submitted in connection with this appeal, the review officer asserts that he met with the student’s parents “on a few occasions” on unspecified dates regarding the student’s long-term suspension.  The review officer further states that he conducted a “formal discipline review process” with the student’s mother on October 10, 2017.  The review officer indicates that “[b]ased on a review of the [hearing officer’s] Findings of Fact and conversations with the school administration, as well as the [student’s] family, [he] modified the long-term suspension period from December 11, 2017 to October 31, 2017.”  The record also reflects that the district modified the location of the student’s alternative education site.  The review officer indicates in the affidavit that petitioner and the student’s mother “agree[d]” with such modifications.[2]

Following these events, petitioner and the student continued to seek expungement of the student’s suspension from his record.  By letter dated March 8, 2018, respondent’s General Counsel notified petitioner that, based upon the student’s admission that he was guilty of the charge of selling and possessing a controlled substance, there was no basis upon which to expunge the suspension from his record.  The letter further stated that:

[The student’s] testimony and the school’s inability to provide sufficient evidence to support the latter part of the charge (i.e. [student A] had slurred speech, was staggering and falling down ... had to be taken to the hospital emergency room) does provide grounds to remove this portion of the charge from the final disposition ....  The implications of [the student’s] code of conduct violation (i.e. possession, distribution and sell [sic] of controlled substance), while important, could not be directly attributed to the behavior of the student who the controlled substance was sold to.

This appeal ensued.

Petitioner asserts that the principal committed perjury during the long-term suspension hearing; that respondent failed to provide the student with a copy of its code of conduct; that respondent failed to provide the student with alternative education; that the student did not sell or distribute a controlled substance as alleged by respondent;[3] and that the district should have made parents aware of its policies regarding prescription medications on school grounds.  For relief, petitioner requests that I expunge the student’s suspension from his record.  Petitioner also seeks a “[r]emedy for the student’s lost education.”

Respondent argues that the appeal must be dismissed for improper service of the petition and for failure to serve a notice of petition in the format required by Commissioner’s regulation §275.11.  Respondent also asserts that petitioner failed to exhaust his administrative remedies before commencing this appeal because he did not “formally appeal” the review officer’s determination to respondent and failed to adhere to respondent’s internal timelines for commencing such an appeal.  On the merits, respondent denies petitioner’s contentions and argues that respondent’s determination of guilt was based upon competent and substantial evidence; specifically, the student’s admission to the charge that he sold and possessed a controlled substance while on school grounds.  Respondent also asserts that petitioner’s claim that the student was unaware that his alleged actions could result in discipline because he did not receive a copy of respondent’s code of conduct is without merit.

The appeal must be dismissed for improper 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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner originally submitted a copy of the petition to my Office of Counsel, which was received on April 4, 2018.  By letter dated April 9, 2018, my Office of Counsel returned the petition to petitioner because it did not include an affidavit of personal service or the notice required by 8 NYCRR §275.11(a).  Petitioner subsequently submitted a copy of the petition with an affidavit of service indicating that the petition was served by “private express delivery service.”  There is no evidence that petitioner effectuated personal service of the petition on an individual authorized to accept service on behalf of the board or school district as required by 8 NYCRR §275.8.  Therefore, service upon respondent was not effectuated and the appeal must be dismissed (Appeal of C.D. and A.D., 58 Ed Dept Rep, Decision No. 17,500; Appeals of L.A. and V.A., 57 id., Decision No. 17,424).[4]

The appeal must also be dismissed based on petitioner’s failure to serve a notice of petition on respondent.  While the petition submitted in the instant appeal includes a cover sheet which states: “NOTICE OF PETITION,” that document does not contain the language required by 8 NYCRR §275.11(a).  Respondent asserts that it was not served, at any time, with the required notice.  The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; see e.g. Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Gaynor, Sr., 51 id., Decision No. 16,293; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  A petition that does not contain the language required by §275.11 is fatally defective and does not secure jurisdiction over the intended respondent (see Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570).  Therefore, petitioner’s appeal must be dismissed for failure to include the notice of petition required by §275.11 (Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

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

THE APPEAL IS DISMISSED.

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