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Decision No. 12,672

Application of ARTHUR J. SCALA for the removal of Daniel Greenwald, Robert Mac Inness, Patricia Lawry, James Damilatis and Randal Saeger from their position as members of the Board of Education of the Lindenhurst Union Free School District.

Application of ROBERT COZZETTO for the removal of Daniel Greenwald, Robert Mac Inness, Patricia Lawry, James Damilatis and Randal Saeger from their position as members of the Board of Education of the Lindenhurst Union Free School District.

Application of SUSAN DUMOULIN for the removal of Daniel Greenwald, Robert Mac Inness, Patricia Lawry, James Damilatis and Randal Saeger from their position as members of the Board of Education of the Lindenhurst Union Free School District.

Application of GRACE MARIE McGRAW for the removal of Robert Mac Inness from his position as a member of the Board of Education of the Lindenhurst Union Free School District.

Decision No. 12,672

(March 20, 1992)

Cooper, Sapir & Cooper, P.C., attorneys for respondents, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--These appeals are decided together because they all arise out of the same set of facts and involve similar issues. Petitioners are residents of the Lindenhurst Union Free School District, and three of them are members of the board. They seek the removal of respondents from that board. The applications must be denied.

On or about October 15, 1991 respondent Mac Inness was served with a summons and complaint in an action for defamation arising from a letter written by him concerning conduct at a previous meeting of the board. A copy of the summons and complaint was given to the president of the board who forwarded it to the school attorney for an opinion as to whether the district was required to provide legal representation for respondent Mac Inness. The school attorney opined that respondent Mac Inness was not entitled to representation by the district, but that the district could become liable for legal fees and damages if, after a trial of the matter, the trial judge determined that respondent Mac Inness was entitled to a certificate of good faith pursuant to Education Law '3811. The school attorney also advised that the matter be referred to the district's liability insurance carrier.

On November 6, 1991 the board adopted a resolution to appoint special counsel to represent the board's interests and respondent Mac Inness in the defamation action "due to the potential liability of the District given an adverse outcome in this matter." All the named respondents, including Mac Inness, voted in favor of the resolution. On November 15, 1991 the liability insurance carrier notified the board that it would not represent the district and respondent Mac Inness in the defamation action because it did not believe the actions cited in the pending lawsuit were covered under the district's insurance policy. On December 2, 1991 the liability insurance carrier changed its position and agreed to provide legal representation, reserving its right concerning indemnification because a question existed as to whether the claim arose from the performance of Mr. Mac Inness' duties as a member of the board. On December 4, 1991 the board voted to rescind the action taken at the November 6 meeting which had appointed special counsel for respondent Mac Inness.

Petitioners maintain that respondent Mac Inness violated board policy when he voted to authorize the school district to expend funds to provide legal representation in the defamation action because such vote resulted in a financial benefit to him. Petitioners also maintain that respondents improperly authorized the expenditure for legal representation because respondent Mac Inness failed to comply with all the procedural requirements of Education Law '3811 and because respondent Mac Inness' actions cited in the defamation action were outside the scope of his duties as a school board member.

The Commissioner of Education will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of Dimilia, 30 Ed Dept Rep 391; Appeal of Sileo, 28 id. 313; Appeal of Huggins, 28 id. 173). In each of the petitions herein, the allegations concern respondents' adoption of a resolution on November 6, 1991 appointing special counsel to represent the interests of the school district and respondent Mac Inness in a litigation commenced against respondent Mac Inness. Since that resolution was rescinded by respondents 29 days later (December 4, 1991), the matter is now moot, and these applications must be denied.

Finally, respondents allege that they have complied with Education Law '3811 and request that I certify that they acted in good faith with respect to the exercise of the powers and the performance of their duties in connection with these applications, for the purpose of obtaining reimbursement from the district for their legal expenses. In light of the fact that this matter is moot and respondents have complied with Education Law '3811, I certify that respondents acted in good faith.

THE APPLICATIONS ARE DENIED.

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