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Decision No. 13,788

Appeal of MARTHA STAYTON from action of the Board of Education of the City School District of the City of Oneonta, purporting to remove her from the office of president of the board of education.

Decision No. 13,788

(July 8, 1997)

Joseph T. Pondolfino, Jr., Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the action of the Board of Education of the City School District of the City of Oneonta ("respondent") taken January 8, 1997, to remove her from the office of president. The appeal must be dismissed.

Petitioner was elected as a board member in May, 1996, for a term ending June 30, 1999. On July 3, 1996, petitioner was unanimously elected board president pursuant to Education Law '2504(1), which provides in pertinent part: "The annual meeting of the board of education shall be held during the first week in July . . . at which meeting the board shall select a president for the ensuing year."

Approximately six months later, at a meeting held January 8, 1997, respondent, by a vote of 4-3, voted to remove petitioner from the office of president. This appeal was commenced on January 14, 1997. On January 17, 1997, my Office of Counsel received respondent's answer dated January 16, which indicated that the board had already stayed its action against petitioner and had temporarily restored her to her position as president. Nevertheless, I issued a stay on January 28, 1997.

Petitioner cites Education Law ''2504 and 1709 for the proposition that she was elected president for a full one-year term, and cannot be removed except pursuant to '1709(18), which requires written charges and a hearing.

Respondent contends that the City School District of the City of Oneonta is an "education corporation" pursuant to Education Law '216-a(1), and that, as a result, the Not-for-Profit Corporation Law, in particular '714, applies. Respondent therefore argues that '714 allows the removal of any officer appointed by the board at any time, either with, or without, cause.

It is clear that the appeal is moot. Except for several days in the month of January, petitioner has continuously served as president of respondent, whether pursuant to her election or because the board has "temporarily restored her" to office. Pursuant to Education Law ''2(15), 2105(6), and 2504(1), it is obvious that petitioner's term of office has expired, and that the matter has become moot. It is well settled that the Commissioner will decide only matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Berheide, 35 Ed Dept Rep 412; Appeal of Healy, 34 id. 611; Appeal of Lanoir, 34 id. 562; Appeal of Hartmann, 32 id. 640).

Although this appeal is dismissed for mootness, I would be remiss if I did not point out that a city school district governed by Education Law Article 51 is not an "education corporation" within the meaning of Education Law '216-a. In that latter section, an education corporation is defined as follows:

1. The term "education corporation" as used in this section means a corporation (a) chartered or incorporated by the regents or otherwise formed under this chapter, or (b) formed by a special act of this state with its principal purpose an educational purpose and which is a member of the university of the state of New York, or (c) formed under laws other than the statutes of this state, which, if it were to be formed currently under the laws of this state, might be chartered by the regents and which has been authorized to conduct its activities in this state by the regents or as an authorized foreign education corporation with the consent of the commissioner. A corporation as defined in the business corporation law is not an education corporation under this section.

City school districts are not not-for-profit corporations, but are statutory subdivisions of the State of New York. Education Law '2(16); Education Law Article 51; R.E.F.I.T. v. Cuomo, 86 NY2d 279; City of New York v. State of New York, 86 NY2d 286; Campaign for Fiscal Equity, Inc., v. State of New York, 86 NY2d 307. City school districts are provided by statute with their own substantive and procedural provisions which differ markedly from the Not-for-Profit Corporation Law, and it is obvious that the Legislature has decided to provide for them in a substantially different way.

I have considered the other arguments of the parties and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE 

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