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Decision No. 13,861

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Appeal of WILLIAM KURLANS, CATHY LOMBARDI, MICHAEL KNACK, WILLIS OLIVO and CHARLES A. PERRENOD from action of Richard Beruk as Superintendent of Schools of the Liberty Central School District regarding an employment agreement.

Decision No. 13,861

(February 11, 1998)

O'Hara & O'Connell, P.C., attorneys for respondent, Dennis G. O'Hara, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the Liberty Central School District, allege that an employment agreement entered into between the board of education and respondent Superintendent Richard Beruk violates Education Law "1711. The appeal must be dismissed.

It is undisputed that respondent Beruk was employed by the district as superintendent pursuant to a five-year agreement commencing on July 1, 1991 and terminating on June 30, 1996. The agreement petitioners challenge, however, was approved by the board on June 10, 1996 and provided for an additional two-year term of employment, to terminate on June 30, 1998. While it is unclear from the petition, petitioners apparently claim that this second agreement violates both the "minimum" and "maximum" term provisions of Education Law "1711(3), and ask that I annul it.

Respondent Beruk counters that the petition should be dismissed for failure to join a necessary party, lack of standing, and mootness. Respondent further asserts that the agreement complies with "1711.

I find that the petition must be dismissed for failure to join a necessary party. The agreement petitioners seek to void is between respondent Beruk and the Board of Education of the Liberty Central School District. While Superintendent Beruk is named as a respondent, the board of education is not. It is axiomatic that an individual or entity 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 Bartling, 35 Ed Dept Rep 324; Appeal of Frasier, 34 id. 315). Since the board's agreement with the superintendent would be adversely affected by a decision in favor of petitioners, the board is a necessary party to this appeal. Petitioners' failure to join the board thus requires dismissal of the petition.

The appeal must also be dismissed for mootness. My Office of Counsel was advised by counsel to respondent Beruk that the superintendent resigned effective December 31, 1996. Accordingly, the agreement which petitioners seek to have annulled is no longer in effect. Since the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest, the appeal is moot (Appeal of Nash, 35 Ed Dept Rep 203).

THE APPEAL IS DISMISSED.

END OF FILE 

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