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Decision No. 14,644

Appeal of the BOARD OF EDUCATION OF THE PLAINEDGE UNION FREE SCHOOL DISTRICT against Ralph Raymond and Dan Yuengling regarding election of a board member.

Decision No. 14,644

(September 25, 2001)

Ingerman Smith L.L.P., attorneys for petitioner, Warren Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks an order appointing respondent Ralph Raymond as a member of the Board of Education of the Plainedge Union Free School District to fill the unexpired term of Donald Risucci. The appeal must be dismissed.

On March 8, 2001, Donald Risucci announced at a regular meeting of petitioner board that he was resigning from his position, effective June 30, 2001, for business reasons. Petitioner decided to include Risucci"s seat on the ballot of its annual school election in order to save the school district the approximately $7,000 that a special election would cost.

On May 4, 2001, the district clerk published a legal notice for petitioner"s annual school election on May 15, 2001 that included "the office of Donald Risucci, a member of the Board of Education for the unexpired portion of his term commencing July 1, 2001 and ending on June 30, 2003." The ballot for the election identified the vacancy for Risucci"s seat as "2 year unexpired term ending June 30, 2003, Last Incumbent Donald Risucci (Vote for One)." Respondents Ralph Raymond and Dan Yuengling were candidates for Risucci"s seat and received 1,088 and 901 votes, respectively.

When respondent Raymond requested to be seated immediately, he was informed by the superintendent that the seat would not become vacant until June 30, 2001, the effective date of Risucci"s resignation. Upon consultation with petitioner"s counsel, the superintendent was advised that Risucci"s resignation did not meet legal standards and was a nullity. Therefore, Raymond could not take office because no vacancy existed.

On June 1, 2001, Risucci filed a written letter of resignation from his position as a member of the Board of Education, effective June 30, 2001. This appeal was commenced on June 13, 2001. A request for interim relief was denied on June 27, 2001.

On July 9, 2001, the Board of Education adopted the following resolution:

IT IS HEREBY RESOLVED that, pursuant to the provisions of Education Law Section 1709(17), Ralph Raymond be and hereby is appointed as a member of the Board of Education of the Plainedge Union Free School District to fill the vacancy created by the resignation of Donald Risucci, which appointment, pursuant to law, shall continue to the next regular school district election.

The oath of office was subsequently administered to respondent Raymond.

Public Officer"s Law "31(2) provides:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing.

Petitioner correctly determined that Risucci"s March 8, 2001 announcement did not comply with the requirements of "31(2) and therefore was not a valid resignation. Subsequently, Risucci took steps to redress the mistake by submitting the June 1, 2001 resignation letter.

Upon receipt of Risucci"s June 1, 2001 resignation letter, submitted to the district clerk consistent with Public Officer"s Law "31(2), petitioner invoked Education Law "1709(17) to fill the vacancy. Section 1709(17)authorizes the board of education of every union free school district:

To fill any vacancy which may occur in said board by reason of the death, resignation, removal from office or from the school district, or refusal to serve, of any member or officer of said board; and the person so appointed in the place of any such member of the board shall hold his office until the next regular school district election. The person elected to fill such vacancy shall take office immediately upon filing of his official oath of office with the district clerk.

Because petitioner"s July 9, 2001 resolution resolved the matter by filling the vacancy according to the procedures in Section 1709(17), the appeal must be dismissed as moot. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Sutton, 39 Ed Dept Rep 813, Decision No. 14,390; Appeal of Hanson, 39 id. 788, Decision No. 14,381; Appeal of Freeman, et al., 39 id. 457, Decision

No. 14,283).

THE APPEAL IS DISMISSED.

END OF FILE