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Decision No. 14,823

Application of JONATHAN ZIMMERMAN for the removal of Richard Sussman as a member of the Board of Education of the Port Washington Union Free School District.

Application of DOROTHY CHRISTOFIDES for the removal of Richard Sussman as a member of the Board of Education of the Port Washington Union Free School District.

Application of JONATHAN ZIMMERMAN for the removal of Richard Sussman as a member of the Board of Education of the Port Washington Union Free School District.

Decision No. 14,823

(December 23, 2002)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--In three separate applications pursuant to Education Law "306, petitioners seek the removal of Richard Sussman ("respondent") from his position as a member of the Board of Education of the Port Washington Union Free School District ("board"). Because the applications involve common issues of law and fact, they are consolidated for decision. The applications must be denied.

In the first application, petitioner Zimmerman seeks the removal of respondent based on an e-mail sent by respondent to fellow board members, including Zimmerman. In the second application, petitioner Christofides, who is married to Zimmerman, seeks the removal of respondent on the grounds that respondent allegedly shoved and struck her while she was attempting to serve him with the above-referenced application. In the third application, petitioner seeks the removal of respondent on the grounds that respondent allegedly physically assaulted him during an executive session of the board. Respondent denies that he threatened or assaulted petitioners.

The applications must be dismissed as moot. The record indicates that respondent did not run for re-election at the district"s May 2002 annual meeting. The Commissioner of Education 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 Avnet, 41 Ed Dept Rep ___, Decision No. 14,669; Appeal of Diane M., 39 id. 709, Decision No. 14,356; Appeal of Carney, 39 id. 255, Decision No. 14,229). Since respondent is no longer a board member, petitioners" applications to remove him are moot.

In light of the fact that the applications are moot, I need not address the merits. However, one administrative matter remains. Respondent has requested a certificate of good faith pursuant to Education Law "3811(1). Such certification is solely for the purpose of authorizing the district to indemnify him for the legal fees and expenses associated with these proceedings.

It is appropriate to issue a certification unless it has been established on the record that the requesting board member acted in bad faith (Application of Grinnell, 37 Ed Dept Rep 504, Decision No. 13,914; Appeal against the Board of Cooperative Educational Services, Third Supervisory District, Suffolk County, et al, 32 id. 519, Decision No. 12,905). The record reveals that respondent may have exercised poor judgement in sending an e-mail regarding petitioner Zimmerman to fellow board members but respondent maintains the e-mail was made in jest. The parties present conflicting versions of the events with regard to the alleged physical altercations, although it is apparent there was some rancor among the parties. In sum, while the record before me shows that respondent engaged in conduct inappropriate for a board member, it does not establish that respondent acted in bad faith. Accordingly, I will issue a certification for the limited purpose of "3811(1), with the admonition that it is in no way to be construed as condoning respondent"s actions.

THE APPLICATIONS ARE DENIED.

END OF FILE