Appeal of MATTHEW B. JACOBY from action of the Board of Education of the Van Hornesville-Owen D. Young Central School District regarding the election of board officers.

Decision No. 15,710

(January 14, 2008)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the action of the Board of Education of the Van Hornesville-Owen D. Young Central School District (“respondent” or “board”) in electing two of its members as co-presidents.  The appeal must be dismissed.

On July 3, 2007, respondent held its organizational meeting.  Because petitioner, a newly-elected trustee[1], was not able to attend the organizational meeting, only four of the five trustees were present.

At the meeting, two trustees were nominated for the office of president and the four trustees present were deadlocked in a 2-2 vote.  The four trustees entered executive session and upon their return, nominated and elected two co-presidents for the 2007-2008 school year.

At the board’s August 8, 2007 meeting, petitioner objected to the July 3, 2007 election of co-presidents and requested that the board elect one president and one vice-president.  The board refused and this appeal ensued.

On September 12, 2007, one of the two co-presidents resigned from that position, leaving only one trustee in the office of president.  Petitioner’s request for interim relief was denied on September 14, 2007.  On October 10, 2007, the board elected a vice-president.

Petitioner claims that the actions of the board, the district clerk and the business manager creating two co-presidents violated Education Law §1701 and the district’s by-laws.  Petitioner also argues that the board’s decision to enter executive session to discuss the creation of the office of co-presidents at the July 3, 2007 meeting violated the Open Meetings Law.  Finally, petitioner requests a determination as to whether business conducted by the board during the period of the co-presidency is legal and binding.

Respondent argues that the appeal must be dismissed as moot and untimely.  Respondent also contends that the appeal fails to state a claim upon which relief can be granted and fails to join necessary parties.  Finally, respondent maintains that the appeal must be dismissed to the extent petitioner alleges violations of the Open Meetings Law.

Initially, I must address petitioner’s reply.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]).  Respondent served its answer on October 17, 2007, and petitioner served his reply on November 3, 2007.  Accordingly, I find petitioner’s reply to be untimely.  Moreover, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioner’s reply was not verified in violation of §275.5 (Appeal of McColgan, et al., 47 Ed Dept Rep __, Decision No. 15,650;  Appeal of D.H., 47 id. __, Decision No. 15,631; Appeal of a Student with a Disability, 46 id. 102, Decision No. 15,454).  Therefore, I have not considered petitioner’s reply.

Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Therefore, to the extent petitioner alleges violations of the Open Meetings Law, I have no jurisdiction to address them.

With respect to petitioner’s objections to the board’s election of co-presidents instead of a president and vice-president, the appeal must be dismissed as moot.  The Commissioner will only decide 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 (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).    On September 12, 2007, one of the board’s two co-presidents resigned her office, leaving only one president in office.  In addition, the board elected a vice-president on October 10, 2007.  As a result, petitioner’s claims must be dismissed as moot.

Petitioner’s request for a determination regarding the legality of board actions under the co-presidents must also be dismissed.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).  Petitioner seeks no specific relief on this claim and I will not render an advisory opinion on the issue.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

[1] Petitioner was sworn into office as a trustee on July 10, 2007.