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Decision No. 16,040

Application of ROBERT LAUB, JAMES MEZHIR, LOUIS M. PALMERI, and DAVID S. SCHAUBERT for the removal of Robert Weller and Edward Lilly as members of the Board of Education of the Lewiston-Porter Central School District and for the removal of Edward Lilly as a member of the Board of Cooperative Educational Services of Orleans and Niagara Counties.

Decision 16,040

(March 31, 2010)

Webster Szanyi, LLP, attorneys for respondent Robert Weller, Ryan G. Smith, Esq., of counsel

STEINER, Commissioner.--Petitioners seek the removal of Robert Weller and Edward Lilly (collectively “respondents,” individually referred to as “Weller” and “Lilly”) from the Board of Education of the Lewiston-Porter Central School District (“board”).  Petitioners also seek the removal of Lilly from the Board of Cooperative Educational Services of Orleans and Niagara Counties (“Orleans/Niagara BOCES”).  The application must be denied.

Petitioners are former members of the board.  The factual background of this appeal may be found in five prior decisions (Appeal of Laub, et al., 48 Ed Dept Rep 481, Decision No. 15,923; Appeal of Palmeri, 48 id. 287, Decision No. 15,859; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeals of Stepien and Lilly, 47 id. 388, Decision No. 15,732; Appeal of Lilly, 47 id. 268, Decision No. 15,692).  The facts stated in those decisions will not be repeated here.

Petitioners submitted letters dated June 2, 2009 to the board renewing their request for defense and indemnification with respect to the action brought against them by Scott A. Stepien in the United States District Court for the Western District of New York.  Their letters cited the Commissioner’s decision in Appeal of Laub, et al., 48 Ed Dept Rep 481, Decision No. 15,923, that annulled board resolution NA-1, voted July 17, 2008, denying their previous request.

On June 16, 2009, the board entertained but again failed to pass resolution NA-6, with three votes in favor, two objections, one member absent and the president deciding not to vote.  At its meeting on July 7, 2009, the board renewed resolution NA-6 and passed it unanimously with five votes and two abstentions.  This appeal ensued. 

Petitioners contend that Lilly should be removed from the board and from the Board of Cooperative Educational Services (“BOCES”) for Orleans and Niagara Counties because he wilfully disobeyed a decision and lawful requirement of the Commissioner and wilfully neglected his duty as a board member by abstaining from voting on resolution NA-6 at the June 16, 2009 meeting, thereby illegally preventing its approval.  Petitioners assert that Weller should be removed from the board because he wilfully disobeyed a decision and lawful requirement of the Commissioner and wilfully neglected his duties by not voting on resolution NA-6 at the June 16, 2009 meeting, thereby illegally preventing its approval.

Respondent Weller contends, interalia that petitioners have received a legal defense from the district’s insurance carrier in connection with the Stepien litigation and no judgment has been rendered against them and that the applications must be dismissed as moot.  Respondent Lilly did not answer the petition.

The application 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioners admit that Lilly is no longer a member of the board so their application to remove him from that office is moot.  Petitioners’ claim that respondents illegally prevented approval of resolution NA-6 was laid to rest by the board’s July 7, 2009 approval of that resolution.  Petitioners’ application for respondents’ removal, therefore is moot (Applications of Lilly, 47 Ed Dept Rep 307, Decision No. 15,705; Application of Carbone, 46 id. 215, Decision No. 15,485). 

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

THE APPLICATION IS DENIED.

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