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Decision No. 17,787

Application of DOUGLAS S. ADAMS for the removal of Amany Messieha Dgheim as president and member of the Board of Education of the Suffern Central School District.

Decision No. 17,787

(November 7, 2019)

Balsamo, Byrne, Cipriani & Ellsworth, attorneys for petitioner, Richard M. Ellsworth, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner seeks removal of Amany Messieha Dgheim (“respondent”) as president and member of the Board of Education of the Suffern Central School District (“board”).  The application must be denied.

Given the disposition of this application, a detailed recitation of the facts is unnecessary.  Briefly, petitioner is the superintendent of the Suffern Central School District.  Petitioner alleges that, between February and March 2019, respondent engaged in a course of conduct intended to interfere with his duties as superintendent.  In particular, petitioner contends that respondent willfully violated Education Law §1711 and board policy by prohibiting petitioner from participating in a meeting of the board; usurping petitioner’s responsibility for recommending professional service providers to contract with the board; authorizing execution of a consultant services agreement without petitioner’s authorization; and modifying the agenda for a board meeting without petitioner’s approval.  Based on this conduct, petitioner seeks respondent’s removal from the board.  Petitioner’s request for a stay of “any and all actions taken by [r]espondent in her official capacity” was denied on March 28, 2019.

Respondent asserts that petitioner has failed to establish facts sufficient to justify her removal from the board.

Following the submission of the parties’ pleadings in this appeal, respondent submitted an “Affirmation to Dismiss Based upon Mootness,” alleging that petitioner’s application is now moot because respondent is no longer president and member of the board.  Petitioner submitted an affirmation in opposition to respondent’s affirmation, asserting that respondent’s affirmation is procedurally improper.  In addition, petitioner argues that the matter is not moot because respondent may “seek election at a later date.”

Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Here, I will exercise my discretion and accept the parties’ additional submissions to the extent that they address whether the appeal is moot as a result of events which occurred after the parties’ pleadings were submitted (see Appeal of Jane Doe, 58 Ed Dept Rep, Decision No. 17,627).

Based upon my review of the parties’ submissions, the application must be denied 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

The sole relief petitioner seeks in his application — other than interim relief, which was denied — is respondent’s removal from the board.  Respondent indicates that her term as president and member of the board ended on June 30, 2019.  She further indicates that she did not seek re-election – a fact petitioner concedes.  Accordingly, because respondent no longer serves on the board, petitioner’s application to remove her from the board is moot and must be denied (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718; Appeal of Parrino, 53 id., Decision No. 16,547; Application of the Board of Education of the Lake George Central School District, 52 id., Decision No. 16,467).

Petitioner nevertheless argues that his application is not moot because respondent may run for a position on the board in the future.  The Court of Appeals has held that an otherwise moot matter may be justiciable where there is:  (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues (Hearst Corp. v. Clyne, 50 NY2d 707; see also Russman v. Board of Education of the Enlarged City School District of the City of Watervliet, 260 F3d 114).

Here, petitioner has not established that his application fits within this narrow exception to the mootness doctrine (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718; see also Appeal of the Board of Education of the Greenwood Lake Union Free School District, 58 id., Decision No. 17,549; Appeal of C.H., 52 id., Decision No. 16,465).  Although petitioner claims that the matter may reoccur, bald speculation is insufficient to establish a likelihood of repetition.  Moreover, petitioner does not allege that the issues raised in his application typically evade review or that they are novel (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718).

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

THE APPLICATION IS DENIED.

END OF FILE