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Decision No. 12,583

Appeal of MARY HALLORAN from action of the Board of Education of the Plainview-Old Bethpage Central School District and Arthur C. Colver, Superintendent regarding tenure.

Decision No. 12,583

(September 19, 1991)

Immerman & Perlman, Esqs., attorneys for petitioner, Stanley A. Immerman, Esq., of counsel

Gregory J. Guercio, Esq., attorneys for respondents, Gary L. Steffanetta, Esq., of counsel

SOBOL, Commissioner--Petitioner appeals from a determination of respondent Plainview-Old Bethpage Central School District (the district) reassigning her from the position of high school physical education department chairperson to the position of middle school physical education department chairperson, and requiring her to commence a new probationary period. The appeal must be dismissed.

On June 17, 1985, the district appointed petitioner to the position of physical education chairperson, subject to a three-year probationary period commencing on September 1, 1985. Petitioner was assigned to the Plainview-Old Bethpage High School. She received tenure on September 1, 1991.

As a result of declining enrollment, the district resolved to close the Plainview-Old Bethpage High School, effective September 1, 1991. Consequently, by letter dated December 19, 1990, respondent Colver informed petitioner that her position was being abolished. Petitioner was offered a position as physical education chairperson in one of the district's middle schools. Because the district regarded the middle school position as a separate administrative tenure area, however, petitioner was asked to commence a new probationary period beginning September 1, 1991. Contending that the high school and the middle school positions were, in fact, in the same tenure area, and that she should not be required to complete a new probationary period, petitioner commenced this appeal on January 14, 1991.

The record in this appeal was closed in March 1991. In April 1991, however, respondents received permission to submit additional information (8 NYCRR 276.5). Respondents' submission reveals that, on March 26, 1991, the district abolished numerous middle management positions, including the position of physical education chairperson at the middle school level. Respondents contend that such action renders the instant appeal moot. On the record before me, I must agree. By virtue of the district's action, petitioner has been excessed from the position of middle school physical educational chairperson. As indicated, she has also been excessed from the position of high school physical education chairperson. For purposes of this appeal, it is of no consequence, therefore, whether these positions lie in separate tenure areas or a single tenure area. In either case, petitioner remains excessed. Consequently, there is no longer an actual case in controversy. The Commissioner will determine only matters in actual controversy and will not render a determination on a controversy which subsequent events have laid to rest (Appeal of Bahret, 30 Ed Dept Rep 161, 163; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 197, 198. The appeal must therefore be dismissed as moot.