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Decision No. 12,692

Appeal of WESLEY EVANS MARTIN from action of the Board of Education of the Central Islip Union Free School District, Mary Jane Finnin as President of the Board of Education, Margaret A. Spach as District Clerk, and Hugh Bracken, Betti Ford, John P. Proscia, Nancy Weiss and Norman A. Wagner, relating to the rejection of a nominating petition.

Decision No. 12,692

(April 30, 1992)

Pelletreau & Pelletreau, Esqs., attorneys for respondent board of education, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent board of education's rejection of his nominating petition as a candidate for the June 26, 1991 board of education election. The appeal must be dismissed.

At a May 25, 1991 board meeting, respondent board of education voted to reject petitioner's nominating petition based upon evidence that he was not a resident of the school district for one year prior to the election and, therefore, was not qualified to serve on the board of education. On June 10, 1991, respondent board of education rescinded its prior action and directed that petitioner's name be placed on the ballot. At the June 26, 1991 election, petitioner received the lowest vote total of the six board candidates and was defeated by a substantial margin.

Insofar as petitioner seeks an order declaring respondent's action of May 25, 1991 null and void and restoring his name to the ballot, this appeal is moot because respondent rescinded its action and placed petitioner's name on the ballot. The Commissioner of Education will determine only matters in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of Russo, 31 Ed Dept Rep 190; Appeal of Krause, 27 id. 57; Appeal of Koslow, 26 id. 331).

Petitioner nevertheless contends that the appeal should not be dismissed, and seeks a declaratory ruling that he has been damaged and prejudiced by respondent's allegedly illegal action, an order directing the board of education to cease intruding into the process of certification of nominating petitions and an assessment of costs against respondent.

Petitioner's request for a declaratory ruling is nothing more than a request for an advisory opinion on a matter which has been rendered moot by subsequent events. The State Education Department has not elected to establish a mechanism for issuing declaratory rulings pursuant to State Administrative Procedure Act "204 (Appeal of Richards, 25 Ed Dept Rep 38). In an appeal under Education Law "310, I will not issue an advisory opinion on a matter no longer in actual controversy (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 262; Appeal of Russo, supra). Like the bulk of petitioner's appeal, this claim must be dismissed as moot.

Even if I accept petitioner's contention that his request for an order directing respondent to cease interfering with the district clerk's certification of nominating petitions is not moot, I would dismiss such claim for failure to state a claim upon which relief may be granted. To qualify as a member of a board of education, an individual must be a qualified voter of the district and a resident of the district for at least one year prior to the election (Education Law "2102). While a nominating petition must be presented to the district clerk, the board of education is authorized to determine whether a board candidate is ineligible to serve and to refuse to accept a nominating petition from an ineligible candidate (Education Law ""2035[2]; 2018[a],[d]; Appeal of Cox, 28 Ed Dept Rep 156; see, Ferraro v. City School Dist. of City of Schenectady, 69 Misc. 2d 800, 331 NYS2d 490, aff'd, 39 A.D. 2d 645). There is no merit to petitioner's contention that respondent board of education's involvement in making determinations concerning acceptance of nominating petitions is improper.

Finally, petitioner's claim that he is entitled to an award of costs for expenses incurred in this appeal must be dismissed for failure to state a claim upon which relief may be granted. The Commissioner of Education has no authority to award costs or attorney's fees in an appeal pursuant to Education Law "310 (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212; Appeal of Sileo, 28 id. 313).