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Decision No. 12,807

Appeal of ROBERT and DIANA ARMS, and MARK and ANNE POTTER, on behalf of MICHAEL ARMS and ERIC POTTER, from action of the Board of Education of the Cornwall Central School District, regarding employee discipline.

Decision No. 12,807

(September 15, 1992)

Neuman, Tamsen & Greher, attorneys for petitioner Potter, Peter H. Neuman, Esq., of counsel

Anderson, Banks, Curran & Donoghue, attorneys for respondent, John M. Donoghue and Rochelle J. Auslander, Esqs., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's action regarding the alleged misconduct of a probationary guidance counselor employed by respondent in the Cornwall Central School District ("the district"). The appeal must be dismissed.

Petitioners' children attended high school in respondent's district during the 1991-92 school year. In February 1992, petitioners alleged that the guidance counselor had given extravagant gifts to their children, had acted inappropriately in disclosing confidential information and had exaggerated his professional background. Respondent's superintendent directed the high school principal to investigate the charges. At the conclusion of the investigation on March 5, 1992, the principal determined that the counselor had acted inappropriately and met with him to discuss his conduct. During the course of that meeting on April 10, 1992, the counselor submitted his resignation, effective July 3, 1992. On April 27, 1992 the board accepted the resignation. This appeal ensued.

Petitioners allege that the counselor should be dismissed. They also contend that the investigation was not handled properly by school district officials.

Respondent alleges that since the subject of the investigation has resigned, the matter is moot. Respondent contends that petitioners' confused, repetitious and intermingled allegations of fact hinder its ability to answer the petition. Respondent also alleges that the petition should be dismissed as to petitioners Mark and Anne Potter since they have withdrawn their appeal.

Before discussing the merits, I will address the procedural issues raised. The Commissioner of Education will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Application on a Child with a Handicapping Condition, 31 Ed Dept Rep 337; Appeals of Mitzner, 31 id. 139; Appeal of Sileo, 28 id. 313). As a result of respondent's investigation, the counselor has resigned from his position and his resignation has been accepted by respondent. Because it appears that petitioners are seeking dismissal of the counselor and he is no longer employed by the district, the matter is moot.

The appeal must also be dismissed for failure to comply with 8 NYCRR 275.10, which provides that a petition:

... shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

The petition repeatedly states that petitioners are aggrieved yet fails to state a claim upon which any relief can be granted. It does not identify respondent's "official act or decision" from which the appeal is taken (Education Law '310[7]) except to take issue with the actions of the counselor, who is no longer employed by the district, and respondent's handling of the investigation, which has been completed. To the extent that petitioners appear to request the revocation of the counselor's certificate, such relief is not available in an appeal pursuant to Education Law '310 (Appeal of Rossi and Wagner, 31 Ed Dept Rep 367).

Since petitioners Mark and Anne Potter withdrew their appeal on May 13, 1992, the petition is dismissed with respect to them.

Even if the appeal were not moot or otherwise procedurally defective, I would dismiss it on the merits. It is clear that a board of education has broad discretion to determine whether disciplinary action against an employee is warranted (Appeal of Won, 29 Ed Dept Rep 381). Petitioners appear to maintain that respondent handled the disciplinary matter of the counselor inappropriately. I find no basis in the record to conclude that respondent acted unreasonably in its investigation of the matter. In fact, I note that the investigation culminated in the resignation of the counselor and that petitioners' objective in that respect appears to have been met.

I have reviewed petitioners' other contentions and find them without merit.