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Decision No. 13,919

Appeal of STEWART S. LILKER from action of the Freeport Union Free School District regarding a nominating petition.

Decision No. 13,919

(April 15, 1998)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for a seat on the Board of Education of the Freeport Union Free School District, seeks to disqualify Dorothy Fox ("Fox") as a candidate for that position in the May 20, 1997 election. The appeal must be dismissed.

On April 21, 1997, the district clerk ("the clerk") received Fox's nominating petition. On April 25, 1997, the clerk advised petitioner that she had qualified Fox with 58 signatures. By letter dated April 25, 1997, petitioner asked the clerk to reconsider qualifying Fox because her petition contained signatures that were printed rather than signed. By letter dated April 28, 1997, the clerk denied petitioner's request to reject Fox's qualifying petition. On May 1, 1997, petitioner again asked the clerk to reconsider Fox's qualification. Petitioner commenced this appeal on or about May 7, 1997.

The election took place on May 20, 1997. Joyce-Lorraine Lisi was elected with 856 votes, petitioner finished in second place with 842 votes, and Dorothy Fox finished third with 537 votes.

Petitioner argues that Fox should be disqualified as a candidate because 11 of the 60 signatures on her nominating petition were invalid, leaving less than the requisite 54 valid signatures. Specifically, petitioner claims that the signatures were invalid either because the place of residence listed opposite the signature differs from that which appears on the individual's voter registration card, the signature on the petition did not match the signature on the voter registration card, the signer witnessed his own signature, or the signature appeared twice. Petitioner claims that Fox was ineligible to run and that the board should have disqualified her petition. Petitioner asks that I find at least 11 signatures on Fox's petition to be invalid, thereby invalidating the petition.

Respondent contends that Fox's petition contained 58 valid signatures -- more than the 54 required. It explains that two of the 60 signatures were invalid -- one because the signer witnessed his own signature and one because an individual signed the petition twice. Respondent also raises procedural defenses including mootness.

The appeal must be dismissed as moot. The Commissioner of Education will determine only matters in actual controversy and will not render a decision on a state of facts that no longer exists or which subsequent events have laid to rest (Appeal of Boehm, 37 Ed Dept Rep 208; Appeal of Harvey, 37 id. 194). Here petitioner disputes the validity of Fox's candidacy for the May 20, 1997 election. The election took place and Fox was defeated. Invalidating her nominating petition at this point would have no effect. Thus, the issue of the validity of her nominating petition is moot and the appeal must be dismissed. In view of this disposition, I will not address petitioner's specific claims as to the validity of the challenged signatures.

The petition also contains allegations that respondent failed to respond to petitioner's Freedom of Information Law (FOIL) request to inspect the district's voter registration records. With respect to allegations of FOIL violations, the appropriate forum is in the Supreme Court of the State of New York, not a ' 310 appeal to the Commissioner of Education (Appeal of Hendrick, 37 Ed Dept Rep 188; Appeal of Kushner, 36 id. 261). Therefore, I cannot address those allegations.