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Decision No. 14,147

Appeal of MICHAEL ANGELO from action of the Board of Education of the Half Hollow Hills Central School District, et al., concerning the conduct of a school board election.

Decision No. 14,147

(June 22, 1999)

Reisman, Peirez, Reisman & Calica, LLP, attorneys for petitioner, Michael J. Angelo, Esq., of counsel

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent Board of Education of the Half Hollow Hills Central School District, Jacob S. Feldman and Laura A. Ferrugiari, Esqs., of counsel

Bee, Eisman & Ready, Esqs., attorney for respondent Alissa Taff, Peter A. Bee, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the results of a school district election held by the Board of Education of the Half Hollow Hills Central School District on May 19, 1998. The appeal must be dismissed.

Petitioner was one of four candidates for two available seats on the board of education. The vote totals registered on the voting machines were:

Greenspan 2,037 votes

Angelo 1,557 votes

Taff 1,535 votes

Austein 986 votes

However, when absentee ballots were counted, the combined vote totals were:

Greenspan 2,069 votes

Taff 1,603 votes

Angelo 1,595 votes

Austein 1,004 votes

Because petitioner received only 38 absentee votes, while candidate Taff received 68, Taff gained a seat on the board, rather than petitioner.

Petitioner raises numerous challenges to the validity of the absentee ballots, which he claims cost him the election, and asks that I declare the absentee ballots void and further declare the election results based upon the votes registered in the voting machines alone. Respondents generally deny any wrongdoing in the conduct of the election, and raise a number of affirmative defenses.

On May 27, 1999, my Office of Counsel sought further information from the parties pursuant to 8 NYCRR "276.5. As a result of this inquiry, I have learned that on May 18, 1999, petitioner was elected to a seat on the board of education for a term of three years, commencing July 1, 1999. As a result, the appeal has become moot, and must be dismissed. It is well settled that the Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Meltzer, 38 Ed Dept Rep 330, Decision No. 14,046; Appeal of Lascala, 38 id. 16, Decision No. 13,974; Appeal of Schuler, 37 id. 512, Decision No. 13,915; Appeal of Lawson, 36 id. 450, Decision No. 13,774).