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Decision No. 14,148

Appeal of MAXINE DAVIS from action of the Board of Education of the Westport Central School District and Pamela Raudenbaush with respect to the termination of her services as a school psychologist and to her right to reinstatement.

Decision No. 14,148

(June 23, 1999)

James R. Sandner, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondents, Susan T. Johns and Norman H. Gross, Esqs., of counsel

MILLS, Commissioner.--Petitioner seeks to annul an action of the Board of Education of the Westport Central School District ("board") taken July 24, 1997, appointing respondent Pamela Raudenbaush as a part time elementary counselor. Petitioner demands employment in that position, together with back pay and benefits. The appeal must be dismissed.

Prior to the 1995-1996 school year, petitioner was employed as a full time school psychologist at Westport. During the 1995-1996 and 1996-1997 school years, petitioner served as Westport's school psychologist in a part-time, 60 percent position.

On March 6, 1997, the board abolished the part-time school psychologist position occupied by petitioner, effective at the end of the 1996-1997 school year. At its March 27, 1997 meeting, the board approved the creation of a "part time elementary counselor" for the 1997-1998 school year. At that same meeting, the board also determined to contract with a school psychologist on a per diem basis to perform psychological testing services for the district to the extent such services became necessary.

Petitioner applied for the part-time elementary counselor position, but on July 24, 1997, the board appointed respondent Pamela Raudenbaush to that position to work 20 hours per week.

Petitioner brings this appeal, claiming that the newly created part-time elementary counselor position and her previous part-time school psychologist position are legally similar, and that she is, therefore, entitled to the elementary counselor position pursuant to Education Law ""2510(1) and 3013(1). Respondents deny that the positions are similar, and argue that they are in different certification and tenure areas. Respondents further argue that petitioner does not have the proper certification to occupy the newly created elementary counselor position and that the appeal is untimely.

I find that the appeal must be dismissed as moot. On November 14, 1997, the board replaced the part-time elementary counselor position with a full time elementary counselor position, in the tenure area of school counseling and guidance, and appointed respondent Raudenbaush to a probationary appointment in that new position effective December 8, 1997. Petitioner subsequently brought a separate appeal with respect to the new full time elementary counselor position, which is still pending.

The part-time elementary counselor position to which petitioner seeks appointment in this appeal no longer exists, and no meaningful relief can be granted with respect to it. It is well settled that the Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Angelo, 38 Ed Dept Rep ____, Decision No. 14,147; 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).