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Decision No. 14,165

Appeal of DAVID MORENUS, on behalf of JOSEPH MORENUS, from action of the Board of Education of the Sidney Central School District regarding student discipline.

Decision No. 14,165

(July 16, 1999)

Joseph A. Ermeti, Esq., attorney for petitioner

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the Sidney Central School District ("respondent") regarding the suspension of his son. The appeal must be dismissed.

On or about June 14, 1996, petitioner's son was involved in an incident in which an explosive device was discharged on school property during the school day. The student was suspended for five days beginning June 17, 1996. A hearing was held on September 18, 1996. The superintendent issued his determination on September 27, 1996, finding the student guilty of assisting with the discharging of an explosive device on school property in violation of the Federal Gun Free Schools Act of 1994. A one-year suspension was imposed for the entire 1996-97 school year. Petitioner appealed to respondent, which upheld the suspension. This appeal ensued in which petitioner seeks readmission of his son to respondent's schools. Petitioner's request for interim relief pending a determination on the merits was denied on March 10, 1997.

Petitioner contends that the suspension was excessive and not proportionate to the severity of his son's offense. Petitioner also contends that his son did not violate the Gun Free Schools Act because he did not bring the explosive to school and because the device was not a "weapon" as defined by the Act. Petitioner further contends that his son did not receive a fair hearing because respondent's superintendent of schools was not an independent hearing officer but acted as an advocate in presenting the case against his son and deliberated in a closed room with respondent during the appeal of his decision to the board. Petitioner contends that his son was punished for the same offense twice because a one-year suspension was imposed after he served the initial five-day suspension.

Respondent contends that the charge was properly sustained and that the penalty was appropriate. Respondent also contends that the appeal should be dismissed as untimely because petitioner was given notice of the board's final decision on the date it was made, January 14, 1997, but did not commence this appeal until thirty-one days later, on February 14, 1997. Petitioner further contends that petitioner's son was not punished twice for the same offense because the superintendent merely continued the suspension imposed for conduct which occurred on the last day of classes in the previous school year and, therefore, it was all part of the same proceeding.

The appeal must be dismissed because it is moot. The Commissioner of Education only decides 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 June D., 38 Ed Dept Rep. 596, Decision No. 14,101; Appeal of McConnon, 37 id. 691, Decision No. 13,959; Appeal of Oyibo, 37 id. 356, Decision No. 13,878). According to information submitted by respondent, petitioner's son served his suspension and returned to school on September 3, 1997. The only relief petitioner seeks, other than the interim order that was already denied, is to have his son readmitted to respondent's schools.

Accordingly, the appeal is moot and must be dismissed. In light of the foregoing disposition, I will not address the parties' remaining contentions.