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Decision No. 14,521

Application of DIONE GOLDIN for the removal of Kurt W. Drexler, Robert J. Lerner, Maureen McCarthy, Heidi Resk and Ved Shravah, as members of the Board of Education of the Wappingers Central School District, and Wayne F. Gersen, as Superintendent of Schools.

Decision No. 14,521

(December 21, 2000)

Raymond G. Kuntz, Esq., P.C., attorney for respondents

MILLS, Commissioner.--Petitioner seeks the removal of various board members and the Superintendent of Schools of the Wappingers Central School District ("respondents"). The application must be denied.

On November 20, 1999, I issued a decision (Appeal of Goldin, 39 Ed Dept Rep 323, Decision No. 14,250), sustaining in part petitioner’s challenges to certain actions taken by respondent Gersen with respect to a school district election. The gravamen of the instant application is petitioner’s allegation that respondents acted in an unauthorized and illegal manner when they appealed Decision No. 14,250 in a proceeding commenced pursuant to Article 78 of New York’s Civil Practice Law and Rules ("CPLR"). On October 10, 2000, Supreme Court Justice Edward A. Sheridan rendered a decision in the Article 78 proceeding. In that decision, Justice Sheridan wrote:

As a threshold procedural objection, respondent Goldin contends that petitioners lack standing to prosecute this proceeding pursuant to Article 78 of the CPLR, because the Board of Education did not vote to authorize commencement of this proceeding. In reply, petitioners submit the affidavits of members of the Board of Education which establish that the Board authorized the bringing of this proceeding in an executive session of a meeting of the Board, and that the Board subsequently restated its authorization, nunc pro tunc, of the bringing of this proceeding in a public vote on a resolution at its meeting of May 22, 2000. The Court is satisfied that the prosecution of this proceeding is authorized by petitioner Board of Education, and thus, the petition will not be dismissed on this ground.

(Gersen v. Mills, Index #1806-00, Supreme Court, Albany County, Special Term, October 10, 2000). The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exist or which subsequent events have laid to rest (Appeal of Kipp, 40 Ed Dept Rep , Decision No. 14,504; Appeal of McCart, 40 id. ___, Decision No. 14,502). Because Justice Sheridan has ruled that respondents were authorized to bring the Article 78 proceeding, this application is moot, and must be denied to the extent that it seeks the removal of respondents based on their commencement of the Article 78 proceeding.

Petitioner’s remaining contentions -- alleging that respondents violated their Code of Ethics and the State’s Open Meetings Law with regard to the conduct of certain board meetings -- are unavailing. Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Lilker, 40 Ed Dept Rep , Decision No. 14,486; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275). Accordingly, the application must be denied for lack of jurisdiction.