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Decision No. 14,596

Appeal of ANDREW P. DORO from action of the Board of Education of the Millbrook Central School District regarding a special district meeting.

Decision No. 14,596

(July 9, 2001)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner, a candidate for the Board of Education of the Millbrook Central School District ("respondent"), challenges the actions taken by respondent in a special meeting held on May 17, 2001. The appeal must be dismissed.

At the annual meeting held on May 15, 2001, the following six candidates ran for three open seats on respondent board, Bruce J. Boissey, Ambrose Verdibello, Edward A. Lindsay, Dawn R. Blackburn, Phillip Luke Campbell and petitioner. After the close of the polls and the canvass of votes, respondent"s district clerk announced that candidates Verdibello, Campbell and petitioner had been elected to the board of education. In addition, the proposed budget proposition and capital reserve fund proposition passed. Respondent reconvened its regular board meeting on that same date and accepted the election results. The voting machines used at the election were sealed and secured.

The morning following the election, respondent"s board president expressed confusion over how the budget could have passed handily while incumbent board members were defeated. Respondent"s superintendent met with respondent"s district clerk and the voting machine custodian and reviewed the voting machine sheets. At this meeting, both the district clerk and the voting machine custodian concluded that there had been an incorrect reading of the voting machine results on the night of the election. The district clerk had mistakenly assigned the numbers from the voting machines to the wrong candidates. They further concluded that had the voting machines results been read correctly, candidates Blackburn, Boissey and Lindsay would have received the highest numbers of votes, and as such, been elected to the three open board seats.

On May 17, 2001, respondent called a special board meeting to publicly acknowledge and explain the error that had occurred. After listening to the explanation of the error, respondent board voted to rescind its resolution of May 15, 2001 accepting the results of the election of board members. Respondent then voted to accept and certify the "corrected" election results with candidates Boissey, Blackburn and Lindsay receiving the highest number of votes. This appeal ensued. In response to petitioner"s request for interim relief, by order dated June 28, 2001, Acting Commissioner Richard H. Cate ordered respondent to open the voting machines and absentee ballots cast at the annual meeting and recanvass the votes cast. The interim order further required respondent to provide reasonable notice of the recanvass to the candidates and the public to permit their attendance. Respondent was further ordered to certify the results of the recanvass to the Commissioner.

Pursuant to the Acting Commissioner"s order, the recanvass took place on July 2, 2001 and respondent certified the results of the recanvass on that same date. The results of the recanvass indicate that candidates Blackburn, Boissey and Lindsay received the highest number of votes and as such have been elected to respondent board.

Petitioner argues that respondent did not have the authority to unilaterally correct the election error and submits that the only legal remedy to correct an election dispute or irregularity is to file an appeal with the Commissioner of Education. Petitioner seeks an order staying respondent"s actions at the meeting held on May 17, 2001.

Respondent contends that its actions taken at the special meeting held on May 17, 2001 were taken solely to correct the human error that occurred on election night and to reflect the will of the voters that candidates Boissey, Lindsay and Blackburn be elected to the board of education.

The appeal must be dismissed as moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a set of facts which no longer exist or which subsequent events have laid to rest
(Appeal of Floramo, 39 Ed Dept Rep 389, Decision No. 14,269; Appeal of Wright, 38 id. 756, Decision No. 14,134; Appeal of Leslie, 38 id. 194, Decision No. 14,013). The crux of the petition is that respondent acted to correct an election error without legal authority and without intervention of the Commissioner of Education. In light of the Acting Commissioner"s order and respondent"s actions taken pursuant to such order, I now find the matter to be moot.