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Decision No. 14,627

Appeal of THOMAS SHEPPARD from action of the Board of Education of the Cornwall Central School District regarding a district election.

Decision No. 14,627

(August 22, 2001)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

CATE, Acting Commissioner.--Petitioner challenges certain actions taken by the Board of Education of the Cornwall Central School District ("respondent") with respect to a district budget vote and school board election. The appeal must be dismissed.

At its April 23, 2001 meeting, respondent adopted a resolution that, among other things, appointed its president, Garnet C. McGrath, "permanent chairman" of its annual district meeting and budget vote scheduled for May 15, 2001. In the same resolution, respondent appointed Superintendent Margaret Dames assistant chairperson of the meeting and vote. The meeting and vote were conducted as scheduled on May 15, 2001.

The petition in this appeal, which is dated May 11, 2001, was received in my Office of Counsel on or about May 17, 2001. Petitioner requested an order prohibiting Ms. McGrath from functioning as chairperson at the May 15 meeting and vote because she was a candidate for election to the board of education. Petitioner asserted that this violated New York State Election Law "3-401. Petitioner also sought an order prohibiting Dr. Dames from functioning as assistant chairperson on May 15 because, he alleged, she drafted the resolution appointing herself and Ms. McGrath and must "assume responsibility for purposely violating New York State Election Law." Finally, petitioner asked the Commissioner to annul the resolution. Petitioner"s request for interim relief was denied on May 24, 2001.

Respondent asserts that the appeal has become moot because the meeting and vote took place on May 15, 2001. Respondent also argues that petitioner failed to serve the petition as required by 8 NYCRR "275.8, failed to join Ms. McGrath and Dr. Dames as parties and failed to establish a clear legal right to the requested relief.

The appeal must be dismissed as moot. The record reflects that the election occurred on May 15, 2001. Accordingly, the relief petitioner requests -- that the Commissioner bar Ms. McGrath and Dr. Dames from serving in their appointed positions on May 15, 2001 and annul their appointments -- cannot be granted. 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 Doro, 41 Ed Dept Rep __, Decision No. 14,596; Appeal of K.M., 39 id. 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990).

Even if the appeal were not moot, it would be dismissed on procedural grounds. The petition was not served in accordance with the requirements of "275.8 of the Commissioner"s regulations. To commence an appeal against a board of education, a copy of the petition must be personally delivered to the district clerk, to any trustee or member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR "275.8[a]). Petitioner served the papers in this appeal on Margaret Davidson, who is employed as a secretary to the Assistant Superintendent for Business, Richard Morgan. Mr. Morgan also serves as the district clerk. Ms. Davidson is not a proper person to accept service according to the Commissioner's regulations, nor has she been designated to accept service for the district either in her role as secretary to the district clerk or as secretary to an assistant superintendent. When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper (Appeal of Mackay, 39 Ed Dept Rep 815, Decision No. 14,391; Appeal of Bowers, 34 id. 603, Decision No. 13,424; Appeal of Cauley, 33 id. 359, Decision No. 13,077).

Petitioner also failed to join Ms. McGrath and Dr. Dames, who would have been necessary parties had the appeal not been rendered moot. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Application of Dulkiewicz, 40 Ed Dept Rep __, Decision No. 14,590; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Petitioner challenged respondent"s resolution appointing Ms. McGrath and Dr. Dames to serve as chairperson and assistant chairperson of the district meeting and requested an order barring them from serving. Because a decision in favor of petitioner clearly would have affected their interests, they are necessary parties to this proceeding. Petitioner"s failure to join them therefore warrants dismissal.

In light of these determinations, I need not address the parties" remaining contentions.