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Decision No. 14,632

Appeal of HAZEL SCANLON, et al., from action of the Board of Education of the City School District of the City of New York and Harold O. Levy, Chancellor, regarding the issuance of a Chancellor"s regulation.

Decision No. 14,632

(August 27, 2001)

Michael D. Hess, Corporation Counsel, attorney for respondent, Michelle M. Buescher, Esq., of counsel

MILLS, Commissioner.--Petitioners, six members of Community School Board 24, appeal the issuance of a regulation governing the selection process for community superintendents by the Chancellor of the City School District of the City of New York. The appeal must be dismissed.

By memorandum dated December 21, 2000, Chancellor Harold Levy issued a revised version of Chancellor"s Regulation C-37, governing the process for recruitment, screening, selection, appointment and reappointment of community superintendents. By letter dated January 3, 2001, petitioners appealed this action to both the Board of Education of the City School District of the City of New York ("respondent board") and the Commissioner of Education on the grounds that, among other things, the revised regulation improperly vested the Chancellor with authority to appoint an acting community superintendent. By memorandum dated January 11, 2001, Chad A. Vignola, General Counsel to the Chancellor, advised all community superintendents and community school board members that the Chancellor had "suspended the revised C-37 process until further notice" and advised that community school districts resume using the earlier version of the regulation.

Petitioners contend that the Chancellor exceeded his authority by issuing a regulation that grants him power to assign an acting superintendent when a community school district has no duly appointed superintendent. They argue that pursuant to Education Law "2590-h, the Chancellor must choose a community superintendent from candidates approved by the community school board. Petitioners contend that the revised regulation essentially gives the Chancellor unilateral power to choose the community superintendent because the Chancellor could select an acting superintendent of his choice and thereafter reject all candidates for the permanent position submitted by the community school board. Petitioners also contend, among other things, that the Chancellor exceeded his authority by requiring a community school board to submit for his approval a minimum of two candidates for each open community superintendent position. For relief, petitioners request a ruling that the revised regulation violates New York State law.

Respondent board contends that the appeal is moot because the regulation challenged by petitioners is no longer in effect. Respondent board also requests that I accept its late answer on the grounds that it has established good cause for the delay.

Preliminarily, I will accept respondent board"s late answer based on the personal circumstances detailed by its counsel and on the fact that there was some question as to whether the appeal would be maintained after it appeared that the matter was moot.

The appeal must now be dismissed as moot. 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 Squires, 40 Ed Dept Rep ___, Decision No. 14,458; Appeal of Razzano, 39 id. 303, Decision No. 14,244; Appeal of Davis, 38 id. 805, Decision No. 14,148). The Chancellor"s suspension of the revised regulation renders this appeal moot. Although petitioners request that I find that the proposed revision grants the Chancellor powers in excess of his statutory authority, any such finding would be advisory in nature inasmuch as the regulation is not in effect. The Commissioner of Education does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Tobias, 41 Ed Dept Rep ___, Decision No. 14,612; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275; Appeal of Weiss, 39 id. 69, Decision No. 14,176). Accordingly, the appeal must be dismissed.