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Decision No. 14,819

Application of MARILYN McDOUGALL and JAMES DACEY for the removal of Eileen McAvoy as Superintendent of the Perry Central School District.

Decision No. 14,819

(November 6, 2002)

Harris Beach LLP, attorney for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the Perry Central School District, seek the removal of Eileen McAvoy ("respondent") from her position as superintendent. The application must be denied.

On February 21, 2002, the Wyoming County Chamber of Commerce ("Chamber") hosted a visit by United States Senator Hillary Clinton and Sallie Mae corporate executives in the Perry Elementary/Middle School auditorium. Petitioners contend that respondent willfully violated Education Law "414 by improperly permitting this use of school facilities during school hours. Petitioners also contend that respondent improperly denied them access to the school during the Senator"s visit. They seek respondent"s removal, a written apology from the board of education, and a written apology to the student body from the principal.

Respondent contends that permission to use the school auditorium was proper; respondent did not engage in any willful violation of law; petitioners have failed to meet their burden of proof; petitioners failed to join the board of education and principal as respondents; and the Commissioner lacks authority to grant the relief requested.

I must first address a procedural issue. Petitioners served a reply on May 6, 2002. Petitioner Dacey then submitted a "Note of Issue and Reply" dated May 15, 2002, and a letter dated May 24, 2002. Petitioners attempt to buttress their claims by adding arguments and exhibits in these documents. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (8 NYCRR ""275.3 and 275.14; Application of Bean, 42 Ed Dept Rep ___, Decision No. 14,810; Appeal of O"Herron, 40 id. 204, Decision No. 14,461; Appeal of Simpson, et al., 40 id. 5, Decision No. 14,402). Therefore, while I have reviewed petitioners" replies and petitioner Dacey"s letter, I have not considered those portions that contain new assertions that are not responsive to new material or affirmative defenses set forth in the answer, nor have I considered exhibits that should have been submitted with the petition.

The appeal must be dismissed as moot. 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 (Application of Avnet, 41 Ed Dept Rep ___, Decision No. 14,669; Appeal of Anslow, et al., 40 id. 361, Decision No. 14,498). By letter dated September 27, 2002, respondent"s attorney informed my Counsel"s office that respondent resigned her position effective September 2, 2002. Consequently, petitioners" application to remove respondent from her position as superintendent is moot.

To the extent petitioners seek an apology, the Commissioner lacks the authority to order the board of education or any school district employees to issue an apology (Appeal of Lloyd, 39 Ed Dept Rep 537, Decision No. 14,303).

In light of this disposition, I need not address the parties" remaining contentions.