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Decision No. 15,777

Application of the BOARD OF EDUCATION OF THE BRENTWOOD UNION FREE SCHOOL DISTRICT for the removal of Joseph Fritz and Tomás Del Río as trustees of the board of education.

Decision No. 15,777

(July 9, 2008)

O’Brien & O’Brien, LLP, attorneys for petitioner, Stephen L. O’Brien, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondents, Robert H. Cohen, Esq., of counsel

AHEARN, Acting Commissioner.--The Board of Education of the Brentwood Union Free School District (“petitioner” or “board”) seeks an order pursuant to Education Law §306 removing board trustees Joseph Fritz and Tomás Del Río (“respondents”).  The application must be denied.

Respondent Del Río has been a member of the board since 2002 and served as board president during the 2005-2006 and 2006-2007 school years.  Respondent Fritz has been a member of the board since May 2005.

Petitioner seeks the removal of respondents on several grounds.  Among other things, petitioner claims that in June and July 2007, respondent Del Río (1) promised another trustee “anything he wanted” if the trustee would agree not to vote for another trustee as board president, (2) stated at a board meeting that, if a certain person was not appointed, no trustee “would get enough votes for any family member to be appointed” and (3) “threatened” that no trustee “would ever again obtain the super majority that was necessary for a relative to be appointed to a position.”

Petitioner also alleges that on September 20, 2007, respondent Fritz “threatened” that the superintendent’s recommendation of a teacher’s appointment “would only be approved if a certain other person was appointed to another position.”  Further, petitioner contends that respondents’ subsequent abstention from the vote on the teacher’s appointment was improper.

According to petitioner, the actions described above constitute willful misconduct for which respondents Fritz and Del Río should be removed from office.  Specifically, petitioner argues that respondents’ actions constitute a breach of their duties as board trustees and “official misconduct” under Penal Law §195.00.

Respondents assert that all claims against respondent Del Río that are based on events that occurred prior to September 20, 2007 are untimely.  Respondents also argue that the application for respondent Fritz’s removal must be dismissed as untimely.  Respondents contend that, to the extent petitioner objects to respondents’ statements of opinion, such statements are protected by the First Amendment.  Respondents also maintain that the application must be dismissed for failure to establish a willful violation of the law and for failure to join a necessary party.  Finally, respondents request that I grant them a certificate of good faith pursuant to Education Law §3811(1).

The application must be dismissed as moot.  The record indicates that respondent Fritz was defeated in the district’s May 20, 2008 election and that respondent Del Río did not run for re-election.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Since respondents are no longer board trustees, petitioner’s application to remove them is moot.

In light of the fact that the application is moot, I need not address the merits.  However, one administrative matter remains.  Respondents Fritz and Del Río have requested that I grant them a certificate of good faith pursuant to Education Law §3811(1) for the purpose of reimbursing them for their legal fees and expenses incurred in this proceeding.  However, Education Law §3811(1) does not provide for reimbursement of legal expenses incurred to defend “a criminal prosecution or an action or proceeding brought against ... [a board member] by a school district ... including proceedings before the Commissioner of Education ...”  Respondents, therefore, are not entitled to a certificate of good faith because this application was brought by the school district of which they are officers (seeApplication of the Bd. of Educ. of the West Babylon Union Free School District, 21 Ed Dept Rep 41, Decision No. 10,592).  Accordingly, respondents’ request for a certificate of good faith must be denied.