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Decision No. 16,547


 Appeal of IRENE PARRINO from action of the BOARD OF EDUCATION OF THE MINEOLA UNION FREE SCHOOL DISTRICT regarding board member conduct and application for the removal of TERENCE HALE as a member and Vice President of the Board of Education of the Mineola Union Free School District.

Decision No. 16,547

(September 5, 2013)

Harris Beach, PLLC, attorneys for respondents, Warren H. Richmond, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Terence Hale (“respondent Hale”) from his position as a member and Vice President of the Board of Education of the Mineola Union Free School District (“respondent board”)(collectively “respondents”). Alternatively, petitioner requests that the charges she filed against respondent Hale be remanded to respondent board for a hearing. The appeal must be dismissed and the application denied.

Petitioner, a member of respondent board, claims that, in or about April 2013, respondent Hale sent inappropriate emails to her and others and that he continued to do so despite “multiple directives” from board members that he cease such communications. This appeal and application ensued.

Petitioner seeks respondent Hale’s removal from office on the grounds that he violated the school district’s code of conduct which, she contends, constitutes a wilful violation of law, and that he wilfully disobeyed board directives.

Respondents deny petitioner’s allegations and argue that the application is moot by reason of respondent Hale’s resignation, effective July 2, 2013. Respondents further argue that the petition fails to state a cause of action because it lacks allegations of a wilful violation of law, neglect of duty, or wilful disobedience of any decision, rule, or regulation, so as to establish grounds for removal.

In her reply, petitioner admits that the resignation letter is effective as of July 2, 2013, but claims that the petition “will never be moot” due to respondent Hale’s unofficial involvement in board meetings and the

possibility that he may run for re-election to the board in the future.

Initially, I must address a procedural issue. On or about May 22 and 23, 2013, petitioner commenced an appeal against respondents (“first petition”). On May 28, 2013, petitioner commenced the instant appeal by service of an “amended petition” on respondents. By letter dated June 3, 2013 to my Office of Counsel, petitioner requested that the first petition be withdrawn. However, in the instant appeal, petitioner attaches the first petition and states that it is “incorporated by reference” into the amended petition. The first petition and the amended petition differ in several material respects, including the relief requested. Accordingly, while I will consider the first petition as an exhibit in support of the amended petition, I will not consider it as part of the amended petition and request for relief.

The appeal must be dismissed as moot. 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Respondents submit with their verified answer a copy of respondent Hale’s resignation later, dated June 11, 2013, which states that he resigned his seat on the board, effective at 12:01 a.m. on July 2, 2013. Accordingly, because respondent Hale is no longer a member of the board, petitioner’s application to remove him is moot.

Finally, I note that, while petitioner named the board as a respondent in the caption of this proceeding and personally served the district clerk, her amended petition does not state a claim or seek any relief against the board. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Accordingly, to the extent petitioner attempts to raise claims against the board, the appeal is dismissed.

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