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Decision No. 17,242

Appeal of CATHERINE SCHRAUTH FORCUCCI from action of the Board of Education of the Hamburg Central School District regarding her removal from office.

Decision No. 17,242

(November 1, 2017)

Murphy Meyers LLP, attorneys for petitioner, Margaret A. Murphy and Nicholas M. Hriczko, Esqs., of counsel

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education (“respondent” or “board”) of the Hamburg Central School District (“district”) to remove her as a board member.  The appeal must be dismissed.

This decision arises from events which followed the factual scenario described in Appeal of Forcucci, 57 Ed Dept Rep, Decision No. 17,204.  On May 21, 2013, petitioner was elected to a three-year term on respondent board.  On May 27, 2014, respondent commenced a removal proceeding whereby it sought to remove petitioner for official misconduct pursuant to Education Law §1709(18).  The hearing, presided over by a hearing officer, concluded after nine days of hearing on August 9, 2014. 

After a review of the hearing officer’s report and the hearing record at a board meeting held on September 2, 2014, respondent voted to remove petitioner as a member of the board, effective immediately.  This appeal ensued.[1]

On the same day that petitioner filed the instant petition, she and another school board member filed a civil action in Supreme Court, Erie County against respondent challenging her removal from the board and seeking a determination that respondent’s determination was “void” and must be set aside.  Respondent removed the action to the U.S. District Court for the Western District of New York (see Forcucci v. Bd. Of Educ. of Hamburg Cent. Sch. Dist., No. 1:14-cv-00830-RJA [WDNY Oct. 7, 2014]).  The District Court dismissed, or granted summary judgment to the board on, each of petitioner’s claims on August 5, 2016 (Forcucci v. Bd. of Educ. of Hamburg Cent. Sch. Dist., 2016 WL 4160200 [WDNY Aug. 5, 2016]). 

Petitioner also commenced a separate civil action in Erie County Supreme Court in 2014 which relates to the underlying events described in this appeal and involves First Amendment challenges to the board’s removal proceedings.  On June 9, 2017, the Appellate Division affirmed Supreme Court’s dismissal of petitioner’s claims (see Forcucci v. Bd. of Educ. of Hamburg Cent. Sch. Dist., 151 AD3d 1660).

Petitioner alleges that the conduct with which she was charged does not constitute official misconduct and does not warrant her removal pursuant to Education Law §1709(18).  Petitioner seeks an order setting aside respondent’s removal determination.

Respondent contends that petitioner has not met her burden of proving that her conduct did not constitute official misconduct, and that its actions were proper and neither arbitrary nor capricious.

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).    

Here, the sole relief sought by petitioner is a “determination that the conduct alleged against [her] does [sic] constitute official misconduct and does not warrant her removal....”  The term of the board seat to which petitioner was elected expired on June 30, 2016.  Accordingly, the appeal must be dismissed as moot (see e.g. Appeal of Jones-White, 44 Ed Dept Rep 347, Decision No. 15,194).[2]

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




[1] Petitioner did not seek interim relief in this proceeding.


[2] Additionally, I take judicial notice of board meeting minutes for June 14, 2016, published on the district’s official website, which indicate that, following petitioner’s removal and the appointment of a new board member to her former seat, three incumbent board members ran unopposed for three seats on respondent’s board in the May 2016 election.