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Decision No. 17,682

Appeal of DEBORAH JANSEN CURRAN and REBECCA BERNA from action of the Board of Education of the Massapequa Union Free School District regarding the filling of a board vacancy.

Decision No. 17,682

(July 3, 2019)

Hamburger, Maxson, Yaffe & McNally, LLP, attorneys for respondent, Richard Hamburger, Esq., of counsel

ELIA., Commissioner.--Petitioners challenge the decision of the Board of Education of the Massapequa Union Free School District (“respondent” or “board”) to leave vacant a seat on its board.  The appeal must be dismissed.

On June 28, 2018, respondent declared the seat of former trustee Brian Butler vacant because of repeated, unexcused absences from board meetings.[1]  In their petition, petitioners assert that, at a July 5, 2018 meeting of the board, respondent’s president announced that the board had unanimously decided not to fill the vacant seat and that such decision “would force the trustees to work together.”  Petitioners further assert that, at the meeting, “[e]ach trustee made a statement that they supported the decision” to leave the seat vacant.[2]  In its answer, respondent denies petitioners’ assertions regarding the board’s purported decision not to fill the vacant seat.

Petitioners argue that respondent’s alleged decision not to fill the vacant seat violates State law and the district’s “BOE Policies & Superintendent's Regulations Manual,” which establishes a five-member board.  Petitioners further contend that respondent’s decision to leave the seat vacant was arbitrary and capricious and they seek, inter alia, an order to compel respondent to comply with applicable State laws.  On July 25, 2018, I denied petitioners’ request for interim relief.

Respondent asserts that petitioners lack standing to bring this appeal; that there is no appellate jurisdiction for the Commissioner to exercise in this matter; that, by law, the board has discretion to not immediately fill a board vacancy; and that petitioners have failed to show, or even allege, that the vacancy is “detrimental to the interests of the school community.”

By letter dated March 14, 2019, my Office of Counsel directed respondent, pursuant to §276.5 of the Commissioner’s regulations, to submit “[a]n affidavit stating whether the Massapequa Board of Education will seek to fill the Board seat that is currently vacant (as a result of the removal from office of former trustee, Brian Butler) at the school board election scheduled to be held on May 21, 2019.”  In an affidavit dated March 22, 2019, respondent’s superintendent averred that “there are two trustee seats up for election at the May 21, 2019 vote.  One of the two seats is the remaining term of the vacant seat, formerly occupied by Brian Butler.”

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  I take judicial notice of public information on the district’s website that, as a result of the school board election held on May 21, 2019, all five seats on respondent’s board have been filled, rendering this issue academic.[3]

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




[1] Mr. Butler’s appeal challenging his removal from the board was dismissed (Appeal of Butler, 58 Ed Dept Rep, Decision No. 17,544).


[2] Other than petitioners’ assertions, there is no evidence in the record to indicate whether the board made such a decision, whether the board president publicly announced such a decision, or whether each trustee made a statement in support of such a decision.


[3] I take administrative notice of an appeal that has been commenced, pursuant to Education Law §310, on June 18, 2019, concerning the May 21, 2019 election.  That appeal, however, does not affect the determination herein because, specific outcome notwithstanding, petitioners herein challenge respondent’s alleged decision not to fill the vacant seat and respondent has since taken action to fill the vacant board position formerly held by Mr. Butler.