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Decision No. 17,718

Application of the BOARD OF EDUCATION OF THE BEEKMANTOWN CENTRAL SCHOOL DISTRICT for the removal of Andrew D. Brockway as a board member.

Decision No. 17,718

(August 5, 2019)

             Girvin & Ferlazzo, P.C., attorneys for petitioner, James E. Girvin, Esq., of counsel

ELIA., Commissioner.--Petitioner, the Board of Education of the Beekmantown Central School District (“petitioner” or “board”), seeks the removal of Andrew D. Brockway (“respondent”) as a member of the board.  The application must be denied.

Given the disposition of this application, a detailed recitation of the facts is unnecessary.  In its application, petitioner alleges that respondent made inappropriate public and private statements to other board members; engaged in menacing, harassing, antagonistic, threatening, and offensive behavior toward other board members during a board meeting on January 8, 2019; and made certain false statements to the board and to the New York State Education Department.  Petitioner also contends that, prior to the January 8, 2019 board meeting, the board reviewed and investigated complaints against respondent concerning alleged bullying, harassment, and creation of a hostile environment.  Petitioner seeks respondent’s removal from the board for the above-described behavior.

Respondent contends that the appeal must be dismissed as moot because he resigned from the board on January 28, 2019, prior to service of the instant application.  Respondent further contends that the allegations set forth in the petition do not rise to the level of conduct warranting his removal from the board.

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).

Petitioner’s sole request for relief is that respondent be removed from the board.  On January 30, 2019, during the board’s public session, respondent declared that he was resigning from the board and submitted his resignation to the district clerk.  Thereafter, an attorney representing respondent submitted correspondence confirming that respondent had resigned his position on the board.  Accordingly, because respondent is no longer a member of the board, petitioner’s application to remove him is moot and must be denied (Appeal of Parrino, 53 Ed Dept Rep, Decision No. 16,547; Application of the Board of Education of the Lake George Central School District, 52 id., Decision No. 16,467).

Petitioner argues that the matter is not moot because petitioner may seek to run for a board position again or may seek to rescind his resignation.  The Court of Appeals has held that an otherwise moot matter may be justiciable where there is:  (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues (Hearst Corp. v. Clyne, 50 NY2d 707) (emphasis added); see also Russman v. Board of Education of the Enlarged City School District of the City of Watervliet, 260 F3d 114).  Here, petitioner has not met its burden of proving that the instant scenario fits within this exception to the mootness doctrine (Appeal of the Board of Education of the Greenwood Lake Union Free School District, 58 Ed Dept Rep, Decision No. 17,549; Appeal of C.H., 52 id., Decision No. 16,465).  Petitioner merely speculates that the matter may reoccur, which does not demonstrate a likelihood of repetition.  Moreover, petitioner has not explained how resolution of this dispute would address a matter of statewide public interest, nor does it identify a novel issue of public concern (Appeal of the Board of Education of the Greenwood Lake Union Free School District, 58 Ed Dept Rep, Decision No. 17,549).

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