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Decision No. 18,155

Appeal of CARMEN AYALA from action of the Board of Education of the Hempstead Union Free School District, Lamont Johnson, Victor Pratt, Patricia Spleen, Patricia McNeill, and Randy Stith as trustees regarding her removal from office.

Decision No. 18,155

(July 19, 2022)

Douglas L. Thomas & Associates, attorneys for petitioner, Douglas L. Thomas, Esq., of counsel

Milber, Makris, Plousadis & Seiden, LLP, attorneys for respondent, Stuart P. Besen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Hempstead Union Free School District (“respondent” or “board”) and trustees Lamont Johnson, Victor Pratt, Patricia Spleen, Patricia McNeill, and Randy Stith to remove her as a board member on the ground of official misconduct.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Petitioner was elected to a three-year term on the board from July 1, 2018 through June 30, 2021.  On March 23, 2021, the board brought a charge of official misconduct against petitioner pursuant to Education Law § 1709 (18).  The charge alleged that petitioner disclosed confidential information from executive session in violation of General Municipal Law § 805-a (1) (b) and district policy.

The board convened a hearing, presided over by a hearing officer, in April 2021.  On May 14, 2021, the hearing officer issued a report sustaining the charge against petitioner and recommending her removal from the board.  That same day, respondent voted, 3-2, to remove petitioner from the board.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 30, 2021.

Petitioner contends, among other allegations, that she did not engage in any wrongdoing and that the board improperly voted to remove her from office for reasons other than official misconduct.  Petitioner seeks reversal of the board’s decision to remove her, restoration to her elected position, and the elimination of any disability to run for office.  Further, she seeks an order unseating the trustee who was appointed to replace her and annulling all board decisions in which this trustee’s vote was the deciding vote.

Respondent denies petitioner’s contentions and asserts that the appeal must be dismissed for, among other reasons, improper service, deficient notice, as moot, and as untimely.  Respondent further contends that the evidence adduced at the hearing demonstrated petitioner’s guilt.

The appeal must be dismissed as moot with regard to most of the relief sought by petitioner.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

The term to which petitioner was elected ended on June 30, 2021, just days before she commenced the instant appeal.  Therefore, petitioner’s request for reinstatement is moot.  Moreover, as of May 14, 2022, petitioner is no longer “ineligible to appointment or election to any district office” (Education Law § 2103 [2]; compare Appeal of Williams, 61 Ed Dept Rep, Decision No. 18,116).  Thus, there is no barrier for petitioner to be appointed, or seek election, to a board position.  As such, no meaningful relief can be granted at this juncture (Appeal of Vasquez, 61 Ed Dept, Decision No. 18,049; Appeal of Najm, 59 id., Decision No. 17,853).

The only portion of petitioner’s appeal that remains live is her request to annul all board decisions in which the individual who was appointed to the unexpired portion of her board position cast the deciding vote.  However, the Commissioner has consistently held that individuals appointed to the unexpired term of a removed board member serve as de facto members of the board up and until the Commissioner restores the removed board member to the position (see Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263; Appeal of Reed, 55 id., 16,871; Appeal of Roy, 31 id. 497, Decision No. 12,713).  As such, even assuming that petitioner was improperly removed from the board, no board action would be invalidated as a result thereof.

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