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Decision No. 18,279

Appeal of ERIC BUZZETTO, TINA BUZZETTO, MATTHEW DEROSE, JEFFREY CARPENTER, NICOLE GOULD, JONATHAN GOULD, MICHAEL WHALEN, and KATHLEEN WHALEN from action of the Board of Education of the North Salem Central School District regarding the implementation of a board resolution and application for the removal of certain trustees.

Decision No. 18,279

(May 23, 2023)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the alleged failure of the Board of Education of the North Salem Central School District (“respondent” or “board”) to hire a school resource officer (“SRO”).  They also seek the removal from office of board president Andrew Brown (the “board president”) and other, unspecified board members (collectively, “respondents”) in connection therewith.  The appeal must be dismissed and the application denied.

The district’s 2022-2023 budget, which passed on May 17, 2022, included funding to employ an SRO to serve the district’s elementary, middle, and high schools.  On June 15, 2022, the board adopted a resolution authorizing the superintendent to contract with the Westchester County Police for a second, permanent SRO at respondent’s elementary school starting September 1, 2022.

According to an affidavit from the board president, “[b]etween June 16, 2022 and November 2022 … there were internal discussions as to where the money would come from to fund [the] second SRO.”  On November 16, 2022, the board rejected a resolution to “authorize[] the transfer of [funds] from [the] unassigned fund balance to the [SRO] budget code … to cover the cost of a second [SRO].” 

Following commencement of this appeal, on December 14, 2022,[1] the board announced that it had secured a grant to fund the second SRO position. Thereafter, on January 4, 2023, the board approved a resolution “to allocate [funds] to cover the cost of the second [SRO] through [the end of the 2022-2023 school year].”  This appeal ensued. 

Petitioners assert that respondents engaged in willful misconduct and neglect of duty by failing to expeditiously hire a second SRO.  Petitioners request that I order respondent to “abide by the June 15” resolution and that I remove the board president, and any other board member whose removal I deem warranted, from office.

Respondents assert that the appeal must be dismissed for lack of standing and as moot.  They further argue that the application for removal should be denied for failure to join necessary parties.  On the merits, respondents assert that they acted in good faith concerning the hiring of a second SRO.

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 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).  

Petitioners’ appeal centers on respondents’ alleged lack of diligence in hiring a second SRO for its elementary school.  As indicated above, however, respondent has located, and dedicated, funds for that purpose.  Indeed, the board president avers that the SRO “will be deployed to the [d]istrict as soon as the [c]ounty makes him/her available.”  Therefore, no live controversy remains, and the appeal must be dismissed as moot.

The application seeking the board president’s removal must be denied.[2]  The Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).

To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).  The record indicates that the board did not immediately hire a second SRO in June 2022 due to the need to identify a funding stream for the position.  In an affidavit, the board president explains that “the [b]oard determined that it would not be prudent to draw from [its] [u]nassigned [f]und [b]alance to pay for a contract that was not contemplated at the time the budget was prepared … the district’s budget is tight and does not allow for significant unbudgeted expenditures.”  Petitioners have not proven that the board president engaged in any willful violation of the Education Law, and their application for his removal must therefore be denied.[3]

In light of this disposition, it is unnecessary to address the parties’ remaining contentions. 





[1] Indeed, it appears that this announcement was made just hours after service of the petition on the district clerk and board president.


[2] To the extent petitioners seek the removal of board members other than the board president, this application must be dismissed for insufficient notice, including failing to name the individuals sought to be removed in the caption of the petition (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756). 


[3] I hereby certify, as requested by respondents, that each member of the board acted in good with respect to the exercise of their powers and performance of their duties (Education Law § 3811 [1]).