Appeal of EDWARD LILLY from action of the Board of Education of the Lewiston-Porter Central School District, David Schaubert, Louis Palmeri, Robert Laub, James Mehzir, board members, and F. Warren Kahn, school attorney, regarding a removal proceeding.

Decision No. 15,692

(December 4, 2007)

Hodgson Russ, LLP, attorneys for respondents, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to prevent the Board of Education of the Lewiston-Porter Central School District (“board”) from conducting a hearing to remove him from the board pursuant to Education Law §1709(18).  The appeal must be dismissed.

On May 16, 2006, petitioner was elected to a three year term on the board.  On June 19, 2007, the board voted a charge of misconduct against petitioner, stating that he “willfully or by neglect failed to complete the minimum, approved training on the financial oversight, accountability and fiduciary responsibilities of a school board member as mandated by New York State Education Law Section 2102-a and Board Policy 2331.”  At the same time, the board voted to conduct a hearing pursuant to Education Law §1709(18) on Saturday, June 30, 2007.

Petitioner commenced this appeal on June 27, 2007 and sought an order staying the scheduled hearing.  Petitioner’s request for interim relief was denied on June 29, 2007.  Thereafter, the board conducted the hearing as scheduled and voted to remove petitioner from the board.

On July 30, 2007, petitioner commenced a second appeal challenging his removal, and seeking reinstatement to the board.  The commencement of that second appeal supersedes the instant appeal and renders it 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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Any relief sought by petitioner in this appeal could be granted in the second appeal, if appropriate.

Respondents have requested a certificate of good faith pursuant to Education Law §3811(1).  It is appropriate to issue such certification unless it is established on the record that the requesting respondents acted in bad faith (Application of Berman, 46 Ed Dept Rep ___, Decision No. 15,537; Application of Mazile, 45 id. 378, Decision No. 15,356).  On the record before me, I find that respondents are entitled to receive a certificate of good faith for the purpose of this appeal.

THE APPEAL IS DISMISSED.

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