Appeal of MARY ELLEN KLOCK from action of the Board of Education of the Mount Pleasant Central School District regarding a board vacancy.

Decision No. 16,005

(December 21, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Warren H. Richmond, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mount Pleasant Central School District (“respondent”) to fill a vacancy on the board at the annual school district meeting.  The appeal must be dismissed. 

On December 18, 2008, respondent’s president resigned.  Her term did not expire until June 30, 2009.  Petitioner volunteered for appointment to the resulting vacancy.  However, respondent decided not to fill the vacancy by appointment or special election but, instead decided to wait until the May 2009 annual school district meeting.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 27, 2009.

Petitioner challenges respondent’s failure to immediately fill the vacancy on the board by appointment.  She asserts that New York State Education Law and district policy requires respondent either to appoint an individual or hold a special election to fill the vacancy.  For relief, petitioner seeks removal of the board members and an interim order appointing a community member to fill the vacancy pending a final determination of the appeal. 

Respondent asserts that petitioner’s request for removal of individual board members must be dismissed for failure to effect proper service.  Respondent also maintains that the Commissioner of Education lacks authority to make an appointment to fill the vacancy.  Further, respondent maintains that it acted on advice of counsel and that its actions were in all respects proper.

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Respondent has submitted an affidavit indicating that, on May 19, 2009, James Grieco was elected and sworn in to fill the board vacancy at issue in this appeal.

With respect to petitioner’s request for the removal of individual board members, the appeal must be dismissed for failure to join necessary parties.   A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Petitioner failed to name the board members in the caption and failed to personally serve them with a copy of the petition and notice of petition.  Accordingly her request for removal must be dismissed.

In view of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED

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