Appeal and Application of DAVID E. MCGOVERN, on behalf of his child, from action of the Board of Education of the Locust Valley Central School District regarding a board policy.

Decision No. 18,075

(January 26, 2022)

Ingerman Smith, L.L.P, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Locust Valley Central School District (“respondent”) with regard to its reopening plan for the 2021-2022 school year and seeks the removal of board members Brian T. Nolan, Margaret Marchand, and Lauren Themis (collectively, “board members”).  The appeal must be dismissed and the application must be denied.

On August 17, 2021, respondent approved a reopening plan that did not require masks to be worn inside school buildings.  On August 27, 2021, the New York State Commissioner of Health issued a determination requiring masks to be worn in schools.[1]  At a regular meeting on August 30, 2021, respondent considered revising its reopening plan to require masks, but the motion to revise the reopening plan did not pass.  The next day, respondent convened a special meeting and modified its reopening plan to require masks.  This appeal and application ensued.[2]

Petitioner argues that respondent’s decision “to ignore the State Mask Mandate” must be overturned.  He also seeks the removal of the board members. 

Respondent argues that the appeal must be dismissed as moot; for lack of standing; for improper verification; and, with respect to the removal application, for lack of the notice required by 8 NYCRR 277.1 (b).

First, I must address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).  Here, petitioner seeks review of respondent’s August 17, 2021 decision to not require masking in schools.  However, respondent adopted a revised reopening policy that required masks on August 31, 2021—the same day that petitioner commenced the instant appeal.  Therefore, no live controversy exists, and the appeal must be dismissed.

Petitioner’s application for removal must be denied for failure to join necessary parties.  A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  The rights of the board members whom petitioner seeks to have removed would be adversely affected by a determination in favor of petitioner.  Petitioner has failed to name the board members in the caption of the appeal and there is no evidence that they were served with a copy of the notice of petition or petition.  As such, the application for removal must be denied.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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