Decision No. 12,941

(June 8, 1993)

Bernard F. Ashe, Esq., attorney for petitioner, Gerard John DeWolf, Esq., of counsel

Scolaro, Shulman, Cohen, Lawler & Burstein, P.C., attorneys for respondents, Henry F.

Sobota, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a full-time certified teacher in the Mohawk Central School District ("district"), appeals from respondent board's appointment of respondent Smith as varsity football coach for the 1992-93 school year. The appeal must be dismissed.

Petitioner is a certified teacher in biology, chemistry and general science. He is a tenured science teacher in the district as well. Between September 1986 and June 1992, respondent board annually appointed petitioner to the position of varsity football coach. On or about February 10, 1992, respondent board received a petition signed by parents and others asking that petitioner and the assistant football coach not be reappointed. In the summer of 1992, petitioner sought reappointment for the coaching position. His application was submitted to respondent board along with a favorable recommendation by the superintendent. Despite his prior service and the superintendent's recommendation, the board voted on July 13, 1992 not to reappoint him for the upcoming season. Subsequent to that meeting, the district advertised the position and received five applications, including petitioner's. The only applicant other than petitioner who was certified to teach, later withdrew. At its meeting on August 10, 1992, respondent board appointed respondent Smith as its varsity football coach even though he was not a certified teacher. Petitioner commenced this appeal on September 9, 1992.

Petitioner contends that respondent board violated 8 NYCRR '135.4(c)(7)(i)(c) by appointing an individual not certified to teach when a certified teacher with coaching qualifications and experience was available. Petitioner asks that I retroactively rescind the board's appointment of respondent Smith and appoint petitioner instead. Petitioner also seeks any back pay and benefits lost as a consequence of the employers' actions.

Respondents argue that as of August 10, 1992, petitioner was not "available" and lacked satisfactory coaching "experience" for purposes of 8 NYCRR '135.4(c)(7)(i)(c)(3), because he was rejected on July 13, 1992 for "cause", i.e. based upon the public's demand for the appointment of a new coach. Respondents also contend that the board's decision not to rehire petitioner to the coach's position was based, in part, upon one board member's concern that petitioner's coaching duties interfered with his teaching, as reflected by the Regents Examination scores earned by the students in his chemistry class. Respondents also raise several procedural defenses and argue that the case is moot since the football season has ended.

Regarding the question of mootness, it is well settled that the Commissioner of Education will decide only cases where an actual controversy continues to exist, and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Healy, 29 Ed Dept Rep 391; Appeal of Grund, 28 id. 88; Appeal of Rondot, 27 id. 143; Matter of Moser, 23 id. 153, annulled, sub nom; Weaver v Ambach [Supreme Court, Albany County, Special Term, Torraca, J., April 9, 1984, n.o.r., as summarized at 23 Ed Dept Rep 153], appeal dismissed, 107 AD2d 926 [Third Dept, 1985]). In this instance, I take administrative notice that the 1992-93 football season has ended. Because it is not evident that the regulation in question will typically evade review, the appeal must be dismissed as moot as it pertains to petitioner's request that the board's appointment of respondent Smith be retroactively rescinded and that petitioner be appointed as varsity football coach for the 1992-93 school year (See, Weaver v Ambach, supra at 927).

With regard to petitioner's claim for back pay, however, the matter is not moot. In appeals to the Commissioner, the petitioner bears the burden to establish a clear legal right to the relief requested (Appeal of Keller, 32 Ed Dept Rep 47; Appeal of Veterans Transportation Co. Inc., 26 id. 163; Matter of Rich, 22 id. 433; Matter of Zimmer, 20 id. 657). Although it is undisputed that petitioner was the only remaining certified applicant at the time of the August 10, 1992 vote, petitioner has not established a clear right to the position. Commissioner's regulations permit persons not certified to teach, who have coaching qualifications and experience satisfactory to the board, to be employed as temporary coaches of interschool sports teams, only when certified teachers with coaching qualifications and experience are not available (8 NYCRR '135.4[c][7][i][c][3]). In such cases, the regulations require the issuance of a temporary coaching license by the State Education Department based upon the school superintendent's certification that a certified teacher with coaching qualifications and experience was unavailable to fill the position. On October 13, 1992, respondent board's president, and not the superintendent, submitted an application to the Department to obtain a temporary coaching license for respondent Smith. Respondent's application for a temporary license was thus denied on November 24, 1992, for failure to provide the requisite superintendent's certification. Since the board could have either discontinued its varsity football program altogether or re-advertised the position rather than appointing petitioner once its application for temporary licensure of respondent Smith was denied, petitioner has not demonstrated a clear legal right to backpay.

Although the appeal must be dismissed, and the record does not indicate whether respondent Smith actually assumed the position of varsity football coach, it is undisputed that the State Education Department never issued a temporary license. Consequently, the board lacked authority to appoint respondent Smith as varsity football coach on August 10, 1992. In the event respondent board, nonetheless, allowed respondent Smith to serve in that capacity, such action violated 8 NYCRR '135.4(c)(7)(i). The board is, therefore, reminded of its obligation and that it subjects itself to removal proceedings pursuant to Education Law '306 for wilfully disobeying the Commissioner's regulations in the event it fails to comply with 8 NYCRR '135.4(c)(7)(i) in appointing interschool athletic coaches.

THE APPEAL IS DISMISSED.

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