Decision No. 13,639

(July 26, 1996)

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hornell City School District ("board") to rehire him as junior varsity football assistant coach for the 1995 season. The appeal must be dismissed.

Petitioner is a certified teacher in respondent district. He has coached football for at least the past 12 seasons, most recently as junior varsity football assistant coach. It appears that at least as early as the 1993 season, the varsity head coach had become dissatisfied with petitioner's coaching abilities, and at the end of the 1993 season, asked the director of athletics not to rehire petitioner. Petitioner was, however, rehired for the 1994 season. At the end of that season, the head coach again requested that petitioner not be rehired.

In 1995, petitioner again applied for the position as junior varsity assistant coach, but at the board meeting of July 26, 1995, the board instead hired respondent Richard Scavo for that position. Mr. Scavo is not a certified teacher, but was eligible for and actually received a temporary license pursuant to 8 NYCRR '135.4(c)(7)(i)(c)(3). That provision allows a person who lacks certification, but who has coaching qualifications and experience satisfactory to a board of education, to be appointed as a temporary coach " . . . when certified teachers with coaching qualifications and experience are not available, upon the issuance by the commissioner of a temporary coaching license."

The other respondents in this matter, Mr. Buish, Ms. Thompson, and Ms. Ellis, were also hired as temporary coaches at the same board meeting. Like Mr. Scavo, they lack teaching certification. However, in their cases, no other persons applied for the positions to which they were appointed, and petitioner has no standing to challenge their appointments. In addition, Ms. Thompson was only served with the petition by mail, which does not comply with the regulations for the prosecution of an appeal (8 NYCRR '275.8[a]). The petition is therefore dismissed as to those three respondents.

The board justifies its action in rejecting petitioner based upon the dissatisfaction of head football coach Gene Mastin with petitioner's coaching abilities. Attached to the answer is a memorandum dated September 11, 1995, from Mr. Mastin to the director of athletics which outlines what he considers to be serious deficiencies in petitioner's coaching abilities, despite his 12 years with the district. Petitioner's reply does not confront those issues directly, but merely claims that he " . . . was almost immediately hired by Alfred University, a four-year college, in Alfred, New York." In a further affidavit, however, respondent points out that just before the 1995 football season commenced, two assistant Alfred University football coaches resigned in order to accept recently-vacated positions at State University of New York College of Technology at Alfred. Respondent concludes that Alfred University was therefore in "desperate need" of two assistant football coaches immediately.

This appeal must be dismissed as moot. It is well settled that the Commissioner will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Berheide, 35 Ed Dept Rep 412; Appeal of Capeless, 35 id. 454; Appeal of Healy, 34 id. 611; Appeal of Lanoir, 34 id. 562; Appeal of Hartmann, 32 id. 640; Appeal of Heinz, 31 id. 326). In this appeal, the 1995 football season has long ago ended. In addition, petitioner took a similar coaching position at Alfred University during the 1995 season, which would have precluded him from acting simultaneously as the junior varsity assistant coach at Hornell. In any event, petitioner has not made any formal claim for unpaid salary.

In view of this disposition, I will not consider the other claims and allegations of the parties.

THE APPEAL IS DISMISSED.

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