Appeal of ROBERT M. FOLSOM, from action of the Board of Education of the Alexandria Central School District and Dawn Robinson regarding the appointment of a coach.

Decision No. 13,876

(February 26, 1998)

James R. Sandner, Esq., New York State United Teachers, attorney for petitioner, Kevin H. Harren, Esq., of counsel.

O’Hara & O’Connell, attorneys for respondents, Brian J. Butler, Esq., of counsel.

MILLS., Commissioner.--Petitioner challenges the appointment of respondent Dawn Robinson (“Robinson”) by the Board of Education of the Alexandria Central School District (“respondent”) as the girls’ modified soccer coach for the 1997-98 season.  The appeal must be sustained in part.

Petitioner holds permanent New York State certification in physical education and has taught in respondent’s school district since the 1978-79 school year.  On or about August 12, 1997, petitioner applied for the position of girls’ modified soccer coach for the fall 1997 season.  Respondent’s athletic director recommended petitioner for the position to the superintendent, and the superintendent recommended petitioner to the board.  On August 19,1997, respondent rejected the superintendent’s recommendation and appointed Robinson to this position.  Robinson holds neither a valid New York State teaching certificate nor a temporary coaching license.  This appeal ensued.  Petitioner’s request for interim relief pending a determination on the merits was denied on October 22, 1997.

Petitioner contends that Robinson’s appointment violates Education Law §§3009(1) and 3010 and Commissioner’s regulations §80.18, which limit the employment of uncertified teachers, and §135.4(c)(7)(i)(c), which restricts the appointment of coaches for interscholastic athletic teams.  Petitioner requests an order annulling Robinson’s appointment and directing respondent to comply with the requirements of Commissioner’s regulations in appointing coaches.

Respondent contends that the appeal should be dismissed because it is untimely and because petitioner was not harmed by the action.  As to the merits, respondent argues that Education Law §§1709(16) and 1804 grant boards of education the power and duty to appoint athletic coaches.  It contends that after determining that petitioner was not qualified for the position, it appointed Robinson who, it argues, was qualified.

First, respondent argues that the appeal is untimely since the board made the coaching appointment on August 19, 1997 and petitioner commenced the appeal on September 29, 1997.  Although petitioner did not commence the appeal within 30 days of the appointment, a district’s employment of an uncertified teacher, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Kimball, 36 Ed Dept Rep 508; Appeal of Tropia, 32 id. 606).  I find, therefore that the appeal is not time-barred.

Respondent also argues that the appeal should be dismissed because petitioner was not harmed by Robinson’s appointment, implying that petitioner lacks standing to bring this appeal.  Indeed, an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Woodward, 36 Ed Dept Rep 445; Appeal of Craft, 36 id. 314).  It is true that petitioner had no entitlement to the position.  However, petitioner was aggrieved by respondent’s determination that he was not qualified for the position.  Once that determination was made, petitioner’s right to compete for the position was terminated.  Therefore, I will not dismiss the appeal for lack of standing.

Respondent recently informed my office that petitioner has served a demand for arbitration regarding this matter, thereby waiving his rights to any other remedies or forums, including this appeal.  However, the dispute submitted for arbitration was whether respondent violated a collective bargaining agreement by appointing Robinson.  Here, the issue is whether Robinson’s appointment violated the Education Law and Commissioner’s regulations, an issue which is appropriately before the Commissioner of Education (Appeal of Cracchiolo, 36 Ed Dept Rep 230; see also, Board of Educ., Commack Union Free School Dist. v. Ambach, 70 NY2d 501).

As to the merits, petitioner contends that respondent’s appointment of Robinson, who is not a certified teacher, violates Commissioner’s regulations because he, a certified teacher, was available for the position.  Respondent argues that Education Law §§1709(16) and 1804 vests in a board of education the power and duty to appoint coaches for interscholastic athletic teams.  It contends that it reviewed the recommendation of the superintendent and determined that petitioner was not qualified to coach the girls’ modified soccer team.  It then appointed Robinson, a candidate who it alleges was qualified.  Respondent maintains that Robinson is fully qualified as a temporary coach, that she held a temporary coaching license in the past, and that the district applied for a temporary coaching license for Robinson in August 1997.

Commissioner’s regulation §135.4(c)(7)(i)(c) restricts the appointment of coaches for interscholastic athletic teams.  Certified physical education teachers may coach any sport, and teachers certified in other areas with coaching qualifications and experience may coach, provided they complete certain first aid and course requirements.  Also, a board of education may employ uncertified persons with coaching qualifications and experience as temporary coaches of interschool sport teams, but only when certified physical education teachers or certified teachers with coaching qualifications and experience are not available.  However, uncertified persons must first obtain a temporary coaching license from the Commissioner (Appeal of Kimball, 36 Ed Dept Rep 508; Appeal of Cracchiolo, supra).

In this case, petitioner contends that he is qualified for the position.  He holds permanent New York State certification in physical education, has satisfied the interscholastic coaching requirements of Commissioner’s regulations §§135.5 and §§135.4(c)(7)(i)(c)(2)(i) and (ii), has been employed as a physical education teacher in respondent’s district since the 1978-79, and was recommended for the position by respondent’s athletic director and superintendent.  Respondent contends that petitioner was not qualified for the position, but provides no explanation for its determination.  Without more, I must conclude that respondent’s determination was arbitrary and capricious.  Under the regulations, if petitioner, a certified teacher, had not been disqualified, respondent could not have appointed Robinson, an uncertified individual.  Such a result – the appointment of an uncertified individual when a certified physical education teacher or a qualified certified teacher is available – is exactly what Commissioner’s regulations prohibit.  While §§1709 and 1804 of the Education Law, confer broad employment powers on a board of education of a central school district, they do not grant such boards the power to make hiring decisions which are inconsistent with Commissioner’s regulations.

Petitioner also contends, and I concur, that Robinson’s appointment violates §80.18 of the Commissioner’s regulations, which provides that no uncertified teacher may be employed by a board of education except under specified conditions not present in this instance (Appeal of Kenna, 29 Ed Dept Rep 14) and Education Law §§3009(1) and 3010, which constitute a prohibition against paying unqualified teachers from school moneys (Meliti v. Nyquist, 41 NY2d 183; Appeal of Longshore, 32 Ed Dept Rep 311).

Accordingly, I conclude that respondent violated the Education Law and Commissioner’s regulations by appointing Robinson as 1997-98 girls’ modified soccer coach.  Since the team’s season has ended, it would serve no purpose for me to order respondent to retroactively rescind its appointment.  However, I do not condone respondent’s actions in this matter and I caution respondent to strictly adhere to such requirements in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that in the future respondent comply with the provisions of the Education law and Commissioner’s regulations with respect to the appointment of coaches.

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