Appeal of DONALD CHICHESTER from action of the Board of Education of the Wayland-Cohocton Central School District and Steve Wager regarding the appointment of a coach.

Decision No. 14,286

(December 24, 1999)

Linsner, Sessler & Dys, attorneys for petitioner, Steven D. Sessler, Esq., of counsel

David W. Lippitt, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner challenges the appointment of Steve Wager ("respondent Wager" or "Wager") by the Board of Education of the Wayland-Cohocton Central School District ("respondent board") as boys’ varsity basketball coach for the 1998-99 season. The appeal must be dismissed.

In June 1998, the district posted a job vacancy for a part-time physical education teacher. An interview committee comprised of various school administrators, teachers and board of education members interviewed four candidates for the position. The committee recommended two finalists to the superintendent of schools, one of whom was respondent Wager. After interviewing both candidates and reviewing their applications, the superintendent recommended that respondent board appoint Wager. On August 3, 1998, the board appointed Wager to the position, effective September 1, 1998.

Petitioner has been employed as a teacher at Wayland-Cohocton since 1978. From the 1979-80 school year through the 1983-84 school year, petitioner was head coach of the district’s high school boys’ varsity basketball team. Apparently, petitioner was not re-appointed to that position for the 1984-85 school year for reasons that included his poor relationship with the basketball players and their parents. Commencing with the 1987-88 school year, petitioner resumed coaching the team and was apparently routinely re-appointed to the position each year through the 1997-98 school year. During the 1997-98 school year, the superintendent learned that the collective bargaining agreement between the district and its teachers’ association required the district to post all extracurricular positions for which additional salary was paid, including coaching positions. As a result, on August 26, 1998, the district posted a notice of vacancies for a number of winter coaching positions, including boys’ varsity basketball. Only petitioner and respondent Wager applied for the latter position. Terry Brown, the district’s Athletic Director, recommended Wager to the superintendent for the position. In doing so, Brown cited several problems he had had with petitioner the year before, including his failure to follow directions and his treatment of students.

Respondent board was scheduled to consider coaching appointments for the winter sports teams at its October 13, 1998 board meeting. Apparently, the issue of whether petitioner should be re-appointed as the basketball coach sparked considerable controversy in the district. During the "community reaction" portion of the September 28, 1998 school board meeting, a number of people addressed the issue of petitioner’s possible re-appointment as basketball coach, some favoring and some opposing it. During the executive session that followed, the superintendent informed respondent board that he intended to recommend petitioner for the coaching position. Several board members, citing complaints from students and parents that, among other things, petitioner was sometimes unduly harsh on his players, expressed concern about having petitioner continue coaching.

In the interim, before the scheduled vote on the coaching positions, the superintendent tried to broker a compromise arrangement to appoint petitioner as coach and Wager as assistant coach of the boys’ varsity basketball team. At the respondent board’s October 13, 1998 meeting, the superintendent submitted a list of recommendations for a number of coaching positions that included petitioner as boys’ varsity basketball coach and respondent Wager in the combined roles of coach of the modified eighth grade boys' basketball team and assistant coach of the varsity basketball team. Before respondent board voted, a number of community members spoke about petitioner’s possible re-appointment as coach, some in favor and some in opposition.

With a single motion, respondent board approved the superintendent’s recommendations, with the exception of the varsity basketball coaching position. The board then voted unanimously to appoint Wager as boys’ varsity basketball coach and to rescind his appointment to the combined coaching positions. This appeal ensued.

Petitioner contends that various school district officials and board of education members improperly engaged in a concerted effort to hire respondent Wager for the physical education teacher position for the express purpose of appointing him as varsity basketball coach. In support of this theory, petitioner alleges, among other things, that Wager was provided with the interview questions in advance of the interview, was coached through the interview process by the district’s athletic director, and that two members of the board of education joined the hiring committee to assist Wager in getting the job. Petitioner contends that he is entitled to the coaching appointment because respondent Wager withdrew his application before any appointment was made, leaving petitioner as the only qualified candidate. Petitioner also claims that he is entitled to the coaching position because he was the only candidate recommended for the position by a district administrator. Finally, petitioner contends that respondent board abused its discretion by appointing respondent Wager to the position because petitioner is more experienced and qualified than Wager. For relief, petitioner requests that he be appointed head coach of the boys’ varsity basketball team for the 1998-99 academic year.

Respondents assert that the petition is untimely to the extent that petitioner challenges respondent board’s decision to hire Wager as a part-time physical education instructor. In addition, respondents contend that respondent board’s decision to appoint Wager to the coaching position was proper. By letter dated December 30, 1998, respondents object to petitioner’s reply. Respondents also seek permission to amend their answer to add the affirmative defense that the appeal is barred because petitioner filed a grievance through a collective bargaining agreement seeking the same relief.

By letter dated January 6, 1999, petitioner concedes that the issue of respondent board’s decision to hire respondent Wager as a part-time physical education teacher is time barred, and asserts that petitioner challenges only respondent board’s decision to appoint Wager to the coaching position. Petitioner acknowledges that he has pursued "collateral remedies through other means" but contends that the appeal is not barred because the Commissioner has authority to provide relief that is not available through arbitration.

Preliminarily, I must address a number of procedural matters. With respect to respondents’ request to file an amended answer, the Commissioner may permit or require the service and filing of additional pleadings upon such terms and conditions as he may specify (8 NYCRR "275.3). Because petitioner filed his grievance after respondents filed their answer, I will grant respondents’ application to file an amended answer.

With respect to petitioner's reply, I note that the purpose of a reply is to respond to procedural defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (8 NYCRR "" 275.3 and 275.14; Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066; Appeal of Foshee, 38 id. 346, Decision No. 14,051). Accordingly, I will not consider those portions of petitioner’s reply that constitute new allegations or evidence which is not responsive to new material or affirmative defenses set forth in respondents’ answer.

Respondents maintain that his appeal is barred since petitioner filed a grievance. A school employee who elects to submit an issue for resolution through another grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that his/her union breached its duty of fair representation (Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Tos, 37 Ed Dept Rep 47; Decision No. 13,799). The record reflects that shortly after commencing this appeal, petitioner filed a grievance through his collective bargaining agreement seeking the same relief he seeks here; reappointment as boys’ varsity basketball coach. Petitioner pursued that grievance as far as permitted under the collective bargaining agreement. That petitioner seeks the same relief here does not automatically bar his appeal. Rather, the petition is barred only to the extent that petitioner attempts to raise the same claims that were the subject of his grievance (see, Appeal of Czajkowski, 34 Ed Dept Rep 589, Decision No. 13,418).

On the record before me, it appears that petitioner’s grievance alleges violations of various provisions of the collective bargaining agreement. Although petitioner does not clearly articulate the legal theories upon which he seeks relief here, petitioner does not appear to rely on any provision of his collective bargaining agreement. To the extent that petitioner alleges that respondent board’s appointment of Wager to the coaching position violated the Education Law and Commissioner’s regulations, the appeal is properly before me (Appeal of Folsom, 37 Ed Dept Rep 347, Decision No. 13,876). Because the record does not establish that petitioner is pursuing the same claims that were the subject of his grievance, I do not find this appeal barred by petitioner’s grievance.

The appeal must, however, be dismissed as moot. The Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101). Petitioner challenges respondent board’s decision to appoint respondent Wager as boys’ varsity basketball coach for the 1998-99 season, and seeks appointment to the position for relief. However, because the 1998-99 basketball season has ended, the remedy sought by petitioner is no longer available, and the appeal is moot.

Finally, I also note that respondents correctly assert that the petition is time barred to the extent it challenges respondent board's decision to hire respondent Wager as a part-time physical education teacher. Because petitioner concedes this point, and disavows seeking such relief, I need not address this procedural claim.

Even if the appeal were not dismissed on procedural gounds, I would dismiss it on the merits. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establish the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Morris, et al., supra). Petitioner has failed to establish that respondent board’s decision to appoint respondent Wager as the coach of the boys’ varsity basketball team was in any respect improper. Petitioner’s contention that respondent Wager withdrew his application for the coaching position, leaving petitioner as the only applicant, is not supported by the record. Respondent Wager explains that although he indicated to the superintendent that he was willing to withdraw his application if it were in the best interest of the district, he did not, in fact, withdraw his application. Moreover, even if Wager had done so, petitioner has failed to establish that respondent board would have been in any way obligated to appoint him to the coaching position. To the contrary, respondent could have discontinued its basketball program or re-advertised the position rather than reappointment petitioner (Appeal of Hartmann, 32 Ed Dept Rep 640, Decision No. 12,941).

Nor has petitioner cited any legal authority to support his contention that he is entitled to the coaching position because he was recommended for the position by the superintendent. Although the superintendent of schools may

make recommendations to the board of education concerning appointments, the board of education is vested with broad authority to make such appointments (Education Law "1709(16); Appeal of Folsom, supra), and is not obligated to accept such recommendations.

Petitioner has not established that he was more qualified for the position than respondent Wager. Both Wager and petitioner, as physical education teachers, were eligible to coach the basketball team pursuant to the Commissioner’s regulations (8 NYCRR "135.4[c][7][i][c]). In contrast to Appeal of Feiss, 37 Ed Dept Rep 339, Decision No. 13,874, here, respondent board did not find petitioner unqualified to coach. Rather, faced with two eligible candidates, respondent board simply chose respondent Wager over petitioner. In light of the fact that the district received complaints from several parents about petitioner’s coaching performance, including allegations that petitioner was unduly harsh on his players, I cannot conclude that respondent board’s decision to appoint Wager, who also had considerable coaching experience, was arbitrary or capricious.

In short, while I am sympathetic to petitioner’s desire to continue coaching, on the record before me, I cannot conclude that respondent board’s actions were in any respect improper.

THE APPEAL IS DISMISSED.

END OF FILE.

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