Decision No. 13,114

(February 24, 1994)

Raymond G. Kuntz, Esq., P.C., attorney for respondent

SOBOL, Commissioner.--Petitioner, a resident of the Arlington Central School District ("the district"), appeals from respondent board's appointment of Gary Veeder as head varsity crew coach for the 1993-94 school year. The appeal must be dismissed.

On July 27, 1993, respondent appointed Gary Veeder to the position of head varsity crew coach for the 1993-94 school year. Mr. Veeder is not a certified teacher. Ms. Elfriede Tillman, a tenured teacher in the district, who is certified in physics, earth science, chemistry, biology, health, math and general science, applied for the same coaching position. On September 20, 1993, petitioner sought reconsideration of respondent's decision to hire Mr. Veeder instead of Ms. Tillman. That request was denied on October 25, 1993. On November 2, 1993, petitioner again requested reconsideration of the issue by the board. That request was also denied. This appeal followed. On November 20, 1993, Mr. Veeder resigned his position with the district.

Petitioner alleges respondent violated the Commissioner's Regulations at 8 NYCRR 135.4(c)(7)(i) by hiring an uncertified individual when a certified teacher applied for the coaching position. Petitioner requests that I set aside respondent's action and direct respondent to hire another individual. Respondent contends that petitioner lacks standing to challenge respondent's employment decision, that the appeal is untimely and that the issue is now moot.

Before reaching the merits, I will address the procedural issues. Petitioner requests that Mr. Veeder's appointment be set aside and that respondent hire Ms. Tillman. Since a decision on the merits would involve the rights of Mr. Veeder, he is a necessary party to this proceeding and, therefore, should have been joined as a party (Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Kalinowski, 32 id. 476; Appeal of Healy, 29 id. 391). Because Mr. Veeder has not been joined as a party in this appeal, it must be dismissed.

Respondent also maintains that petitioner lacks standing to challenge an employment decision. Petitioner is a resident of the district. However, there is no claim that he was individually affected by the hiring decision. Neither one's status as a resident of a district nor as a parent of a student in the district automatically confers the capacity to seek review personnel actions of the board of education (Appeal of Reed, supra; Appeal of Pecorale, et al., 31 Ed Dept Rep 493; Appeal of Strober, 30 id. 4). Accordingly, petitioner lacks standing to bring this appeal, and his claims must be dismissed on that basis as well.

Regarding timeliness, an appeal to the Commissioner of Education under Education Law '310 must be instituted within 30 days from the making of the decision or the performance of the act complained of, although the Commissioner may excuse the failure to commence a timely appeal for good cause shown in the petition (8 NYCRR 275.16). In this instance, the alleged improper appointment occurred on July 27, 1993 and this appeal was not commenced until November 15, 1993, more than three months after the decision. Petitioner offers as an excuse that he sought the board's reconsideration on November 2, 1993. However, a request for reconsideration of a decision does not extend the time in which to bring an appeal (Appeal of Defense, 24 Ed Dept Rep 198; Appeal of Tripi, 21 id. 349). The appeal must therefore be dismissed as untimely.

With respect to mootness, it is well settled that the Commissioner of Education will decide only cases where an actual controversy exists and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Hartmann, 32 Ed Dept Rep 640; Appeal of Healy, supra; Appeal of Grund, 28 Ed Dept Rep 88). Mr. Veeder, the employee whose hiring is at issue here, has since resigned from his position. Accordingly, the appeal must be dismissed as moot as it pertains to the wrongful hiring. Even if this appeal were not procedurally defective, it would nevertheless be dismissed on the merits. State Education Department records reflect that Mr. Veeder was issued a temporary coaching license until February 1993. Therefore, to the extent that Mr. Veeder served in that capacity under a temporary license, there was no violation of 8 NYCRR 135.4(c)(7)(i).

THE APPEAL IS DISMISSED.

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