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Decision No. 13,182

Appeal of EDWARD L. PIERCE, JR., from action of the Board of Education of the Ichabod Crane Central School District and Anthony Farinacci with regard to appointment of a basketball coach.

Decision No. 13,182

(May 12, 1994)

Christopher P. Rutnik, Esq., attorney for petitioner

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent board, Jeffrey D. Honeywell, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the Ichabod Crane Central School District ("respondent board") to appoint Anthony Farinacci ("respondent Farinacci") as the varsity boys basketball coach for the 1993-94 school year. The appeal must be dismissed.

Petitioner was the varsity boys basketball coach for two years prior to the 1993-94 school year. After a search for a candidate for that position for the 1993-94 school year, respondent board appointed respondent Farinacci on October 19, 1993. At that time, respondent board incorrectly believed that Mr. Farinacci possessed a temporary coaching license issued pursuant to 8 NYCRR 135.4(c)(7)(i)(c)(3). On November 24, 1993, respondent board learned for the first time that Mr. Farinacci did not have a temporary coaching license. Because of a misunderstanding between respondents, no application for a temporary license had been submitted to the State Education Department. On November 24, 1993, Mr. Farinacci submitted his application for a temporary license. Petitioner commenced this appeal on December 27, 1993. In his appeal, petitioner requested a stay of the issuance of a temporary coaching license to Mr. Farinacci. That request was denied on January 20, 1994.

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 rescind the board's appointment of Mr. Farinacci and appoint petitioner instead. Petitioner also seeks any back pay and benefits lost as a consequence of the board's action.

Before reviewing the merits of this appeal, I will address a procedural issue. Section 275.16 of the Commissioner's regulations requires that an appeal be brought within thirty days after the making of the decision or the performance of the act complained of. This regulation further provides that the Commissioner may excuse a delay in commencing an appeal for good cause shown (8 NYCRR 275.16). Petitioner contests respondent board's appointment of Mr. Farinacci as the varsity boys basketball coach on October 19, 1993 but did not commence this appeal until December 27, 1993 when he served a copy of the notice of petition and petition upon respondent board. Petitioner did not serve respondent Farinacci until January 12, 1994. Petitioner contends that his delay should be excused because he did not understand the appeal procedure. Except in unusual circumstances, however, ignorance of the appeal process is not a reason to excuse a delay in commencing an appeal (Appeal of Pitney Bowes, Inc., 31 Ed Dept Rep 290; Appeal of Casid, 30 id. 332). Based upon my review of the record before me, I find no unusual circumstances in this case. Accordingly, this appeal is dismissed as untimely.

The appeal must also be dismissed on the merits. State Education Department records reflect that on January 14, 1994 the Office of Teacher Certification issued Mr. Farinacci a temporary coaching license, effective retroactively to October 1993. Therefore, to the extent that Mr. Farinacci served as varsity basketball coach under a temporary license, there was no violation of 8 NYCRR 135.4(c)(7)(i) (Appeal of Chrisfield, 33 Ed Dept Rep , Decision No. 13114, dated February 24, 1993).

To the extent petitioner seeks to challenge the issuance of a temporary coaching license by the Office of Teacher Certification, it is well settled that Education Law '310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Appeal of Board of Education of the City School District of the City of Rome, 23 Ed Dept Rep 382, aff'd sub nom.Board of Ed., Rome CSD v. Ambach and Polizzi, 118 AD2d 932; Application of Board of Education of the City School District of the City of New York, 19 Ed Dept Rep 1; Appeal of Baker, et al., 11 id. 125; Appeal of Vezzani, et ux., 11 id. 35; Appeal of Bowen, et al., 1 id. 534, aff'd sub nom.Bowen, et al. v. Allen, 29 Misc 2d 35, rev'd 17 AD2d 12, aff'd 13 NY2d 663). Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

THE APPEAL IS DISMISSED.

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