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Decision No. 13,787

Appeal of DAVID KIMBALL from action of the Board of Education of the Canastota Central School District and Vincent Salamone regarding the appointment of a coach.

Decision No. 13,787

(June 29, 1997)

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

Hogan & Sarzynski, LLP, attorneys for respondents, John Hogan, Esq., of counsel

CATE, Acting Commissioner.--Petitioner challenges the appointment of respondent Salamone by respondent board as the girls' varsity basketball coach for the 1996-97 season. The appeal must be sustained in part.

Petitioner is a resident of respondent board's school district ("district") and the father of a member of the district's 1996-97 girls' varsity basketball team. On November 12, 1996, respondent board appointed respondent Vincent Salamone as the team's coach. This appeal ensued. Petitioner contends that Salamone's appointment violates Education Law ''3009(1) and 3010 and Commissioner's regulations ''80.18 and 135.4(c)(7)(i)(c). Petitioner requests an order annulling the appointment and directing respondent board to cease and desist from appointing coaches without due regard to the Commissioner's regulations. Petitioner's request for interim relief pending a determination on the merits was denied on January 24, 1997.

Respondents argue that petitioner lacks standing to bring this appeal. I disagree. School district residents have standing to challenge allegedly illegal expenditures of school districts (Appeal of Dumack ver Hunce, 26 Ed Dept Rep 340; Matter of Powell, 22 id. 353; Matter of Kelly, 21 id. 50). Furthermore, petitioner's daughter is a member of the basketball team for which respondent Salamone was appointed coach. A temporary coaching license provides assurance to pupils and parents that a coach employed by the district meets certain qualifications. This assurance is lacking when a district fails to obtain such a license. This lack of assurance constitutes a continuing threat of harm sufficient to confer standing on petitioner. Parents need not wait until tragedy strikes before they may challenge matters affecting the health and safety of their children (cf.Appeal of Connelly, 28 Ed Dept Rep 246).

Respondents also argue that the appeal is untimely since respondent board made the coaching appointment on November 12, 1996 and this appeal was not commenced until January 14, 1997. Although petitioner did not commence the appeal within the 30-day period set forth in Commissioner's regulations (8 NYCRR 275.16), a district's employment of an uncertified teacher, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Tropia, 32 Ed Dept Rep 606; Appeal of Nettles, 31 id. 437; Appeal of Sroka, 31 id. 513). I find, therefore, that the appeal is not time-barred.

As to the merits, petitioner contends that respondent board's appointment of Salamone violates Commissioner's regulation '135.4(c)(7)(i)(c) because Salamone is not a certified teacher and does not hold a temporary coaching license. Petitioner argues that Salamone is not eligible for a temporary coaching license because a certified teacher with coaching qualifications and experience applied for the coaching position.

Commissioner's regulation '135.4(c)(7)(i)(c) restricts the appointment of coaches for interscholastic athletic teams. Specifically, 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. Uncertified persons must first obtain a temporary coaching license from the Commissioner.

Under these provisions, Salamone, who is not a certified teacher, could be appointed as a temporary coach only if (i) neither a certified physical education teacher nor a teacher certified in another area but with coaching qualifications and experience were available and (ii) he had a temporary coaching license (see, Appeal of Cracchiolo, 36 Ed Dept Rep 230). In this case, petitioner contends that a certified teacher with coaching qualifications and experience, Mark C. Smith, applied for the position. Respondents argue that, in the opinion of respondent board, Smith did not have the qualifications to be the team's coach. In his affidavit Smith states that he holds permanent New York State certification in social studies and has been employed as a teacher in the District since 1982. He states that he has satisfied the interscholastic coaching requirements of 8 NYCRR '135.4(c)(7)(i)(c)(2)(i) and (ii) and '135.5 and served as the coach of the District's varsity basketball team for approximately 14 years. Respondents do not explain why Smith is no longer qualified for the position, but do begin their answer with a recitation of the team's win-loss record under Smith the previous season. This is not persuasive. An unsuccessful record, standing alone, does not establish that an individual is unqualified to serve as a coach.

Furthermore, Salamone does not have a temporary coaching license. Respondents argue that an application for a temporary license for Salamone had been submitted to the State Education Department. However, the regulation clearly states that a board may employ an uncertified person as a coach "upon the issuance by the commissioner of a temporary coaching license" (8 NYCRR '135.4[c][7][i][c][3]). This means that the uncertified individual employed by the district may not undertake coaching responsibilities until he/she has actually received a temporary license.

Petitioner also contends, and I concur, that Salamone'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 board violated the Education Law and Commissioner's regulations by appointing respondent Salamone as 1996-97 girls' varsity basketball coach. Since the team's season has ended, it would serve no purpose for me to order respondent board to retroactively rescind its appointment. However, I do not condone respondent board's actions in this matter and I caution the board 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 board comply with the provisions of the Education Law and Commissioner's regulations with respect to the appointment of coaches.

END OF FILE