Decision No. 13,847

(November 3, 1997)

MILLS, Commissioner.--Petitioner challenges the appointment of respondent Witherspoon by the Board of Education of the Sweet Home Central School District ("respondent") as boys’ varsity basketball coach for the 1996-97 season. The appeal must be sustained.

Petitioner holds a permanent New York State certification in physical education and is a tenured teacher in respondent’s school district. On April 25, 1996, respondent’s athletic director posted a notice for applications for coaching positions for the 1996-97 school year. On May 1, 1996, petitioner sent a memo to the athletic director indicating his intention to apply for three basketball coaching positions. On October 15, 1996, respondent appointed Phillip Witherspoon to the head boys’ basketball coaching position. Petitioner alleges that Mr. Witherspoon did not possess a valid teaching or coaching license at the time of his appointment.

On October 31, 1996, the New York State Education Department received an application for a temporary coaching license for Mr. Witherspoon. That application was dated October 1, 1996. The State Education Department subsequently issued a temporary license for the period October 1, 1996 to August 31, 1997. This appeal ensued. Petitioner’s request for interim relief pending a determination on the merits was denied on December 6, 1996.

Petitioner contends that Witherspoon’s appointment violates Education Law "3009(1) and 3010 and Commissioner’s regulations "80.18, which limits the employment of uncertified teachers, and "135.4(c)(7)(i)(c), which restricts the appointment of coaches for interscholastic athletic teams. Petitioner seeks an order annulling respondent’s appointment of Mr. Witherspoon and directing respondent to cease appointing coaches in violation of the regulation. Respondent contends that its appointment was proper and made in good faith. Respondent also contends that Mr. Witherspoon meets all the qualifications for a temporary coaching license, was granted a license and has been head basketball coach in the district for the past three years.

8 NYCRR "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 interscholastic sports teams, but only when certified physical education teachers or certified teacher with coaching qualifications and experience are not available (Appeal of Kimball, 36 Ed Dept Rep 508; Appeal of Cracchiolo, 36 id. 230). Uncertified persons must first obtain a temporary coaching license from the Commissioner.

Under these provisions, Witherspoon, who is not a certified teacher, could be appointed as a temporary coach only if he had a temporary license and either (a) a certified physical education teacher was not available or (b) a teacher certified in another area but with coaching qualifications and experience was not available. That is not the case here. Petitioner Cavanaugh, a certified physical education teacher, applied for the position. Moreover, respondent Witherspoon did not have a temporary coaching license at the time respondent appointed him to the position since he was appointed to the position on October 15, 1996 and the application for a coaching license was not received by the New York State Education Department until October 31, 1996. 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 or she has actually received a temporary license, not upon application for that license.

Petitioner contends that the appointment of Witherspoon 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 case (Appeal of Kimball, supra; Appeal of Cracchiolo, supra; Appeal of Kenna, 29 id. 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, 391 NYS2d 183, 359 NE2d 988(1976); Appeal of Longshore, 32 Ed Dept Rep 311). In light of the above discussion, I reject respondent’s arguments that Mr. Witherspoon was more qualified to hold the coaching position than petitioner and its interpretation of the regulation that Mr. Witherspoon’s appointment was proper.

Accordingly, respondent’s appointment of Witherspoon violated the Commissioner’s regulation governing the appointment of coaches for interscholastic athletic teams. 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 action 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 the Commissioner’s regulation with respect to the appointment of coaches.

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