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Decision No. 13,874

Appeal of GRANT N. FEISS from action of the Board of Education of the Cattaraugus Central School District and Sally Hadley regarding the appointment of a coach.

Decision No. 13,874

(February 20, 1998)

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

Williams & Brown, attorneys for respondents

MILLS, Commissioner.--Petitioner challenges the appointment of respondent Sally Hadley ("Hadley") by the Board of Education of the Cattaraugus Central School District ("respondent") as the girls' modified soccer coach for the 1997-98 season. The appeal must be sustained in part.

Petitioner holds permanent New York State certification in health and physical education and has taught in respondent's school district since 1968. By letter dated June 6, 1997, petitioner applied for the position of girls' modified soccer coach for the 1997-98 season. On June 23, 1997, respondent appointed Hadley to this position. Hadley does not hold a valid New York State teaching certificate, and, at the time of respondent's appointment, held a temporary coaching license which was scheduled to expire on August 31, 1997. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on October 7, 1997.

Petitioner contends that Hadley's appointment violates Education Law ' ' 3009(1) and 3010 and Commissioner's regulations ' 80.18, which limit the employment of uncertified teachers, and ' 135.4(c)(7)(i)(c), which restricts the appointment of coaches for interscholastic athletic teams. Petitioner requests an order annulling Hadley's appointment and an order directing respondent to comply with the requirements of Commissioner's regulations in appointing coaches.

Respondent claims that the appeal is moot because the season was scheduled to end in November 1997 and because the district intends to comply with a recent arbitrator's decision requiring the district to hire bargaining unit members under similar circumstances in the future. Respondent also argues that it did not violate Commissioner's regulations in appointing Hadley because the regulations authorize the appointment of a non-teacher when no qualified teacher is available. Respondent maintains that petitioner was not qualified for the coaching position because he ignored directives from the administration and failed to follow district policies or procedures when he coached extracurricular activities or sports in the past. Respondent argues that Hadley, though not a certified teacher, has completed the required first aid and CPR courses and was more qualified than the other non-teacher candidates. It argues that she possessed a valid temporary coaching license at the time of the appointment and that she had applied for renewal of her temporary coaching license on or about August 5, 1997. Respondent further argues that inherent in the power vested in a board by Education Law ' 1709 to appoint or hire is the power to determine qualifications for a particular position beyond technical qualifications or certifications.

First, respondent asks that I dismiss the appeal as moot. Indeed, the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Warner, 32 id. 533). However, "it is settled doctrine that an appeal will, nevertheless, be entertained where, as here, the controversy is of a character which is likely to recur not only with respect to the [same] parties . . . but with respect to others as well." (East Meadow Community Concerts Ass'n v. Board of Educ., Union Free School Dist. No. 3, County of Nassau, 18 NY2d 129, 135; see also, Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 US 498, 515; Appeal of Astafan, 36 Ed Dept Rep 463). The legal issue raised in this appeal -- whether Education Law ' 1709 empowers a board of education to determine qualifications for a particular position beyond technical qualifications or certifications resulting in hiring decisions inconsistent with Commissioner's regulations -- is important and does not become moot with the conclusion of the soccer season. Therefore, the differences between petitioner and respondent give rise to a justiciable controversy, and I will not dismiss the appeal as moot.

Furthermore, respondent's reliance on the arbitrator's decision is misplaced. The issue there was whether Hadley's appointment violated a collective bargaining agreement. Neither the arbitrator's decision finding the district in violation of the agreement nor respondent's intention to comply with the agreement in the future, renders this appeal moot. Here, the issue is whether Hadley's appointment violated the Education Law and Commissioner's regulations, an issue which is appropriately before the Commissioner of Education (Appeal of Cracchiolo, 36 Ed Dept Rep 230).

As to the merits, petitioner contends that respondent's appointment of Hadley, who is not a certified teacher, violates Commissioner's regulations because he, a certified teacher, was available for the position. Respondent argues that it did not violate the regulations -- that no "qualified" certified candidate was available, and that it could, therefore, appoint an uncertified individual under the regulations. Respondent determined petitioner was not "qualified" based on petitioner's past behavior. Respondent argues that Education Law ' 1709 vests in a board of education the power to determine qualifications for a particular position beyond technical qualifications or certifications.

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

In this case, petitioner holds permanent New York State certification in health and physical education, has satisfied the interscholastic coaching requirements of Commissioner's regulations ' ' 135.4(c)(7)(i)(c)(2)(i) and (ii) and 135.5, and has been employed as a physical education teacher in respondent's district since 1968. Although respondent argues that it has the power to impose additional qualifications, it fails to specify exactly what additional qualifications petitioner failed to meet, other than indicating that it was dissatisfied with petitioner's past behavior. Therefore, I must conclude that respondent's determination that petitioner was not "qualified" was not based on objective criteria that petitioner failed to meet, but rather was a post hoc conclusion based on its opinion of petitioner. Such subjective determinations resulting in the appointment of an uncertified candidate over a certified candidate is exactly what the regulation prohibits. While ' 1709 of the Education Law, in conjunction with ' 1804, confers broad employment powers on a board of education of a central school district, it does not grant respondent the power in this instance to determine qualifications inconsistent with Commissioner's regulations. In light of the foregoing, Hadley's appointment violated the regulations because petitioner, a certified physical education teacher, was available.

Petitioner also contends, and I concur, that Hadley'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 violated the Education Law and Commissioner's regulations by appointing Hadley as 1997-98 girls' modified soccer coach. Since the team's season has ended, it would serve no purpose for me to order respondent to retroactively rescind its appointment. However, I do not condone respondent'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 comply with the provisions of the Education Law and Commissioner's regulations with respect to the appointment of coaches.