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Decision No. 13,875

Appeal of ROBERT M. FOLSOM from action of the Board of Education of the Alexandria Central School District and Leeann Calhoun regarding the appointment of a coach.

Decision No. 13,875

(February 26, 1998)

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

O'Hara & O'Connell, attorneys for respondents, Patricia R. Hoover, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the appointment of respondent Leeann Calhoun ("Calhoun") by the Board of Education of the Alexandria Central School District ("respondent") as coach of the district's modified softball team for the 1996-97 season. The appeal must be dismissed.

At its meeting on February 28, 1997, respondent appointed Calhoun as coach of the district's 1996-97 modified softball team. Calhoun does not hold a valid New York State teaching certificate and, at the time of the appointment, did not hold a temporary coaching license. On or about March 31, 1997, petitioner, who holds permanent New York State certification in physical education, applied for the position. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on May 27, 1997.

Petitioner contends that Calhoun'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 also contends that Calhoun was not eligible for a temporary coaching license because he, a certified physical education teacher, was available for the position. Petitioner requests an order annulling Calhoun's appointment and directing respondent to comply with the requirements of Commissioner's regulations when appointing coaches.

Respondent contends that the appeal should be dismissed because it is untimely and because petitioner was not harmed by the action. As to the merits, respondent argues that Calhoun is a fully licensed temporary coach for girls modified softball, that petitioner did not indicate interest in the position until well after the appointment was made, and that there is no requirement in law or regulations requiring a district to terminate a temporary coach if a qualified certified teacher becomes available after the appointment.

First, respondent argues that the appeal is untimely since the board made the coaching appointment on February 28, 1997 and petitioner commenced the appeal on April 28, 1997. Although petitioner did not commence the appeal within 30 days of the appointment as required by 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 Kimball, 36 Ed Dept Rep 508; Appeal of Tropia, 32 id. 606). I find, therefore that the appeal is not time-barred.

Respondent also argues that the appeal should be dismissed because petitioner was not harmed by Calhoun's appointment, implying that petitioner lacks standing to bring this appeal. Indeed, an individual may not maintain an appeal pursuant to Education Law ' 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Woodward, 36 Ed Dept Rep 445; Appeal of Craft, 36 id. 314). I agree that since petitioner did not apply for the coaching position until after the posting date, Calhoun's appointment and the start of practices, he was not aggrieved by Calhoun's appointment. Therefore, the appeal must be dismissed for lack of standing.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on its merits. Petitioner contends that respondent's appointment of Calhoun, 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 because petitioner did not apply for the position until after Calhoun had been appointed and because there is no requirement to terminate a temporary coach if a certified teacher becomes available.

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. The regulation further provides:

[O]ther persons with coaching qualifications and experience satisfactory to the board of education may be employed as temporary coaches of interschool sport teams, when certified teachers with coaching qualifications and experience are not available, upon the issuance by the commissioner of a temporary coaching license (8 NYCRR 135.4(c)(7)(i)(c)(3)).

Thus, respondent could only appoint Calhoun, an uncertified individual, if no certified physical education teacher or qualified certified teacher were available.

In January 1997, in response to a memo soliciting interest in spring coaching appointments, petitioner indicated that he would be interested in coaching the golf or varsity or junior varsity softball teams. Specifically, petitioner did not indicate any interest in the position in question -- coach of the district's modified softball team. It was not until March 31, 1997 that petitioner first applied for this position. Thus, there was no indication that petitioner was available for the position when respondent made its appointment on February 28, 1997. Furthermore, as respondent indicates, there is no requirement that the appointment of an uncertified person be terminated upon the subsequent availability of a certified teacher.

Petitioner also contends that Calhoun was not eligible for a temporary coaching license because he, a certified physical education teacher, was available for the position. It is true that a temporary coaching license will only be issued if the superintendent of schools demonstrates that a qualified certified teacher is not available (8 NYCRR 135.4(c)(7)(i)(c)(3)(i)). Again, since petitioner was not available at the time of the appointment, his subsequent interest similarly does not preclude Calhoun from obtaining or retaining a temporary coaching license.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE