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Decision No. 15,049

Appeals of CHRISTINE BALDAUF from action of the Board of Education of the Downsville Central School District and Kyle Emerich regarding a coaching appointment.
 

(May 6, 2004)

 

Janet Axelrod, Esq., attorney for petitioner, Susan Whiteley Fuller, Esq., of counsel 

Hogan & Sarzynski, attorneys for respondents, Michael G. Surowka, Esq., of counsel 

MILLS, Commissioner.--In separate appeals, (Baldauf I, served August 11, 2003, and Baldauf II, served August 13, 2003) petitioner challenges the decision of the Board of Education of the Downsville Central School District ("respondent board") to reappoint Kyle Emerich ("Emerich") as girls" varsity basketball coach for the 2003-2004 season.  Because the appeals raise similar issues of law and fact, they are consolidated for decision.  The appeals must be dismissed.

On or about July 14, 2003, respondent board reappointed respondent Emerich as the girls" varsity basketball coach.  According to petitioner, Emerich held a temporary coaching certificate. She further alleges he is not a certified teacher in any subject and does not hold a professional coaching license.  In contrast, petitioner asserts that she is a certified teacher, has completed the first aid requirement and approved pre-service education program for coaches, and has coached girls" basketball in the district for three years.  She asserts that she was available for appointment as the girls" varsity basketball coach, and had applied for the position on or about June 13, 2003.  Petitioner contends, therefore, that Emerich"s appointment violates "135.4(c)(7)(i)(c)(3) of the Commissioner"s regulations.  Petitioner seeks nullification of Emerich"s appointment and all unpaid salary to which she would have been entitled had she been appointed as coach.

Respondent board admits that it appointed Emerich as the girls" varsity basketball coach, but denies that it violated Commissioner"s regulations.  It also denies that petitioner applied for the position or that she was available for appointment.  Respondent board explains that for the past 12 years, in accordance with the settlement of a 1992 grievance by the Downsville Teachers Association and under the collective bargaining agreement, incumbent coaches have been offered the opportunity to continue, if desired, in their position for the subsequent season, absent performance issues.  Accordingly, respondent board argues that consistent with these agreements, petitioner was not considered "available" for appointment as the girls" varsity basketball coach since Emerich, the incumbent coach since October 2001, had indicated his desire for reappointment.  Respondent board also contends that petitioner has failed to demonstrate that she is the only certified candidate for the position even if Emerich were not eligible.  Finally, respondent board contends that the Commissioner cannot award monetary relief.

In Baldauf I, petitioner challenges Emerich"s coaching appointment yet fails to name him in the caption of the petition or to serve him with the notice of petition and petition.  It is well settled that a party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Hoffman, 43 Ed Dept Rep ___, Decision No. 14,953; Appeal of Monahan, 42 id. 206, Decision No. 14,824; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Because Emerich"s rights would be adversely affected by a determination in petitioner"s favor, he is a necessary party and Baldauf I must be dismissed for failure to join him.

In addition, both appeals must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Hoffman, supra; Appeal of Monahan, supra).  Here, petitioner seeks appointment as the girls" varsity coach for the 2003-2004 basketball season. Because the basketball season has ended, petitioner"s appeals are moot (Appeal of Hoffman, supra; Appeal of Monahan, supra).  I note that petitioner did not request interim relief in either appeal.

The appeals must also be dismissed to the extent petitioner requests that she be awarded all unpaid salary she would have received had she been appointed as coach.  The Commissioner has no authority to award monetary damages or reimbursements in an appeal brought pursuant to Education Law "310 (Appeal of Kessler, 43 Ed Dept Rep ___, Decision No. 14,958; Appeal of D.H., 39 id. 721, Decision No. 14,360; Appeal of Calhoun, 38 id. 542, Decision No. 14,089).

Although the appeals are dismissed on procedural grounds, I am compelled to comment on the merits.  I have previously held on numerous occasions that a district may employ an uncertified individual as a coach only when a certified physical education teacher or certified teacher with coaching qualifications and experience is unavailable (Appeal of Kipp, 40 Ed Dept Rep 379, Decision No. 14,504; Appeal of Lee, 40 id. 19, Decision No. 14,407; Appeal of Cavanaugh, 37 id. 216, Decision No. 13,847).  In 2001, the Commissioner"s regulations were amended to allow for the appointment of uncertified persons with professional coaching certificates (8 NYCRR "135.4[c][7][i][c][4]).  Thus, under the current regulations, if an uncertified person does not possess a professional coaching certificate, that person can only be employed upon the issuance of a temporary coaching license.  To obtain a temporary coaching license, the superintendent must submit an application in which "the inability of the district to obtain the services of a certified teacher with coaching qualifications and experience is demonstrated" (8 NYCRR "135.4[c][7][i][c][3][i]).  Respondent board is reminded of the need to comply with the Commissioner"s regulations when making any future coaching appointments, notwithstanding other agreements or past practices.

In light of this disposition, I need not address the parties" remaining contentions. 

THE APPEAL IS DISMISSED.

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