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Decision No. 15,687

Appeal of ANN BARBERA, from action of Richard Powell, Superintendent of the Wappingers Central School District, regarding coaching assignments.

Decision No. 15,687

(November 21, 2007)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, James P. Drohan and Bryn Sarvis Pace, Esqs., of counsel

MILLS, Commissioner.--Petitioner is a resident of the Wappingers Central School District (“district”), and is the parent of two daughters, one a twelfth grade student, the other a ninth grade student.  She challenges certain practices and procedures relating to the operation of the district’s John Jay High School girls’ varsity softball team (“softball team”).  The appeal must be dismissed.

     The softball team has been coached since 1994–1995 by Bonnie Schilling, a certified guidance counselor employed by the district.  Since the 1996 or 1997 season, she has been assisted by an unpaid volunteer, Frank DiMaggio (“Frank”).  Beginning with the 2005 season, Frank’s daughter, Tara DiMaggio (“Tara”), also unpaid, has been assisting with the team.

During their association with the team, Frank and Tara have attended and participated actively in practices, and participated actively in games, with Frank often coaching at first base, and Tara calling pitches for the team’s pitchers.  There is no serious factual disagreement that both Frank and Tara have performed numerous duties and activities that would typically be performed by assistant coaches, and there is no disagreement that, prior to the commencement of this appeal, both Frank and Tara have been identified as assistant coaches in district publications, on the district’s website, and by Bonnie Schilling to area media.

     Petitioner recites a long list of complaints against, and many allegations of misconduct by, both Frank and Tara, nearly all of which occurred well prior to the commencement of this appeal, and are time-barred.  Most significantly, however, for purposes of this appeal, petitioner alleges that Frank and Tara have been coaching the softball team in violation of Education Law §3001-b and Commissioner’s regulation §134.5 (c)(7)(i)(c), which governs the coaching of interschool athletic teams.  Petitioner alleges that Frank and Tara are required by statute and regulation to have temporary coaching licenses.  She claims that respondent has not submitted any applications on their behalf, nor do they meet the requirements for a temporary coaching license set forth in §134.5 (c)(7)(i)(c)(3).

     Petitioner requests that I order respondent to comply with the requirements of the Education Law and Commissioner’s Regulations, and that I order respondent not to allow Frank and Tara to coach the softball team, even if they meet the criteria for temporary coaching licenses, because of their “flagrant disregard for law and regulations.”

     Respondent alleges, and petitioner does not dispute, that Frank and Tara are not paid for their services.  Respondent claims that neither the Education Law nor the Commissioner’s regulations preclude the district from accepting the help of volunteers “to ‘assist’ a Board-appointed, certified head coach.”  Respondent further claims that the coaching regulations do not apply to Frank and Tara because they are not paid employees of the district, and Education Law §3001-b and Commissioner’s regulation §135.4 (c)(7)(i)(c)(3) refer to persons “employed” as coaches.

     Respondent asserts numerous defenses, including lack of standing on the part of petitioner; failure to name and serve Frank and Tara DiMaggio and the district’s board of education as necessary parties; laches and untimeliness.

     The appeal must be dismissed because petitioner has failed to name and serve three necessary parties: the board of education, Frank DiMaggio, and Tara DiMaggio.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

     I find that the board of education is a necessary party to this appeal.  Petitioner asks for an order that respondent superintendent comply with the Education Law and Commissioner’s Regulations, and not allow Frank and Tara DiMaggio to coach the softball team.  In reality, petitioner is asking that the district be compelled to do so.  A central school district is governed by its board of education, not by its superintendent (Education Law §§1804, 1709).  Further, Commissioner’s regulation §135.4 (c)(7)(i) provides that it is the duty of trustees and boards of education to conduct extraclass athletic activities in accordance with the regulations, and to appoint coaches in conformity with those regulations.  The board of education is therefore a necessary party, and failure to name and serve the board requires dismissal (Appeal of Colety, 42 Ed Dept Rep 240, Decision No. 14,838).

     Likewise, Frank and Tara DiMaggio are necessary parties because petitioner seeks to terminate their current relationship with the softball team, even though that relationship is unpaid.  Because they would be adversely affected by a determination in favor of petitioner, I find that Frank and Tara DiMaggio are necessary parties (Appeals of Baldauf, 43 Ed Dept Rep 456, Decision No. 15,049).

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

     THE APPEAL IS DISMISSED.

END OF FILE