Appeal of ANN BARBERA, from action of Board of Education of the Wappingers Central School District, Richard Powell, Superintendent, Frank DiMaggio, and Tara DiMaggio, regarding coaching assignments.

Decision No. 15,782

(July 19, 2008)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondents Board of Education and Powell, Bryn Sarvis Pace, James P. Drohan, and Semira Ansari, Esqs., of counsel.

MILLS, Commissioner.--Petitioner is a resident of the Wappingers Central School District (“district”) and is the parent of a daughter who attends a district school.  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 factual background of this appeal is set forth in a prior appeal, Appeal of Barbera (47 Ed Dept Rep 256, Decision No. 15,687) which was dismissed on November 21, 2007, for failure to join and serve Frank DiMaggio, Tara DiMaggio, and the Board of Education of the Wappingers Central School District (“board”).  The facts will not be repeated here.

This appeal was commenced February 4, 2008, following the dismissal of the previous appeal, and before the beginning of the 2008 softball season.  The petition alleges, as did the petition in the prior appeal, that Frank DiMaggio and his daughter, Tara DiMaggio, continue to act as assistant coaches of the softball team, together with head coach Bonnie Schilling, a certified guidance counselor in the district, although Frank and Tara do not hold temporary coaching licenses.  Petitioner alleges that their association with the softball team violates Education Law §3001-b and Commissioner’s regulation §135.4(c)(7)(i)(c)(3).  Petitioner further alleges that Superintendent Richard Powell (“Powell”) and the board of education (“board”) have allowed Frank and Tara to continue to be associated with the team, in violation of statute and regulation, and have failed to apply for temporary coaching licenses on their behalf.

Respondents Powell and the board take the position that Frank and Tara have never been paid for their services, and are not coaches.  They claim that neither the Education Law nor the Commissioner’s regulations preclude the district from accepting the help of volunteers to assist the certified head coach.  Powell and the board further claim 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.  Respondents Powell and the board assert numerous defenses, including lack of standing on the part of petitioner, untimeliness, and resjudicata and/or collateral estoppel based on the dismissal of petitioner’s first appeal.  They also alleged in their answer that Tara DiMaggio was not expected to volunteer to assist with the softball team during the 2008 season, or future seasons.

Tara DiMaggio was properly joined and served with the notice of petition and petition, but has not responded to the petition.

Frank DiMaggio was properly joined and served with the notice of petition and petition, and served an abbreviated answer to some allegations in the petition, in an answer sworn to on March 2, 2008.  He denies that he has ever been paid as a coach or identified himself as a coach, and claims that he volunteers his time and expertise when requested with several teams and organizations within his community, including the softball team.

After all pleadings and memoranda of law had been served and filed, on April 28, 2008, my Office of Counsel sent a letter to counsel for respondents Powell and the board, and a separate letter to Frank DiMaggio, requesting additional information pursuant to Commissioner’s regulation §276.5.  The letter sought information as to whether or not Frank DiMaggio and Tara DiMaggio were actually associated with the softball team during the 2008 softball season.

In response, counsel for respondents Powell and the board provided two affidavits from head coach Bonnie Schilling, indicating that neither Frank DiMaggio nor Tara DiMaggio was associated with the softball team in any manner during the 2008 softball season.  Petitioner has not submitted proof that would rebut these affidavits.

The appeal 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 exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  While it is clear that Frank and Tara DiMaggio had been associated with the softball team as recently as the 2007 season, it is equally clear that they have not been associated with the softball team during the 2008 softball season and there is no indication they will be associated in the future.  The appeal has therefore become academic.

To the extent that petitioner further seeks clarification as to the application of Education Law §3001-b and Commissioner’s regulation §135.4(c)(7)(i)(c) to unpaid parents and volunteers who may assist a certified coach, petitioner seeks an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).

In view of this disposition, I need not address the parties’ other contentions.

THE APPEAL IS DISMISSED.

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