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Decision No. 13,285

Appeal of RICHARD CAPUTO from action of the Board of Education of the Byram Hills Central School District, Thomas N. Bisceglia and Paul Valerio with regard to appointment of a football and lacrosse coach.

Decision No. 13,285

(November 3, 1994)

Cherico, Stix and Associates, Esqs., attorneys for petitioner, Wayne P. Stix, Esq., of counsel

McGuire, Kehl & Nealon, Esqs., attorneys for respondent board of education, Jeffrey A. Kehl, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the Byram Hills Central School District ("respondent board") to appoint Paul Valerio as the varsity lacrosse coach for the spring 1994 season and to appoint Thomas N. Bisceglia as the varsity football coach for the fall 1994 season. The appeal must be dismissed.

Petitioner was the varsity lacrosse coach from 1973 through the 1993 season and the varsity football coach from 1975 through the 1993 season. Attorneys for a former football team member allege that petitioner's failure to properly supervise the varsity football team at a pre-season training camp in August 1991 allowed hazing activities to occur that resulted in injury to a student. The student subsequently instituted a court action against respondent board which is pending in New York State Supreme Court, Westchester County.

As a result of discussions between the superintendent and petitioner, on February 5, 1992, petitioner signed an agreement regarding his conduct as a coach. As part of that agreement, petitioner consented:

A. to establish a system of individual and team rewards based on criteria perceived by students and parents to be fair and open, including

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2. the elimination of coaches' or students' behavior which sets apart certain other team members based on their relative ability or years on the team. Teams in the district must be seen by all students as a welcoming and inclusive activity.

3. the clarification of Mr. Caputo's role in assisting team members in the college admission process and/or in pursuing scholarship opportunities; such assistance will be available to all team members who request it, subject to review by the counselor of record for the individual student.

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B. to develop a formal or informal process for team members, individually or collectively, to raise issues with Mr. Caputo that concern them without fear of reprisals from other team members, other coaches, or Mr. Caputo himself.

C. to develop a similar procedure for dealing with parents. Such a procedure shall assure parents and students that discussions with parents shall not in any way be shared, directly or indirectly, with team members, including the student whose parent has brought an issue to Mr. Caputo's attention. Relations with parents, whether positive or negative, shall never enter into discussions with team members and will not affect the coaches' interaction with individual students.

D. In addition to the example set for team members and other coaches by Mr. Caputo in treating students fairly and in an evenhanded manner, to establish, and commit to the rigorous enforcement of, rules and regulations designed to eliminate all semblance of scapegoating, ridicule, hazing, or other forms of student behavior which target certain students.

E. to moderate the intemperate use of language and other behavior on the sideline and in practice. In examining his practices in this regard, Mr. Caputo will adhere to these principles:

1. Public remarks of a demeaning or embarrassing nature shall be avoided when correcting students.

2. Correction or disciplining of students shall take place in private or at least in private conversation.

F. to recognize that students may from time to time have unavoidable school and/or family demands that come into conflict with team practice schedules and to make allowances for such obligations to be met without fear of being singled out, punished, or ostracized for failing to place the team above everything else. While it is true there is no "I" in the word "team", there is an "I" in both "education" and "family."

During the autumn of 1993, the superintendent received a substantial number of verbal and written complaints from parents about petitioner. The first complaint was from the parent of a soccer player who came to the school to take his injured son to the hospital. The parent asked petitioner if he could unlock a chain at the entrance of the soccer field. Petitioner, according to the parent, refused to assist the parent (saying he was busy with football practice), refused to tell the parent how to get help or give the parent his name. Other parental complaints alleged that petitioner routinely humiliated and cursed at players, refused to let them take showers after a losing game, directed obscenities at players and routinely screamed and banged lockers. Moreover, petitioner incurred repeated game penalties for abusive behavior towards game officials.

On November 15, 1993, the high school principal met with approximately 35 players' parents. At that meeting, the parents expressed similar complaints about petitioner. On December 6, 1993, the superintendent received a packet of letters from parents, expressing concern over petitioner's behavior. On December 9 and 10, 1993, the principal met individually with 13 members of the football team. Similar complaints were registered by those players.

On December 21 and 23, 1993, the superintendent met with petitioner, reviewed the complaints received and informed him that his performance as a role model and in connection with inter-personal relationships with his players was unsatisfactory. On January 6, 1994, the superintendent met with petitioner to discuss a post-season evaluation of petitioner's performance. On January 11, 1994, the superintendent informed petitioner that he would not recommend him to respondent board for 1994 positions in either lacrosse or football.

During the winter of 1994, respondent board appointed Paul Valerio varsity lacrosse coach. During the spring of 1994, Mr. Valerio served in that capacity. On June 6, 1994, respondent appointed Thomas N. Bisceglia varsity football coach to serve in the autumn of 1994. Petitioner commenced this appeal on June 24, 1994.

As a preliminary matter, petitioner offers new allegations and exhibits in his reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). It is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been contained in the petition (Appeal of Konkoski, 33 Ed Dept Rep 303; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, in making this decision, I have not considered the new allegations and exhibits included in petitioner's reply.

Respondent board contends that this appeal must be dismissed because of several procedural irregularities. Section 275.16 of the Commissioner's regulations requires that an appeal be brought within 30 days after the making of the decision or the performance of the act complained of. Petitioner contests the appointment of Mr. Valerio as the varsity lacrosse coach for the spring season of 1994. That appointment occurred in the winter of 1994, but petitioner did not commence this appeal until the lacrosse season was completed. Therefore, petitioner's appeal on this issue is clearly untimely and must be dismissed.

Petitioner also challenges the respondent's appointment of a lacrosse coach for the 1995 spring season. In view of the fact that respondent has not yet made an appointment for that position, petitioner's appeal on that issue is dismissed as premature.

The appeal must also be dismissed because petitioner failed to join either Mr. Valerio or Mr. Bisceglia, necessary parties to this appeal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Bonanno, 33 Ed Dept Rep 610; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290). While petitioner has named Mr. Valerio and Mr. Bisceglia in his petition and seeks the revocation of their appointments as coaches, petitioner has not personally served those individuals. Section 275.8 of the Commissioner's regulations provides that a copy of the petition must be "personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion . . . or as otherwise directed by the Commissioner." The record indicates that petitioner attempted to serve Mr. Valerio and Mr. Bisceglia by leaving a copy of the petition and notice of petition at the superintendent's office. However, petitioner had not received permission from the Commissioner of Education prior to attempting that alternative means of service. Moreover, since neither individual was employed by the district at the time of this attempted service, such method was not likely to alert those individuals as to the existence of this appeal. Accordingly, the appeal must be dismissed for failure to join necessary parties.

Turning to the merits, petitioner contends that respondent board violated 8 NYCRR 135.4(c)(7)(i)(c) by appointing individuals not certified to teach when a certified teacher with coaching experience was available. Petitioner asks that I rescind the board's appointment of Mr. Valerio and Mr. Bisceglia and appoint petitioner instead. Petitioner also seeks back pay.

Regarding the appointment of Mr. Valerio as varsity lacrosse coach, the record indicates that Mr. Valerio is a properly certified teacher. Therefore, he was properly appointed by respondent board. State Education Department records also reflect that on October 4, 1994 the Office of Teaching issued Mr. Bisceglia a temporary coaching license effective retroactively to August 1, 1994. Since Mr. Bisceglia is serving as varsity football coach under a temporary license, there is no violation of 8 NYCRR 135.4(c)(7)(i) (Appeal of Pierce, 33 Ed Dept Rep 651; Appeal of Chrisfield, 33 id. 463).