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Decision No. 13,581

Appeal of DAVID T. FOGARTY, Sr., on behalf of his son, DAVID T., Jr., from action of the Board of Education of the City School District of the City of Watervliet in relation to participation in interscholastic athletics.

Decision No. 13,581

(March 21, 1996)

Hicks & Bailly, Esqs., attorneys for respondent, Stephen F. Bailly, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the City School District of the City of Watervliet ("respondent"), upholding the dismissal of his son from the varsity baseball team and refusing to further discipline the varsity baseball coach. The appeal must be dismissed.

At the time this appeal was commenced (June 16, 1995) petitioner's son, David, was a member of the senior class at Watervliet High School; he graduated on June 23, 1995. The record indicates that David was a member of the varsity baseball team in 1994 and 1995. During a practice held on Sunday, April 30, 1995, David became embroiled in a shouting match with Anthony P. Curro, Jr., the varsity baseball coach. The record further indicates that both participants used profane and obscene language toward each other. At the conclusion, Mr. Curro dismissed David from the team.

Thereafter, it appears that petitioner, his son, Mr. Curro, the athletic director, high school principal, and district superintendent of schools engaged in various discussions and attempted to reach some compromise. When these efforts failed, it appears that petitioner brought the matter to the attention of the board of education, and evidently sought both reinstatement for his son and disciplinary action against Mr. Curro. On May 12, 1995, the superintendent issued a "letter of counseling" to Mr. Curro stating that his ". . . conduct of verbal profanity toward the student was found inappropriate and should not be repeated." On May 16, the superintendent wrote to petitioner and his wife advising that the board had completed its investigation and had decided not to take any further action. On May 18, Mr. Curro, the athletic director, and high school principal wrote a letter to petitioner and his wife, explaining the basis for David's dismissal from the varsity baseball team, citing "(1) insubordination, (2) use of profane and vulgar language to his coach and (3) failure in repeated occasions to maintain self-control."

Petitioner does not seek to have his son restored to the baseball team, "or to have any action taken with respect to his suspension." He instead requests that Mr. Curro be suspended for part of the 1996 season, that a written reprimand be placed in his file, and that he be dismissed from his position. Respondent generally denies that petitioner is entitled to any of these forms of relief, and sets forth several affirmative defenses. Respondent contends that the relief sought by petitioner against Mr. Curro, a tenured teacher, can only be obtained through the prosecution of a disciplinary proceeding pursuant to Education Law '3020-a. Respondent also claims that because David is no longer a student in the district, the appeal is moot. Respondent further asserts that the appeal is untimely.

I agree with respondent that many of the forms of relief requested by petitioner cannot be granted in this appeal. However, there is ample authority for the use of an appeal pursuant to Education Law '310 to compel a board of education to pursue further investigation and disciplinary action against an employee (Appeal of Brown, 30 Ed Dept Rep 225; Appeal of Won, 29 id. 381, and cases cited therein; Appeal of Antonelli, 28 id. 362). Thus, I will not dismiss the appeal for failure to state a claim.

I also will not dismiss this matter as moot. It is true that the Commissioner of Education will only decide matters in actual controversy, and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Carter, 35 Ed Dept Rep 224; Appeal of Brown, 34 id. 33; Appeal of Paye, 33 id. 241; Appeal of Vachon, 28 id. 276). If petitioner sought to have his son restored to the varsity baseball team, the appeal would be moot. However, since it appears that Mr. Curro continues to be respondent's employee, and petitioner seeks to compel disciplinary action against him, the appeal is not moot.

Nor will I dismiss this petition for untimeliness. Respondent claims that David's suspension occurred on April 30, 1995, but the appeal was not commenced until June 16, 1995, which is beyond the period allowed for commencing an appeal under 8 NYCRR '275.16. However, immediately after David's dismissal, petitioner took steps to bring this matter before the board of education. Since the relief sought is almost entirely directed at the board's refusal to take further action against Mr. Curro, it is the board's refusal to take such action, set forth in the superintendent's letter of May 16, that is the subject of the appeal. Although the commencement of the appeal on June 16 was 31 days after the date of that letter, petitioner states that the superintendent's letter was mailed to him. Unless petitioner received the letter on the same day that it was dated, it would appear that the appeal was commenced within 30 days of its receipt. I will, therefore, not dismiss for untimeliness.

The appeal must, however, be dismissed on the merits. I note that both the petition and reply are verified by petitioner David T. Fogarty, Sr., who was not present at the practice which occurred on April 30, 1995. The only affidavits submitted by eyewitnesses to the incident which gave rise to this appeal were those of Mr. Curro and one player. That player stated only the following: "Coach Curro used vulgar and profane language toward David several times, which resulted in David responding in the same manner. I have never heard coach Curro use obscenities so much before and react this way before." Conspicuously absent is any affidavit by David, Jr., which would contradict the allegations of the Curro affidavit.

A board of education has substantial discretion as to whether or not to bring disciplinary action against an employee (Appeal of Brown, supra; Appeal of Won, supra; Appeal of Antonelli, supra). Absent extraordinary circumstances, I will not substitute my judgment for that of respondent board in the exercise of this discretion (Appeal of Hicks, 8 Ed Dept Rep 147). There is insufficient proof in the record before me to induce me to modify the action taken by the board of education.

Although I do not sustain this appeal, I am troubled by the affidavits of the parents of other players who have been associated with Mr. Curro over the years. It does not appear that respondent has been as vigilant as it might have been with respect to the supervision of this employee. Respondent is charged by law with " . . . the superintendence, management, and control of the educational affairs of the district . . . " (Education Law '2503). I strongly urge respondent to see that all of its students are treated with fairness and dignity in all of their activities.