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Decision No. 13,599

Appeal of RICHARD C. CAPELESS from action of the Board of Education of the Mohonasen Central School District and David Dagostino, with regard to appointment of a basketball coach.

Decision No. 13,599

(April 23, 1996)

James R. Sandner, Esq., attorney for petitioner

Buchyn & Buchyn, Esqs., attorneys for respondent board of education

MILLS, Commissioner.--Petitioner, a full-time certified teacher in the Mohonasen Central School District, appeals respondent board's ("board") appointment of respondent David Dagostino as junior varsity basketball coach for the 1995-96 school year. The appeal must be dismissed.

Petitioner is a certified English teacher and possesses a valid certificate as an athletic coach in basketball and a number of other sports. In September 1995, petitioner applied for a position as boys junior varsity basketball coach in respondent's district. By letter, dated October 13, 1995, the board's athletic director informed petitioner that he was not the successful candidate for the coaching position. On October 16, 1996, the board appointed respondent Dagostino to the position.

Petitioner contends that the board violated 8 NYCRR 135.4(c)(7)(i)(c) by appointing an individual not certified to teach when a certified teacher with coaching qualifications and experience was available. Petitioner requests that I rescind the board's appointment of respondent Dagostino as coach and offer the position to petitioner.

The board admits that petitioner was the only certified applicant but alleges that he is not qualified for the position. The board also alleges that while respondent Dagostino did not possess certification at the time of his appointment, he has since applied for a temporary coaching license and has fulfilled all necessary requirements for the issuance of such license. I note that a temporary license was issued to respondent Dagostino on February 14, 1996.

The Commissioner of Education will decide only cases where an actual controversy continues to exist, and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Hartmann, 32 Ed Dept Rep 640). I take administrative notice that the 1995-96 junior varsity basketball season has ended. The appeal must therefore be dismissed as moot insofar as it pertains to petitioner's request for rescission of the board's appointment of respondent Dagostino to the coaching position and that petitioner be offered such position (Hartmann, supra; Weaver vs. Ambach, et al., 107 AD2d 926 [Third Dept, 1985]).

Petitioner's claim for the salary denied him because of the board's allegedly unlawful action, while not moot, must nevertheless also be dismissed. Even if I were to find that the board's appointment of respondent Dagostino violated 8 NYCRR 135.4(c)(7)(i), the board was not thereby required to appoint petitioner. The board could have discontinued its junior varsity basketball program altogether or re-advertised the position rather than appoint petitioner. Petitioner's claim for salary must therefore be dismissed for his failure to demonstrate a clear legal right to the salary (Hartmann, supra).

Although this appeal must be dismissed for the reasons set forth above, I remind the board of education that pursuant to 8 NYCRR 135.4(c)(7)(i)(3) it may employ a temporary coach only when there is no certified teacher with coaching qualifications and experience available.