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Decision No. 14,254

Appeal of RICHARD J. BROWN from action of the Board of Education of the City School District of the City of Batavia, Mark Ferry, and Christopher Mullen regarding coaching appointments.

Decision No. 14,254

(November 24, 1999)

James R. Sandner, Esq., attorney for petitioner, Anthony J. Brock, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner seeks to annul two coaching assignments made by the Board of Education of the City School District of the City of Batavia ("respondent board" or "district"). The appeal must be dismissed.

Petitioner possesses permanent certification in the area of physical education, and has been employed as a full-time physical education teacher by respondent board since 1986. During the 1989-1990 school year, petitioner coached interscholastic basketball and was cited for a number of technical fouls during the season. The district's athletic director met with petitioner during the season, but he continued to incur technical fouls. It appears that petitioner was offered the position of varsity basketball coach for the 1990-1991 season, but declined it for personal reasons. It further appears that several years later petitioner returned to coaching, and in the 1996-1997 school year coached interscholastic basketball.

In April 1997, petitioner applied for one or more coaching assignments for the 1997-1998 school year. However, respondent board declined to hire him as a coach, and instead appointed Christopher Mullen as coach of girls' modified softball and Mark Ferry as assistant coach of the track and field team. Petitioner contends that the appointments of respondents Ferry and Mullen, who do not possess certification, were in violation of Education Law ""3009(1) and 3010, and 8 NYCRR "135.4(c)(7)(i)(c), among other provisions. Respondent, on the other hand, argues that petitioner's misconduct during the 1989-90 basketball season, together with his ejections from two games and suspensions from two additional basketball games during the 1996-1997 season, has disqualified him from consideration.

I find that the appeal is moot. It is well settled that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Feiss, 37 Ed Dept Rep 339, Decision No. 13,874; Appeal of Nash, 35 id. 203, Decision No. 13,516; Appeal of Warner, 32 id. 533, Decision No. 12,907). Even though an appeal is moot, I may entertain it if the controversy is of a character which is likely to recur, or to escape review. There is no need to do so in this case, however, because the situation did recur with essentially the same facts in February 1999, and a second appeal has been commenced and is pending before me. The issues are identical, and will be addressed in the companion appeal.