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Decision No. 14,255

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 Nicholas Burk regarding coaching appointments.

Decision No. 14,255

(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 (see, Appeal of Brown, 39 Ed Dept Rep _____, Decision No. 14,254), but was not hired. A year later, on April 27, 1998, petitioner applied for one or more coaching assignments for the 1998-1999 school year, including "track and field - any level (boys or girls)." On February 23, 1999, respondent board instead appointed respondents Mark Ferry and Nicholas Burk as assistant coaches for the spring varsity track and field team. Respondents Ferry and Burk were not certified teachers at the time, but did possess temporary track and field coaching licenses issued by the State Education Department. Ferry's license stated that it was valid from August 1, 1998, to August 31, 1999, while Burk's license stated that it was valid from November 1, 1998, to August 31, 1999.

Petitioner contends that the appointments of respondents Ferry and Burk were in violation of Education Law ""3009(1) and 3010, and 8 NYCRR "135.4(c)(7)(i)(c), among other provisions. Respondents, on the other hand, argue that petitioner's misconduct during the 1989-1990 basketball season, together with his ejections from two varsity basketball games for unsportsmanlike conduct and resulting suspensions from two additional games during the 1996-1997 season, has disqualified him from consideration for the track and field positions. Respondents further claim, among other things, that the appeal is untimely because it was not commenced within thirty days after the appointment of respondents Ferry and Burk on February 23, 1999.

I will not dismiss the appeal as untimely. Respondents argue that the appeal is untimely because respondent board made the coaching assignments on February 23, 1999, and petitioner commenced the appeal on April 21, 1999. Although petitioner did not commence the appeal within thirty days of the appointment, a district's employment of an unqualified teacher, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Folsom, 37 Ed Dept Rep 347, Decision No. 13,876; Appeal of Kimball, 36 id. 508, Decision No. 13,787; Appeal of Tropia, 32 id. 606, Decision No. 12,929).

With respect to the merits, I find that the technical fouls called against petitioner during the 1989-1990 basketball season do not provide a basis for excluding him from consideration for the coaching positions he sought in the 1998-1999 school year. These offenses are nearly ten years removed, and petitioner has been offered and accepted coaching positions since those offenses were committed. By offering petitioner recent coaching assignments, respondent has indicated that it no longer relies upon those remote offenses.

With respect to the 1996-1997 season, however, I agree with respondent. Petitioner was ejected from two basketball games on December 6, 1996, and February 11, 1997 for unsportsmanlike conduct. In accordance with the rules of the New York State Public High School Athletic Association, petitioner was suspended from coaching the games that followed these two ejections. Following each of these ejections, petitioner met with respondent's athletic director, and, in response to a grievance filed by petitioner, on May 13, 1998, the athletic director stated the following:

At the conclusion of the 1996-97 girls JV basketball season you and I met for your evaluation on February 20, 1997. At that time, we discussed the fact that you had been ejected from two games for unsportsmanlike conduct. This is unacceptable to the Batavia City School District and you will not be considered for a coaching position. You are therefore disqualified from being appointed to any coaching positions.

(This May 13, 1998, document is not included in the record, but is quoted in a letter dated November 10, 1998, from the director of interscholastic athletics to petitioner.) Although this determination was made in the context of an arbitration proceeding, the district relies on the same position in this appeal.

Previous Commissioners' decisions have considered situations where a certified teacher has been passed over for a coaching position in favor of a non-certified person pursuant to 8 NYCRR "135.4(c)(7)(i)(c)(3). It is clear that where there is no expressed reason for hiring a non-certified person over a certified teacher, the coaching appointment will be annulled (Appeal of Folsom, 37 id. 347, Decision No. 13,876; Appeal of Cracchiolo, 36 Ed Dept Rep 230, Decision No. 13,709). It has also been held that an unsuccessful win-loss record, standing alone, does not establish that a certified teacher is unqualified to serve as a coach (Appeal of Kimball, supra).

In the few cases where misconduct or incompetence has been alleged or suggested, appeals have been dismissed without reaching the merits (e.g., Appeal of Campese, 36 Ed Dept Rep 17, Decision No. 13,639; Appeal of Caputo, 34 id. 209, Decision No. 13,285; Appeal of Hartmann, 32 id. 640, Decision No. 12,941;). In Appeal of Feiss (37 Ed Dept Rep 339, Decision No. 13,874), the board of education sought to deny the position of girls' modified soccer coach to a certified health and physical education teacher in favor of a person holding a temporary coaching license. The board maintained that the certified teacher was not qualified for the coaching position because he had ignored directives from the school's administration and failed to follow district policies or procedures when he coached extracurricular activities or sports in the past. I concluded that the board's determination that petitioner was not "qualified" was not based on objective criteria that petitioner failed to meet, but rather was a posthoc conclusion based on its opinion of him. I held that subjective determinations which resulted in an appointment of an uncertified candidate over a certified candidate were exactly what the regulation ("135.4[c][7][i][c]) prohibited.

In Appeal of Folsom (supra), the board of education argued that Education Law ""1709(16) and 1804 gave it the power and duty to appoint coaches for interscholastic athletic teams. The board contended that petitioner, a certified physical education teacher who had been employed by the district for 20 years, was not qualified for the position, but provided no explanation for its determination. Without more, I concluded that the board's determination was arbitrary and capricious. I found the appointment of a non-certified person to be inconsistent with the governing regulation, and ordered the district to comply with the law in the future.

The district then commenced an Article 78 proceeding to review my determination (Matter of the Bd. of Ed. of the Alexandria CSD v. NYS Education Department and the Commissioner of Education, Supreme Court, Albany County, n.o.r.). In a decision by Justice Kane, dated June 9, 1998, the Court quoted a portion of the board's resolution disqualifying Folsom from coaching:

WHEREAS, based on the prior personal interactions of several Board members with Robert Folsom, these Board members are of the opinion that Mr. Folsom is not qualified to perform the aforesaid duties and responsibilities of a District coaching position; and

WHEREAS, it is the opinion of various members of the Board, that Mr. Folsom was previously untruthful in response to reasonable inquiries made of him by the Board, that he is overly confrontational by nature, that one of his standard behaviors is to use intimidation to influence others, and that he lacks the character and personal values which this Board believes are required to coach a District interscholastic team.

NOW, THEREFORE, BE IT RESOLVED by the Board of Education of the District as follows:

Section 1. In the opinion of this Board, Robert Folsom is unqualified to coach a District interscholastic athletic team and, therefore, he is not available within the meaning of the Regulations of the Commissioner of Education to coach a District interscholastic athletic team.

Justice Kane found, however, that although the board had articulated reasons for finding Folsom not qualified, the resolution was silent with regard to any underlying specifics. He continued:

Concededly, the Board has the authority to impose qualifications in addition to those mandated by Education Law and the Commissioner's regulations. However, the Board cannot use subjective criteria to base its determination that Folsom was unqualified for the position in question (see, Appeal of Feiss, No. 13,874).

. . .

While it is true that the Board did, in fact, articulate reasons for finding Folsom not qualified, the Resolution is silent with regard to the underlying specifics which led the Board to opine that Folsom was "previously untruthful", "overly confrontational" and that he uses "intimidation to influence others". These statements, without any substantiation, are subjective. That is not to say that a conclusion that, inter alia, someone is untruthful is always subjective. However, absent the particulars to support the Board's finding, the Court concurs with respondents that the Board predicated its determination using subjective criteria, such as its dissatisfaction with Folsom's past behavior and its opinion of him.

Significantly, the present appeal differs from Feiss and Folsom, in that it involves facts which are objective and not disputed. Although petitioner may believe that the ejections were not warranted, he does not dispute that they occurred. Moreover, these ejections were further established in the arbitration proceeding referenced herein. Although the parties both speak in terms of whether or not petitioner had "qualifications" and was "available" at the time respondents Ferry and Burk were appointed, I note that the regulation in question, "135.4(c)(7)(i)(c), does not address the question of prior misconduct. I also note that the regulation does not entitle any person or category of persons to appointment to coaching positions, but restricts the appointment of persons not certified as teachers to certain defined circumstances.

Prior misconduct does not fit neatly within the "coaching qualifications" discussed in the regulation, within the normal understanding of such qualifications. The situation in this appeal involves a determination by respondent board that petitioner, by his own affirmative acts of misconduct, has removed himself from eligibility for appointment as an interscholastic coach representing the school district. Based upon the record before me, I cannot say that respondent board's determination was arbitrary or capricious, and I therefore will not disturb it.

Petitioner's arguments focus almost entirely on the alleged ineligibility of Ferry and Burk for temporary licenses, and upon petitioner's status as a certified physical education teacher. He relies further on evaluations of his performance as a physical education teacher, but says almost nothing about the ejections other than that they were the only two ejections in his coaching career, and that he believed that they were unwarranted.

An individual selected to serve as an interscholastic coach holds a position of high visibility in a school district. It would be irrational to argue that a certified teacher acting as an interscholastic coach, whether on behalf of the district of his employment or some other district, could never be found objectionable regardless of prior conduct. A board of education, in considering a case of prior misconduct, must consider the possible consequences to the school district, the district's reputation, and its student athletes in making a judgment about the appointment of a coach. Likewise, a board of education has the right to select coaches whose conduct is consistent with its educational mission. I find that, in this case, respondent board's conclusion that petitioner had excluded himself, by his objectively documented misconduct, from consideration for the position of assistant track and field coach, for the spring 1999 season, was a permissible exercise of its authority.

I have considered the parties' other arguments, and find them without merit.