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Decision No. 14,495

Appeal of KRISTI D. GILBERT from action of the Board of Education of the Sauquoit Valley Central School District, Robert J. Hanna, Superintendent, Steven J. Kalies, District Superintendent of the Oneida-Herkimer-Madison BOCES, and Tim Clive regarding a coaching appointment.

Decision No. 14,495

(November 30, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondents, Henry F. Sobota, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to annul a coaching assignment made by the Board of Education of the Sauquoit Valley Central School District ("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 at the Mt. Markham Elementary School in the Bridgewater-West Winfield Central School District. In the spring of 2000, she was also employed by respondent board as the assistant coach of its girls’ varsity track team, and has been re-appointed to that position for the spring of 2001.

On June 23, 2000, petitioner was interviewed by the district’s athletic director for the position of head coach of the girls’ varsity soccer team. The only other applicant for the position was respondent Tim Clive ("Clive"), who is not a certified teacher, but who has coached the district’s girls’ varsity soccer team since the fall of 1995.

After consulting with counsel, on July 18, 2000, Superintendent Hanna initiated an application to the District Superintendent, Dr. Steven Kalies, for a temporary coaching license for Clive. After seeking additional information from the district and its counsel, the District Superintendent issued a temporary license to Clive to coach varsity girls’ soccer, effective from August 1, 2000, to June 30, 2001.

On August 8, respondent board resolved to hire Mr. Clive as girls’ varsity soccer coach, rather than petitioner. This appeal ensued, and petitioner’s request for interim relief was denied on September 14, 2000.

Petitioner contends that respondent board improperly appointed Mr. Clive to the coaching position in violation of 8 NYCRR "135.4(c)(7)(i)(c), among other provisions. She claims that she was in all respects available for the position, but was considered unavailable because she could not travel from her employment at Mt. Markham to the Sauquoit campus to start practice at 2:45 p.m., as required by the district. She further alleges that the district allows coaches of other fall sports, primarily male, to begin their practices after 3:00 p.m.

Respondents deny that petitioner was available within the meaning of the regulation, because she was not able to start practices at the time required, and states that the appointment of Mr. Clive was legal in all respects. Respondents deny any discrimination in refusing to hire petitioner, and cite circumstances which distinguish her position from that of certain coaches of other fall sports. Respondents point out that the girls’ varsity soccer team must periodically leave the school by 2:45 p.m. to be transported to away games at other schools. Respondent board also claims that petitioner did not have coaching qualifications and experience with respect to soccer.

As a threshold matter, I must address petitioner’s reply, which raises new issues and allegations and is objected to by respondents. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer; it is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Schmitt, 39 Ed Dept Rep 617, Decision No. 14,329; Appeal of Houghton, 38 id. 777, Decision No. 14,141). Accordingly, while I have examined petitioner’s reply, I have not considered those portions that constitute new allegations which are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot. It is well settled that the Commissioner will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Campese, 36 Ed Dept Rep 17, Decision No. 13,639; Appeal of Hartmann, 32 id., 640, Decision No. 12,941; Appeal of Healy, 29 id. 391, Decision No. 12,330). In the instant appeal, the fall 2000 girls’ soccer season has ended, and I cannot grant any meaningful relief with respect to it at this time.

Even if I were not dismissing for mootness, I would dismiss this matter on the merits. Respondent district has justified the hiring of Mr. Clive based upon the language found in 8 NYCRR "135.4(c)(7)(i)(c)(3), that states that non-certified persons may be employed as temporary coaches only when certified persons "are not available . . ." The record indicates that the Sauquoit Valley school day ends at 2:21 p.m. The record also indicates that, for fall sports, practices begin either at 2:45 p.m. or 3:00 p.m., depending on location. For those sports that practice on the school campus, including girls’ varsity soccer, practices begin at 2:45 p.m., whereas off-campus practices begin at 3:00 p.m. The record also indicates that there is a single head coach for girls varsity soccer. Both the girls’ junior varsity soccer team and the modified soccer team practice off-campus. It is the district’s position that, because petitioner admittedly could not be available until 3:15 p.m., she was not "available" to begin practice at 2:45 p.m. The district has expressed reasonable concerns regarding the undesirability of leaving the members of the team unsupervised from 2:21 p.m. to 3:15 p.m. and indicates that no other coach employed by the district is available to supervise team members in petitioner’s absence, for a period of more than 50 minutes.

Petitioner alleges that the district has made exceptions for other coaches in the past, and suggests that such exceptions are made primarily for male coaches. However, the situations petitioner describes involve primarily off-campus practices, which are not scheduled to begin until 3:00 p.m., because teams must be transported to their practice locations. In other situations described by petitioner, i.e., winter indoor sports, where several teams are practicing the same sport in close proximity to each other in the same building, coaches are able to supervise members of other teams if the head coaches of those other teams are delayed in arriving. The examples submitted by petitioner differ factually from the situation of girls’ varsity soccer, and do not lead to a conclusion that petitioner has been discriminated against, or that the district had a policy of ignoring lateness on the part of some coaches, but not others.

Petitioner appears to suggest that she could provide a "volunteer assistant coach," presumably not certified, and neither employed by nor selected by the district, who could supervise the members of the girls' varsity soccer team until her arrival at 3:15 p.m. In view of the district’s concerns about supervision, which I find reasonable, I find no obligation on the district’s part to allow petitioner to select someone to take her place, when the district is entitled to have the services of the person it hired and is paying. If I were to accept petitioner’s line of reasoning, a full-time academic teacher could arrive at school 50 or more minutes late every morning, as long as he or she supplied an unpaid, uncertified assistant, not selected by the district, to supervise students during that time period. Obviously, that would be unacceptable. I find the district’s schedule of practices to be reasonable, and, in view of the totality of the circumstances presented in this record, do not find its determination not to hire petitioner to be arbitrary or capricious.

The other factor relied upon by respondents is the district’s claim that petitioner "did not possess ‘coaching experience . . . satisfactory to the Board of Education,’" citing 8 NYCRR "135.4(c)(7)(i)(c)(3). I point out that petitioner is a certified teacher of physical education, and, pursuant to "135.4(c)(7)(i)(c)(1) is entitled to coach any sport in any school. As stated in Appeal of Cracchiolo (36 Ed Dept Rep 230, Decision No. 13,709): "Under these provisions, Knoblock, who is not a certified teacher, could be appointed as a temporary coach only if he had a temporary license and either (a) a certified physical education teacher was not available or (b) a teacher certified in another area but with coaching qualifications and experience was not available."

In view of this disposition, I will not discuss the parties’ other claims, which I find without merit.