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Decision No. 14,958

Appeal of MICHAEL K. KESSLER from action of the Board of Education of the Watkins Glen Central School District regarding a coaching appointment.



(September 17, 2003)


Hogan & Sarzynski, LLP, attorneys for respondent, Wendy K. DeWind, Esq., of counsel

 MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Watkins Glen Central School District ("respondent") to appoint him head varsity football coach for the 2002-2003 school year.  The appeal must be dismissed.

On July 11, 2002, the district's athletic interview committee interviewed petitioner and another individual for the coaching position.  The committee subsequently recommended that petitioner be appointed to the position pursuant to the district's hiring policy.  Under the district's policy, the superintendent makes a recommendation to the board of education for the appointment of a person nominated for appointment and the board of education may accept or reject a nomination.  The policy expressly states that "[n]o person shall be considered employed until a resolution to that effect has been approved by the Board." 

The parties present conflicting versions of what happened next.  Petitioner alleges that on Friday, July 12, 2002, the athletic director notified petitioner that petitioner was the committee's unanimous selection and offered him the head varsity football coach position.   Petitioner alleges he accepted the position and took certain actions, including the mailing of an introductory letter to parents encouraging their sons to participate on the football team. 

Respondent alleges that on July 12, 2002 the athletic director telephoned petitioner to inform him that the committee would recommend petitioner for the position but the district did not hire him at that time.  Respondent further alleges that petitioner"s actions as the purported coach were unauthorized and contrary to district policy.  Respondent also maintains the district received a negative employment reference regarding petitioner.


On August 5, 2002, respondent appointed the other candidate to the position of head varsity football coach.  Petitioner commenced this appeal on October 18, 2002.   

Petitioner requests that I direct respondent to pay petitioner one year's head football coach salary for damages and one year's salary for compensation.  Respondent denies petitioner's allegations and contends that the appeal must be dismissed as untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Recore, 42 Ed Dept Rep __, Decision No. 14,856; Appeal of Phillips, 40 id. 241, Decision No. 14,471).  Petitioner did not commence this appeal until October 18, 2002, more than 30 days from respondent's August 5, 2002 appointment of the other candidate to the coaching position.  Petitioner requests that I excuse his delay because he needed time to understand the law and guidelines, to prepare his appeal documents, and to communicate between separate offices of the teachers" union.  Except in unusual circumstance, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684).  Other than his general statements, petitioner does not present any specific information to support his contention that he was unable to commence his appeal within the 30-day time limitation.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed to the extent petitioner requests that he be awarded two years" salary as damages and compensation for respondent's improper actions.  The Commissioner has no authority to award monetary damages or reimbursements in an appeal brought pursuant to Education Law "310 (Appeal of D.H., 39 Ed Dept Rep 721, Decision No. 14,360; Appeal of Calhoun, 38 id. 542, Decision No. 14,089).

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep 409, Decision No. 14,513; Appeal of Acme Bus Corporation, 37 id. 219, Decision No. 13,848; Appeal of Catherine B., 37 id. 34, Decision No. 13,797).  I find that petitioner has not met this burden.  Although petitioner alleges that he was "hired" by the athletic director, respondent disputes petitioner's allegations and respondent's "Recruiting and Hiring" policy specifically provides that "[n]o person shall be considered employed until a resolution to that effect has been approved by the Board."