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Decision No. 16,196

Appeal of KRISTA L. PORTER from action of the Board of Education of the City School District of the City of Norwich regarding a coaching appointment.

Decision No. 16,196

(January 20, 2011)

Hogan, Sarzynski, Lynch, Surowka, DeWind, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges a coaching appointment made by the Board of Education of the Norwich City School District (“respondent”).  The appeal must be dismissed.

During the 2007-2008 and 2008-2009 school years, petitioner served as the girls’ varsity basketball coach in the district. In October 2009, she applied for reappointment to that position for the 2009-2010 school year.  Joshua Bennett (“Bennett”), a district guidance counselor, also applied for the position.  On October 22, 2009, respondent appointed Bennett.  This appeal ensued.

Petitioner challenges Bennett’s appointment, asserting that he is not eligible under §135.4 of the Commissioner’s regulations to serve as a coach.  She seeks appointment to the position for the 2009-2010 school year.

Respondent contends that it properly appointed Bennett as the girl’s varsity basketball coach in accordance with applicable law and regulations.  Respondent maintains that the petition must be dismissed as untimely and for failure to join Bennett as a necessary party. 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner seeks appointment to a one-year coaching position, which has ended.  Accordingly, this appeal is moot.

Even if the appeal were not dismissed as moot, it would 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Delaney, 46 Ed Dept Rep 253, Decision No. 15,498; Appeal of Laurencon, 45 id. 514, Decision No. 15,399).  Petitioner challenges Bennett’s appointment, which occurred on October 22, 2009.  However, the petition was not served until December 18, 2009, beyond the required 30-day time period.  Petitioner’s only explanation for the delay is that he was unaware of the appeal process.  The appeal, therefore, is untimely.

The appeal must also be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Because Bennett would be affected if petitioner prevailed in this appeal, he is a necessary party and petitioner’s failure to join him as a respondent requires dismissal.