Citing Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, Interim Commissioner of Education Betty A. Rosa noted that "it is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner [of Education] pursuant to Education Law §310 for review of the same matter."
In this appeal to Interim Commissioner of Education Rosa the educator [Petitioner] challenged a determination of the Board of Education [Board] not to appoint him to a coaching position. Petitioner also joined the individual [Individual] whom the Board appointed to fill the position as a respondent.*
Petitioner holds permanent certification in the area of physical education, is a tenured physical education teacher and served as coach of the School District's boys’ varsity basketball team for 11 consecutive seasons prior to 2019. In 2019 the district’s director of physical education, health, and athletics informed Petitioner of numerous concerns with his performance as a coach and identified a number of “standards” that Petitioner would be required to comply with “[i]f [he] wish[ed] to continue to be recommended for the position of Varsity Boys[’] Basketball Coach.”** Petitioner signed this "counseling memorandum" which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.
In April, 2019, Petitioner was advised in writing of  “the termination of [his] assignment as Boys[’] Varsity Basketball Coach, effective immediately” and  that the letter that it was issued pursuant to the Faculty Association’s collective bargaining agreement. Thereafter, the Board advertised for the position of boys’ varsity basketball coach. Four individuals applied to the position, including Petitioner and Individual. The Board interviewed all four applicants and determined that Individual was the best candidate for the position. In September 2019 the president of the Faculty Association requested that the reasons for Petitioner’s non-appointment.
Individual was appointed by the Board to serve as the boys’ varsity basketball coach and this appeal ensued in which Petitioner argued that  The Board violated 8 NYCRR §135.4 in appointing Individual to the boys’ varsity basketball coach position and  sought an order annulling Individual's appointment and ordering the Board to appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.
Respondents argue that the appeal must be dismissed because  Petitioner had pursued a grievance under the relevant collective bargaining agreement and  the Board further contends that its determination to appoint Individual to the position was neither arbitrary nor capricious.
The Commissioner ruled that Petitioner's appeal must be dismissed for lack of jurisdiction, observing that on the same day Respondents were served with a copy of the this §310 Appeal Petitioner filed a grievance under the Faculty Association’s collective bargaining agreement. In that grievance, Petitioner requests that the Board “rescind the appointment” of Individual and appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.***
Noting that Petitioner raised the same claims in his §310 appeal as he raised in his grievance, the Commission dismissed his appeal, explaining that under the holding of in Board of Education, Commack UFSD v. Ambach, Petitioner’s "initiation of the grievance process [had] divested the Commissioner of jurisdiction over his instant claims for purposes of an appeal pursuant to Education Law §310."
Further, opined the Commissioner, "[i]n any event, Petitioner’s claims would be dismissed under the doctrine of election of remedies," as his prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner, explaining that "[i]t would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum."
Finally, although the Commissioner dismissed Petitioner's appeal on procedural grounds, the Commissioner pointed out that Petitioner's "prior misconduct does not fit neatly within the 'coaching qualifications' set forth in 8 NYCRR §135.4(c)(7)(i)(c)," earlier decisions of the Commissioner of Education indicate that the Commissioner "has previously declined to find a board of education’s refusal to appoint a certified teacher as a coach to be arbitrary or capricious where the teacher, by his own affirmative acts of misconduct, removed himself from eligibility for such appointment."
* Petitioner also joined the individual whom the Board appointed to fill the position as a respondent. Respondent Board and the individual are referred to collectively as “Respondents” where appropriate.
** Petitioner signed this memorandum, which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.
*** The record reflects that the Board denied Petitioner’s grievance during the pendency of this §310 appeal and subsequently Petitioner sought to submit the Board’s determination to arbitration.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume60/d17927