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Decision No. 13,472

Application to reopen the appeal of YVONNE MCCALL, for an order withholding public funds from the Board of Education of the City School District of the City of Albany pursuant to Education Law '306.

Decision No. 13,472

(August 29, 1995)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey Honeywell, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner applies to reopen the decision in Appeal of McCall, 34 Ed Dept Rep 484. In that decision, the Commissioner declined to withhold public funds from the Board of Education of the City School District of the City of Albany absent a willful violation of a previous Commissioner's order. This application must also be denied.

Applications for reopening are governed by 8 NYCRR 276.8, which states in pertinent part:

Applications for reopening are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.

Petitioner contends that Application of McCall, 34 Ed Dept Rep 484, ("McCall III"), was rendered under a misapprehension of fact. That decision was based on the following facts. Petitioner had been employed by respondent since 1980 and was tenured as a health education teacher in 1985. In February 1993, respondent suspended petitioner. In Appeal of McCall, 33 Ed Dept Rep 148, ("McCall I"), the Commissioner annulled that suspension because respondent failed to comply with Education Law '3020-a, and ordered that any reference to the February 1993 suspension be stricken from petitioner's records and personnel files. The Commissioner further ordered that, subsequent to an examination of petitioner pursuant to Education Law '913, respondent could file charges against petitioner in accordance with Education Law '3020-a.

On September 14, 1993, respondent filed 28 charges against petitioner pursuant to Education Law '3020-a. Subsequently, respondent found petitioner guilty of 25 of the 28 charges and terminated her employment. Petitioner commenced a second appeal to challenge her dismissal. In Appeal of McCall, 34 Ed Dept Rep 29, ("McCall II"), the Commissioner annulled the dismissal because respondent failed to comply with the Commissioner's previous ruling requiring respondent to examine petitioner pursuant to '913 prior to filing charges. The Commissioner also annulled respondent's findings of guilt because they were devoid of analysis. The Commissioner further held that, if new charges were brought, they could not contain any direct or indirect references to the illegal February 1993 suspension.

On October 4, 1994, respondent filed new charges against petitioner pursuant to Education Law '3020-a. In McCall III, the case petitioner seeks to reopen, the Commissioner dismissed petitioner's claims and held that the October 4, 1994 charges were consistent with his previous order.

Petitioner now asserts that the Commissioner misapprehended the facts in McCall III and argues that the October 4, 1994 charges do not comply with his ruling in McCall II. In support of her claim, petitioner asserts that the October 4, 1994 charges were based upon incidents which occurred in February 1993. In McCall III, the Commissioner dismissed petitioner's assertion that respondent had violated his previous order by referencing incidents stated in previously invalidated charges. He held that respondent could not reference petitioner's improper suspension in February 1993 in any subsequent disciplinary charges. McCall III did not, however, preclude respondent from filing new charges based on prior incidents unrelated to the February 1993 suspension mentioned in previous charges.

Here, petitioner is raising precisely the same issues that were argued and decided against her in McCall III. An application for reopening is not intended to provide an opportunity for reargument (Application of Reese, et al., 34 Ed Dept Rep 447; Application of McCall, 32 id. 565; Application of Vecchio, 31 id. 82). Accordingly, I find this application alleges no misapprehension as to the facts which justifies overturning the Commissioner's previous decision.

Additionally, I note that contrary to petitioner's assertion in this application, the Commissioner of Education no longer has jurisdiction to review '3020-a determinations based on charges filed after September 1, 1994. Accordingly, petitioner cannot challenge the October 4, 1994 charges in a '310 proceeding before the Commissioner.

THE APPLICATION TO REOPEN IS DENIED.