Decision No. 13,507

(November 6, 1995)

MILLS, Commissioner.--This is an application to reopen Appeal of Pearl Thompson, 33 Ed Dept Rep 592. Petitioner contends that the decision was rendered under a misapprehension of fact and that there is new evidence which was not available at the time the original decision was issued. The application shall be granted in part, and the appeal must be dismissed.

I will first address the procedural issues that have been raised. Respondent contends that petitioner's application is untimely. Section 276.8 of the Regulations of the Commissioner of Education provides in pertinent part: "Any party to an appeal may, within 30 days after the date of a decision thereon, apply for a reopening of said decision." The prior decision was rendered on April 18, 1994. Petitioner served her application to reopen on May 16, 1994, within 30 days of the date of the decision. However, the petition was defective in that it did not contain the notice required by 8 NYCRR '275.11 and was improperly served. On May 23, 1994, my Office of Counsel directed petitioner to correct the petition and serve it properly within two weeks. Petitioner complied and served the petition on June 3, 1994. Under the circumstances, I will excuse the untimeliness of service. Petitioner is appearing pro se, the petition, albeit flawed, was initially served within 30 days of the original decision, and was corrected and served expeditiously, as directed, with no prejudice to respondent.

Petitioner also claims that respondent's affidavit in opposition to the petition was untimely. Section 275.13 of Regulations of the Commissioner of Education requires service of affidavits in opposition to a petition to reopen a decision within 20 days from the time of service of the petition on respondent. Respondent explains, however, that it did not receive the petition until it was sent a copy by my Office of Counsel on November 7, 1994. I will accept this explanation and excuse respondent's untimely service of its affidavit in opposition.

An application to reopen an appeal is governed by 8 NYCRR '276.8, which provides in pertinent part:

An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Coleman, 31 Ed Dept Rep 211; Application of Ferris, 30 id. 444; Application of Burke, 28 id. 205).

In the prior proceeding, petitioner challenged the determination of a hearing panel, convened pursuant to Education Law '3020-a, which found her guilty of misconduct and recommended dismissal. Petitioner also challenged the refusal of the Board of Education of the City School District of the City of New York to pay salary which she claims is owed to her.

I have considered petitioner's present claims and evidence with respect to the panel's determination of guilt, and find no reason to reopen. Petitioner is essentially rearguing the same issues presented in her prior appeal. Moreover, petitioner has failed to present new material evidence or to establish that the original decision was rendered under a misapprehension of fact.

Petitioner claims that the original decision did not accurately present Specification IC, a charge preferred against her by respondent. Petitioner claims that the specification did not say that Assistant Principal Jeffrey Glicker dismissed her class. However, Specification IC clearly states: "... Mr. Glicker thereupon dismissed the class himself...." The original decision accurately reflects the specification.

Petitioner also claims that the charges brought by the school district were not properly verified as required by "section 295.5." Petitioner does not further identify the statute or regulation to which she refers. There is no section 295.5 in the Regulations of the Commissioner of Education. Petitioner may be referring to section 275.5, which requires all pleadings in proceedings before the Commissioner of Education to be verified (8 NYCRR '275.5). However, section 275.5 is inapplicable to charges preferred against a tenured teacher by a school district pursuant to Education Law '3020-a. In any event, the contention that the charges were not verified is not new, nor is it material evidence that was unavailable at the time the original decision was made.

Petitioner further claims that the original decision misunderstood the facts when it held that the claim regarding salary in 1990-91 was precluded by the doctrine of election of remedies. Petitioner claims that the contractual grievance at issue did not cover paychecks that she alleges were improperly withheld from her after January 31, 1991.

First, the contractual grievance filed by petitioner did, indeed, cover paychecks withheld after January 31, 1991. The grievance concerned a suspension from employment without pay from January 16, 1991 through April 21, 1991. The original decision correctly held that petitioner is precluded from relitigating the same issues in an appeal before the Commissioner which were previously submitted for resolution through a contractual grievance procedure (Matter of Board of Education, Commack Union Free School District v. Ambach et al., 70 NY2d 501 [1987]; Appeal of Perri, 30 Ed Dept Rep 277).

However, petitioner claims that some of the checks at issue in the 1990-91 school year cover a period of her employment after the conclusion of the period covered by the contractual grievance procedure. I will thus grant the application on the limited issue of whether respondent improperly withheld paychecks due and owing to petitioner for periods in the 1990-91 school year outside the period during which petitioner was suspended from employment without pay (January 16, 1991 - April 21, 1991).

With respect to this narrow inquiry, I find that petitioner has not established by credible evidence in the record that respondent improperly withheld checks due to her for service in the 1990-91 school year outside the period of her suspension from employment without pay. Respondent denies that it improperly withheld salary checks due petitioner in the 1990-91 school year. Petitioner claims that respondent improperly withheld checks issued on January 31, 1991, February 15, 1991, March 29, 1991, April 15, 1991, June 28, 1991, July 16, 1991, July 31, 1991, and August 30, 1991. Four of the checks that petitioner claims to be owed have issuance dates, according to dates provided by petitioner, after the effective date of her termination -- June 14, 1991. Petitioner has failed to prove that respondent owes her checks for those dates. The remaining checks were issued, according to the dates furnished by petitioner, during her suspension from employment without pay period. Petitioner admits having received an additional check on August 15, 1991, but does not state the period of employment which this check covers. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing facts upon which he or she seeks relief (8 NYCRR '275.10, Appeal of Mitzner, 32 Ed Dept Rep 403). Petitioner has failed to meet this burden.

Petitioner's remaining contentions do not introduce new and material evidence unavailable at the time of the original decision and do not demonstrate that the original decision was rendered under a misapprehension of fact.

ACCORDINGLY, THE APPLICATION TO REOPEN IS GRANTED SOLELY ON THE ISSUE OF WHETHER RESPONDENT IMPROPERLY WITHHELD PAYCHECKS DUE AND OWING TO PETITIONER FOR PERIODS IN THE 1990-91 SCHOOL YEAR OUTSIDE THE PERIOD DURING WHICH PETITIONER WAS SUSPENDED FROM EMPLOYMENT WITHOUT PAY (JANUARY 16, 1991 - APRIL 21, 1991), AND THE APPLICATION IS DENIED IN ALL OTHER RESPECTS. THE APPEAL IS DISMISSED.

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