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Decision No. 13,714

Application to reopen the appeal of THE BOARD OF EDUCATION OF THE LONGWOOD CENTRAL SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law '3020-a concerning charges against Anthony Toro, a tenured physical education teacher.

Decision No. 13,714

(December 19, 1996)

Ingerman, Smith, LLP, attorneys for petitioner, Warren H. Richmond, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, James D. Bilik, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of the Board of Education of the Longwood Central School District, 36 Ed Dept Rep 145, which dismissed petitioner's appeal as untimely. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that an application to reopen is 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 alleges that in the Longwood decision, I misapprehended the facts by holding that the untimeliness of the appeal left me without the discretion to consider the merits of it. Petitioner, however, mischaracterizes my reasoning. The decision states that the appeal was untimely, and that no excuse had been offered for the delay. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). An appeal instituted to challenge the determination of a hearing panel constituted pursuant to Education Law '3020-a is considered timely only if it is commenced within 30 days of receipt of the decision sought to be reviewed (Matter of Bd. of Ed. of Valhalla U.F.S.D., 19 Ed Dept Rep 259; aff'd subnomMatter of McNamara v. Commissioner of Educ. et al., 80 AD2d 660; Matter of Bd. of Ed. of City School Dist. of the City of New York, 22 Ed Dept Rep 132; Appeal of Lessem, 31 id. 191). This is a well settled point, and I am unpersuaded by petitioner's argument that its experienced counsel misinterpreted that requirement. Even if this were true, reliance upon incorrect advice of legal counsel is not an appropriate excuse for delay.

In the original appeal, I distinguished the three cases relied upon by petitioner where delays had been excused (Appeal of Bussfeld, 34 Ed Dept Rep 383; Matter of Child Suspected of having a Handicapping Condition, 29 id. 463; Matter of Young, 21 id. 99). I noted that the exceptions granted in those cases were based on facts that indicated there was good cause for the delay, the delay was minimal, and important policy issues were at stake. None of these circumstances exist here.

Petitioner now presents the argument that since the panel determination was received on August 15, 1995, and the cover letter transmitting the decision to petitioner from the State Education Department set forth the provisions of Education Law '3020-a(4) which stated that "Within thirty days of receipt of such hearing report the employing board shall implement the recommendations thereof," petitioner forestalled implementing the panel's recommended six month suspension until the September 7, 1995 board meeting. Petitioner states that it intended to initiate respondent's suspension during the school year to eliminate any possible argument that a portion of respondent's suspension had been served during the summer months. However, as respondent notes, although petitioner authorized the appeal on September 7, 1995, it failed to commence the appeal until September 30, 1995 which rendered it untimely.

Petitioner asserts for the first time in this application to reopen that it had a reason for the delay in initiating the appeal. However, this issue was not presented in the original appeal. A reopening may not be used to augment previously undeveloped factual assertions and arguments or to advance new legal arguments (Application to reopen the Appeal of a Student with a Disability, 33 Ed Dept Rep 659). The alleged excuse offered by petitioner regarding the timing of respondent's suspension was clearly available at the time petitioner submitted the original appeal. Consequently, petitioner has failed to demonstrate a basis for reopening my prior decision.

THE APPLICATION IS DENIED.

END OF FILE