Decision No. 13,728

(January 8, 1997)

Norton/Radin/Hoover/Freedman, Esqs., attorneys for respondent, Bernard B. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen Decision No. 13649, dated August 13, 1996, which dismissed petitioner's appeal of respondent's failure to post a list of absentee voters at the district's polling place during a vote on a proposition. 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 the decision rendered in Appeal of Wroblewski, 36 Ed Dept Rep 43, was based upon a misapprehension of the facts. Petitioner contends that Acting Commissioner Sheldon misapprehended the facts before him by not interpreting the legal notice posted by respondent as a "commercial contract" between respondent and taxpayers in the district. Petitioner alleges that by failing to post the list of absentee voters as indicated in the legal notice, respondent violated its "contract" with the district rendering the whole contract null and void. Respondent contends that petitioner's application to reopen the decision consists primarily of reargument as to why petitioner's original appeal should have been sustained.

The application must be dismissed. I find no misapprehension of fact in the original decision, nor do I find any new and material evidence which was not available at the time of the original decision. Petitioner asserts that respondent's failure to comply with its legal notice was sufficient to overturn the vote. Acting Commissioner Sheldon reviewed the record and petitioner's contentions regarding the legal notice and found them without merit. Here, petitioner advances the same argument made in his original appeal. An application for reopening is not intended to provide an opportunity for reargument of a prior decision (Application of Varghese, 35 Ed Dept Rep 50; Application of Bach, 34 id. 18; Application of Maloney, 33 id. 391).

THE APPLICATION IS DENIED.

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