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Decision No. 13,933

Application to reopen the appeal of the SAUGERTIES SCHOOL BUDGET LEGAL DEFENSE FUND COMMITTEE and WILLIAM TRUMPOUR, ROGER LINDHURST, JOHN NADALIN and JOHN BACH from action of the Board of Education of the Saugerties Central School District regarding transportation.

Decision No. 13,933

(May 6, 1998)

Shaw and Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioners Bach and Nadalin apply to reopen Decision No. 13754 concerning the provision of supplemental transportation by the Saugerties Central School District. The application must be denied.

Petitioners allege that I improperly decided the prior appeal, and seek a reversal of my determination in that matter. Respondent contends that petitioners’ application is merely reargument of the prior appeal, that the application raises no new evidence and fails to state any misapprehension of fact that meets the standard for reopening. Respondent also contends that the application does not meet the standard articulated in 8 NYCRR 276.8(b) that the application "set forth concisely" the basis upon which a decision should be reopened, since the application is not concise, is 66 paragraphs long, contains 17 exhibits and contains rhetorical, inflammatory and argumentative statements.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen.

In the application, petitioners argue that I dismissed the prior appeal, in part, on improper procedural grounds. One of the procedural grounds was mootness, since petitioners sought to challenge the provision of transportation services from the 1966-67 school year to the 1996-97 school year. I held that claims raised by petitioners prior to the 1996-97 school year were moot since those prior school years had concluded. In dismissing part of the appeal as moot, my prior decision cited cases that reflected this mootness rule. Petitioners presume that the citation of these cases, which concerned class trips, senior proms and graduation ceremonies, indicated that I was unaware of the significance of allegedly improper supplemental transportation and equated it with the cited cases. However, as respondent noted in its answer, the cited cases were merely illustrative of the concept that the Commissioner will not entertain a moot appeal.

Petitioners also disagree with my determination that the appeal was untimely. They claim that the State Education Department was on notice of the alleged misfeasance by respondent since a Department employee had received correspondence concerning this matter prior to the appeal. Petitioners also argue that they should not be held accountable to the 30 day time limit required to file appeals (8 NYCRR 275.16). However, I find petitioners’ arguments against the procedural findings in my prior decision baseless.

Furthermore, I dismissed the prior appeal on the merits as well as on procedural grounds. Petitioners challenged the proposition approved by the voters that authorized transportation beyond the limits set forth in Education Law "3635. I found that since the proposition was passed prior to the district’s adoption of a contingency budget, the supplemental transportation included in that budget was a proper expense under Education Law "2023 for the 1996-97 school year. I find no misapprehension of fact in the original decision. Nor do I find any new and material evidence that was not available at the time the decision was made. Although I regret petitioners believe that my prior decision was incorrect, there is no basis in this application to grant the relief they seek.

THE APPLICATION IS DENIED.

END OF FILE