Decision No. 13,938
Application to reopen the application of DIONE GOLDIN for the removal of Robert W. Robar as president and member of the Board of Education of the Wappingers Central School District.
Decision No. 13,938
(May 13, 1998)
Michael K. Lambert, Esq., attorney for respondent
MILLS, Commissioner.--Petitioner seeks to reopen Application of Goldin (36 Ed Dept Rep 319), which dismissed petitioner's application for the removal of Robert W. Robar as president and member of the Board of Education of the Wappingers Central School District pursuant to Education Law ' 306. This application must also be dismissed.
In Application of Goldin, supra, petitioner alleged that while Robar was a member of the Wappingers Board of Education, he was aware of an unlawful agreement -- a "side letter" -- entered into between the superintendent of schools and the president of the Wappingers Congress of Teachers and conspired to keep the agreement secret. The application was dismissed as untimely. I also found that petitioner had failed to establish that Robar's actions constituted a willful violation or neglect of duty as required for removal under ' 306.
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 absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.
In dismissing Application of Goldin, supra as untimely, I noted that petitioner had submitted a February 28, 1996 newspaper article in which respondent confirmed his knowledge of the "side letter," and I concluded that petitioner was aware of the article at the time it was published. Petitioner indicates that I was incorrect -- that she was out of the country and was unaware of the article until May 1996. Still, petitioner did not commence the appeal until July 8, 1996, more than 30 days after her discovery. Moreover, on February 27 and 28, 1996, these actions were publicly discussed, reported, and readily discoverable by petitioner. Accordingly, she was not prevented from commencing a timely appeal (Appeal of Lilker, 35 Ed Dept Rep 14). Thus, this is not a basis for reopening the matter.
Petitioner also argues that at the time she filed her application, she was not aware that the "side letter" had been approved in executive session, but that Robar had made the fact known in his answer. Indeed, Robar's answer to petitioner's application for removal discusses a February 14, 1995 executive session and states "[t]hat all Board members present, with the exception of Peter Donnelly, expressed their approval of the 'Side Letter' agreement." Hence, this is not new and material evidence which was not available at the time the decision was made.
The balance of the application is an attempt to reargue the original decision. However, an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Varghese, 35 Ed Dept Rep 50; Application of Bach, 34 id. 18).
THE APPLICATION TO REOPEN IS DENIED.
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