Decision No. 14,042

(November 25, 1998)

MILLS, Commissioner.--Petitioners Bach and Nadalin again apply to reopen Appeal of the Saugerties School Budget Legal Defense Fund Committee and William Trumpour, Roger Lindhurst, John Nadalin and John Bach, 36 Ed Dept Rep 377, which dismissed petitioners' appeal on procedural grounds and on the merits. Petitioners' first application to reopen the appeal was denied (37 Ed Dept Rep 581). This application must also be denied.

Petitioners contend that the prior appeal was incorrectly decided. They request that the current application be forwarded to the Attorney General for investigation and possible criminal prosecution. Respondent contends that petitioners' application is moot, untimely, merely reargues the merits of the prior appeal and fails to present new evidence or any misapphrension of fact that warrants reopening.

As a threshold matter, this application is untimely. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen. The decision petitioners seek to reopen was rendered on April 3, 1997. Thus, an application to reopen should have been made by May 3, 1997. The instant application, however, was not made until June 3, 1998, more than one year after the decision. It must thus be dismissed as untimely. Petitioners cannot avoid this result by arguing that the instant application was made within thirty days of the denial of their first application for reopening. Their application for reopening is clearly directed to the merits of my original, April 3, 1997 decision. The claims raised herein thus should have been made in the earlier application to reopen.

Moreover, petitioners have not made a case for reopening. 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.

My review of the record indicates that petitioners do nothing more in this application than continue to reargue the original appeal. Nor have petitioners introduced any new facts which were unavailable at the time of the appeal or the first application for reopening.

Petitioners request that I forward the entire file to the Attorney General for a criminal investigation. I find no basis to do so. However, petitioners may themselves contact the Attorney General if they so desire.

THE APPLICATION IS DENIED.

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