Decision No. 14,492

(November 30, 2000)

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of Bratge (40 Ed Dept Rep ___, Decision No. 14,454), which dismissed her request to be placed on a preferred eligibility list for appointment to a guidance or administrative position with the district. The application must be denied.

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 that was not available at the time the decision was made.

The appeal was dismissed as untimely. Petitioner had asserted a demand to be placed on a preferred eligibility list ("PEL") by letter to respondent board dated August 29, 1999. On September 27, 1999, she received a response, dated September 22, 1999 and signed by respondent superintendent, that, as petitioner admits in her reply, "informed [her] that she was being denied placement on a PEL." She sent a letter to respondents on October 3, 1999, contesting "certain inaccuracies" in the September 22, 1999 letter, and demanding that respondents state by return mail any disagreement with the facts as set forth in her October 3, 1999 letter. The record reflects no response to the October 3, 1999 letter. The appeal was commenced more than 30 days after petitioner's receipt of the September 22, 1999 letter, and was dismissed as untimely.

In this application to reopen, petitioner argues that I incorrectly considered the September 22, 1999 letter to be respondent board's official response to her August 29, 1999 letter, because the letter was signed only by the superintendent and there was no official action by respondent board reflected in board minutes relating to the September 22, 1999 response. However, petitioner offers no basis for her conclusion that a formal vote of the school board was required to respond to a demand to be placed on a PEL, nor does petitioner establish that respondent superintendent lacked authority to respond to her August 1999 letter on behalf of respondent board. To the contrary, the September 22, 1999 letter purports to be the response to the August letter to respondent board, and sets forth "the District's" position as to petitioner's claims. Petitioner's October 3, 1999 letter attempted to dispute the factual basis for certain determinations set forth in the September 22, 1999 letter and reiterated her demand for the placement of her name on the PEL. The instant application fails to demonstrate a misapprehension as to the nature of the September 22 or October 3, 1999 letters in my original decision.

Petitioner additionally sets forth in this application a long discussion of her confusion over whether the September 22, 1999 letter actually constituted a "decision," and attempts to establish good cause to extend the time limitation to cover the belated filing. Unfortunately, none of this explanation was proffered in the original appeal. Although petitioner filed a reply and specifically responded to the objection that the appeal was untimely, she provided no excuse for the delay and did not offer any of the specific explanation contained in the instant application. Petitioner submits no explanation for her failure to raise this argument at the proper time, nor does she claim that these facts were unknown at the time of her reply in December 1999. Her arguments in this application thus do not constitute new material facts that were not available when she submitted her reply in the appeal (Application of Sadewater, 38 Ed Dept Rep 734, Decision No. 14,129).

Petitioner also requests that I reopen the prior decision in the interests of justice, citing 8 NYCRR "276.9(c). Petitioner contends that respondents did not take the statutorily mandated steps either to abolish her position or to terminate her probationary employment, and that she did not resign from her position. She urges that, in addition to respondents' actions being improper as a matter of law, their actions created the confusion that led to the late filing and should thus serve to justify reopening the appeal.

The facts underlying the appeal are unclear. There is no indication in the record that respondent board took official action to abolish petitioner's position or terminate her probationary appointment, and there is no written resignation letter by petitioner in the record. However, on September 1, 1999 petitioner signed a salary contract for a guidance counselor position with the Rome City School District for the 1999-2000 school year, had trained the new guidance counselor hired by respondents to take over the guidance portion of the position previously held by petitioner, and respondents apparently believed that she had resigned from her position.

Placement on a PEL is subject to specific statutory prerequisites (Education Law "3013). The incumbent's position must in fact be abolished; if a new position is created with similar duties, the incumbent shall be appointed to that position; or, if no such new position is available, the incumbent shall be placed on a PEL for possible appointment to a similar position within seven years (id.). If, as petitioner argues, respondents did not in fact abolish her prior position and simply hired another person to perform a portion of her duties without properly terminating petitioner's employment, then petitioner does not meet the statutory prerequisites for placement on a PEL. The remedy of being placed on a PEL is not an expedient to be resorted to when other relief may not be convenient; it is a specific statutory right that can be granted only upon the occurrence of certain enumerated conditions. In sum, given the factual and legal claims that petitioner raises, there is no statutory entitlement to be placed on a PEL, and there is no basis to reopen this matter in the interests of justice.

Petitioner lastly contends that she has new evidence that was not available at the time she filed the appeal. This new evidence consists of board minutes, which show that respondent board took no official action related to the abolition of her prior position, termination of her probationary employment, or denial of her demand to be placed on a PEL. However, petitioner does not clearly establish that such minutes were in fact unavailable at the time she submitted her reply in December 1999 responding to respondents' timeliness objection. In any event, as discussed above, such evidence is irrelevant to the issue of whether the September 22, 1999 letter constituted an official response by respondents or whether there are grounds to reopen the appeal in the interests of justice.

THE APPLICATION IS DENIED.

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