Decision No. 14,686
Application to reopen the appeal of D.H., on behalf of S.H., from action of the Board of Education of the Berlin Central School District regarding student discipline.
Decision No. 14,686
(February 19, 2002)
Whiteman, Osterman & Hanna, attorneys for respondent, Beth A. Bourassa, Esq., of counsel
MILLS, Commissioner.--Petitioner seeks to reopen Appeal of D.H. (41 Ed Dept Rep ____, Decision No. 14,640), which dismissed petitioner"s challenge to the discipline imposed upon his daughter, S.H., by the Board of Education of the Berlin Central School District ("respondent"). The application must be denied.
In the underlying appeal, petitioner claimed that his daughter"s suspension from school was inappropriate because, interalia, the allegation that she assaulted a lunch room monitor was not borne out by the testimony adduced at her disciplinary hearing. Petitioner also alleged that, despite his request, he never received a copy of the audio tape recordings of the hearing. I dismissed the appeal on the merits, noting that I found "substantial evidence in the record to support both the hearing officer"s findings of fact and the penalty imposed."
In this application to reopen Appeal of D.H., petitioner asserts, as he did in the underlying appeal, that he never received a copy of the audio tape recordings of S.H."s disciplinary hearing, and that these tapes are the "best defense" for his daughter. Additionally, petitioner questions whether I listened to these tapes in rendering my decision in the underlying appeal, suggesting that my "decision would have been more harsh" on respondent had I listened to them.
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.
On or about March 19, 2001, I received from respondent"s counsel a copy of the audio tape recordings of S.H."s disciplinary hearing. Respondent"s counsel asserts in an affidavit that her office also sent a copy of the tapes to petitioner at that same time. The tapes were considered, together with all of the other evidence received, in rendering my decision in the underlying appeal. Petitioner has failed to show that my original determination was made under any misapprehension of fact, nor does he present new and material evidence that was not available at the time of my original decision. Accordingly, petitioner presents no grounds to reopen the issues upon which the prior decision was based (Application of Tanzer, 40 Ed Dept Rep 229, Decision No. 14,467).
THE APPLICATION TO REOPEN IS DENIED.
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