Application to reopen the APPEAL OF JOSEPH and BRENDA SHEPARD, on behalf of their children JESSICA, BRITTANY, JOSEPH, KAYLEE, NICHOLAS and SAMUEL, from action of the Board of Education of the Barker Central School District regarding residency.

 

 

(March 17, 2003)

 

Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

 

MILLS, Commissioner.--The Board of Education of the Barker Central School District ("respondent") applies to reopen Appeal of Shepard, 42 Ed Dept Rep __, Decision No. 14,795, dated August 23, 2002, which sustained the appeal of Joseph and Brenda Shepard ("petitioners") from respondent"s determination that petitioners" children were not residents of the district.  The facts underlying this application are set forth in the original decision.  The application must be denied.

An application to reopen is 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 (8 NYCRR "276.8).  Such application must be made within 30 days of the date of the underlying decision (8 NYCRR "276.8; Appeal of Coleman, 37 Ed Dept Rep 391, Decision No. 13,887.

Respondent maintains that the decision was rendered under a misapprehension of fact because petitioners lack credibility.  Respondent also claims that new and material evidence that was not available at the time of the decision demonstrates that petitioners moved out of its district and enrolled their children in the Springville-Griffith Institute Central School District ("Springville") for the 2002-2003 school year.

Petitioners assert that the application should be denied as untimely and because the decision was not rendered under any misapprehension of fact.  Petitioners further contend that there is no new material evidence that was not available at the time of the decision.  Petitioners assert that they maintained their residence in Gasport until September 12, 2002, when Mrs. Shepard relocated to Springville and enrolled their children in the Springville schools for the 2002-2003 school year.  Petitioners apparently no longer claim their children reside in respondent"s district.

Initially, I will address the procedural issue of timeliness.  Petitioners claim they were not personally served but received a copy of the petition to reopen on October 4, 2002 from Andrew K. Cuddy, Esq., the attorney who represented them in their appeal.  Respondent served the petition to reopen by mail on Mr. Cuddy on September 22, 2002, 30 days from the date the decision was issued.  Section 276.8 of the Commissioner"s regulations provides that service of an application to reopen shall be made in the manner set forth in "275.8(b).  That section provides, in pertinent part, that "all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon his attorney".  Service of all pleadings subsequent to the petition shall be made by mail or by personal service."  Accordingly, respondent"s service of the application by mail to petitioners" attorney was proper (Application of Rheaume-Wellenc, 38 Ed Dept Rep 101, Decision No. 13,993).  Petitioners" assertion that Mr. Cuddy no longer represents them in this matter does not invalidate the service  because Mr. Cuddy was the attorney of record in the appeal and respondent was not informed of any change in representation.  Therefore, I find that the application is timely.

The original appeal was sustained upon a finding of insufficient evidence to support respondent"s determination that petitioners" children were not district residents.  The decision was based upon a thorough review of the entire record, including numerous exhibits documenting petitioners" residency at their Gasport home.  Moreover, subsequent events do not necessarily establish that petitioners" statements should be disregarded as lacking credibility.  Therefore, respondent has not demonstrated that the decision was rendered under a misapprehension of fact.

Furthermore, the evidence respondent claims is new and material does not warrant a reopening.  Petitioners confirm that Mrs. Shepard moved out of respondent"s district in September 2002 and enrolled the children in Springville schools for the 2002-2003 school year. Thus, it appears that petitioner effectively changed her residence and that of her children in September 2002.  Evidence of their relocation in September, however, does not alter the determination of residency for the 2001-2002 school year made on August 23, 2002.  Indeed, this new evidence supports a finding of mootness, rather than create grounds for reopening.

To the extent respondent attempts to reargue the past residency of petitioners" children, mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Appeal of Satler, 41 Ed Dept Rep __, Decision No. 14,690; Appeal of Amara S., 39 id. 758, Decision No. 14,371; Appeal of Osoris, 38 id. 273, Decision No. 14,031.)

 

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE

---