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Decision No. 15,664

Application to reopen the Appeal of STEVEN ZULAWSKI, on behalf of his daughter SARAH ELIZABETH, from actions of the Northport-East Northport Union Free School District and Superintendent William J. Brosnan regarding charitable solicitation. 

Decision No. 15,664

(September 20, 2007)

Ingerman, Smith, L.L.P., attorneys for respondents, Anna M. Scricca, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen the Appeal of Zulawski, 46 Ed Dept Rep ___, Decision No. 15,569, concerning actions of the Board of Education of the Northport-East Northport Union Free School District ("board") and Superintendent William J. Brosnan (“Superintendent”), regarding a Thanksgiving project.  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  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.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Application to reopen the Appeal of Johnson, 45 Ed Dept Rep 275, Decision No. 15,320; Application to reopen the Appeals of Sitaras, et al., 44 id. 107, Decision No. 15,112; Application to reopen the Appeal of a Student with a Disability, 42 id. 241, Decision No. 14,839).

Petitioner contends that the appeal should be reopened because I misapprehended the facts.  He alleges that the decision determined that the community service project had been conducted “in this manner” for the three preceding years.  Petitioner’s allegation is unfounded.  The decision merely states that parent volunteers proposed a Thanksgiving community service project “as had been done for the three preceding years.”  Moreover, petitioner improperly attempts to augment his allegation by introducing new facts that were not included in the underlying record about how the project was conducted in 2003 and 2004.  A reopening may not be used to augment previously undeveloped factual assertions and arguments (Application to reopen the Appeals of Sitaras, et al., 44 id. 107, Decision No. 15,112).

Petitioner also alleges that I misapprehended the facts by stating in the decision that “no student in Sarah’s class brought in any items or money for the project” because, according to the teacher’s affidavit, there were some sealed envelopes in her classroom’s note basket that she forwarded unopened to the main office.  Petitioner concludes, therefore, that it was possible, even likely, that students in Sarah’s class brought in money for the project.  

Petitioner’s allegation is again unfounded.  Regarding the in-class project, the teacher averred that only she and other parents purchased and paid for all the ingredients.  Regarding the envelopes, since the flyer asked for contact information for those parents who could assist, or, for a cash contribution from those who could not be there, it is just as likely that the envelopes contained the bottom third of the flyer with the contact and volunteer information as cash.  Petitioner had the burden of establishing the facts upon which he sought relief, and petitioner failed to meet his burden of proving that any envelopes contained money.  Essentially, he has attempted to reargue the original appeal because he disagrees with the outcome.  It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application to reopen the Appeal of Kushner, 44 Ed Dept Rep 116, Decision No. 15,116; Application to reopen the Appeal of Satler, 41 id. 293, Decision No. 14,690; Application to reopen the Appeal of Tanzer, 40 id. 229, Decision No. 14,467).

Similarly, I find that petitioner’s remaining allegations are mere rearguments of issues in the original appeal.  As stated in the decision, the guidance memorandum issued concerning §19.6 of the Rules of the Board of Regents (“Rule 19.6”) did not intend to prohibit placing a collection box in a hallway, as respondents did in this case.  I reiterate that petitioner failed to establish that respondent’s violated Rule 19.6.

THE APPLICATION IS DENIED.

END OF FILE