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Decision No. 15,911

Application to reopen the Appeal of ROCCO N. LANZILOTTA from action of the Board of Education of the Westbury Union Free School District, Laura Pierce, Adelaide Brinson and Stan J. Ercolano regarding an election.

Decision 15,911

(April 20, 2009)

Bondi & Iovino, attorneys for petitioner, Anthony F. Iovino, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondent Board of Education of the Westbury Union Free School District, Lawrence J. Tenenbaum, Esq., of counsel

The Board of Education of the Westbury Union Free School District (“respondent board”) seeks to reopen the Appeal of Lanzilotta, 48 Ed Dept Rep ___, Decision No. 15,905, which sustained petitioner Lanzilotta’s challenge to the district’s school board election held on May 20, 2008.  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 (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395; Application to reopen the Appeal of Johnson, 45 id. 275, Decision No. 15,320).

Initially, respondent board claims that I applied an incorrect standard of review in my prior decision.  As stated above, a reopening 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.  Moreover, the correct standard of review was applied in the prior decision.  Accordingly, I will not grant a reopening on this basis.  

Respondent board maintains that the decision was rendered under a misapprehension of fact because it asserts that no paper ballots were submitted, the district assigned more than the requisite number of election inspectors at the Park Avenue polling place and I mistakenly credited affidavits submitted with the petition regarding the atmosphere at the polling place. In support of its claim that the decision was rendered, in part, under a misapprehension of fact, respondent board submits affidavits and exhibits to refute the findings in the decision.  As stated above, a reopening may not be used to augment previously undeveloped factual assertions and arguments or to merely reargue issues presented in a prior appeal.  Respondent board could have included this evidence and made these arguments in the appeal below, but did not do so.   Accordingly, I find that the original decision was not rendered under a misapprehension of fact.

Respondent board further submits that the decision should be reopened because “there is new and material evidence that was not available at the time the district’s pleadings were filed.”  Specifically, respondent board indicates that the outcome of the investigation into an allegation of wrongdoing against an election inspector concluded with no findings of wrongdoing.  Respondent board does not specify when the investigation was concluded.  Section 276.8(a) of the Commissioner’s regulations permit the reopening of a prior decision when “there is new and material evidence which was not available at the time the original decision was made” (emphasis added).  Respondent board has failed to demonstrate that the alleged new and material evidence was not available at the time the original decision was made. 

THE APPLICATION TO REOPEN IS DENIED.

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