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Decision No. 17,356

Application to reopen the Appeal of T.G., on behalf of his son K.G., from action of the Delhi Central School District relating to a suspension and application for the removal of a school district officer.

Decision No. 17,356

(March 20, 2018)

Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for respondent, Cameron B. Daniels, Esq., of counsel

ELIA, Commissioner.--Petitioner T.G. seeks to reopen the Appeal of T.G., 57 Ed Dept Rep, Decision No. 17,195, which dismissed petitioner’s appeal and application for the removal of a school district officer.  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 Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911; Application to reopen the Appeal of Zulawski, 47 id. 191, Decision No. 15,664).

Initially, petitioner claims that I incorrectly “joined” two exhibits to the petition and incorrectly identified a CPS report as the district’s investigative report.  Petitioner then reiterates the facts set forth in the petition for the underlying appeal with a new request for relief, that “all suspensions are documented and parents are given the opportunity to an informal conference and/or superintendents hearing” (sic).  As stated above, a reopening cannot be used to advance new legal arguments 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.  As respondent contends, both the CPS report and the district’s investigative report were attached as exhibits to the petition and were considered by me.  Though unclear, petitioner’s claimed misapprehension of fact appears to be in a paragraph of the decision relating to a May 23, 2016 letter from respondent’s board president in which I ruled in favor of petitioner and determined the petition to be timely.  Accordingly, petitioner has not demonstrated that the decision was rendered under a misapprehension of fact and I will not grant a reopening on this basis.

I note that, much like petitioner’s filings in the underlying appeal, the application for reopening is rambling and unclear.  Petitioner’s application to reopen the appeal is largely an attempt to reargue issues decided in the prior appeal.

Therefore, I find that petitioner’s application to reopen consists of attempts to augment previously undeveloped factual and assertions and arguments, to advance new legal arguments, and to reargue certain issues presented in the appeal.  It is well-settled that these are not bases for reopening an appeal (Application to Reopen the Appeal of Ransom, et. al, 54 Ed Dept Rep, Decision No. 16,683; Application to Reopen the Appeal of Wolff, 52 id., Decision No. 16,391; Application to Reopen the Appeal of Thomas, 51 id., Decision No. 16,322).

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE