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Decision No. 12,805

Application to reopen the appeal of RANDAL J. SAEGER from action of the Board of Education of the Lindenhurst Union Free School District relating to school district elections.

Decision No. 12,805

(September 15, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen my decision in Appeal of Saeger (31 Ed Dept Rep 523). In that decision, I dismissed the petition on procedural grounds. For the reasons set forth herein, this application must be denied.

In the original appeal, petitioner contended that respondent caused to be published flyers and notifications designed to encourage voters to support the budget in contravention of Phillips v. Maurer, 67 NY2d 672. He requested that I excuse his delay in filing the appeal and asked that I refrain from setting aside the election, even if I deemed it appropriate.

Petitioner now alleges that my decision was rendered under a misapprehension of fact and that it should be reopened. In support of this contention, petitioner alleges that the appeal was not untimely as it was served within 30 days of the election. He further asserts that he did request more than an advisory opinion and, therefore, I misunderstood the scope of his request.

Petitioner has not demonstrated sufficient grounds to warrant reopening. Section 276.8 of the Regulations of the Commissioner of Education 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 a decision was rendered under a misapprehension of the facts or that there is new and material evidence which was not available at the time the original decision was made. Although I inadvertently asserted that the original petition was filed more than 30 days from the date of the election, that was in error. However, the appeal was nevertheless commenced more than 30 days from the distribution of bulletins and flyers and the publication of information relating to the referendum in newspapers, and was for this reason untimely (8 NYCRR 275.16). Petitioner apparently also believed his appeal was untimely because he sought to have me excuse his delay by asserting ignorance of the appeal process.

Petitioner now asserts that I misunderstood the relief he requested, and contends that he was seeking more than an advisory opinion. The only other specific relief petitioner requested was the censure of a board member and I have no authorization to do so (Matter of Legatos, 23 Ed Dept Rep 10). In reality, in this application petitioner continues to seek a determination as to whether certain actions may or may not be considered appropriate. This is undeniably a request for an advisory opinion and the Commissioner does not issue advisory opinions (8 NYCRR '275.10; Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21).

Concerning petitioner's vague assertions that further actions have been taken by respondent school board of which he is now a member, these allegations have no bearing on the prior appeal or on this application. Instead of applying to reopen this appeal, petitioner must make specific allegations in the proper forum seeking appropriate redress.