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Decision No. 12,914

Application to reopen the appeal of YVONNE McCALL from action of the Board of Education of the City School District of the City of Albany, imposing a suspension without pay.

Decision No. 12,914

(April 15, 1993)

Stephen W. Herrick, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner applies for a reopening of the decision in Appeal of McCall, 32 Ed Dept Rep 367. In that decision I declined to review petitioner's suspension without pay because she had initiated a challenge to respondent's actions through the grievance procedure set forth in the applicable teachers' collective bargaining agreement. The application must be denied.

Applications for reopening are governed by 8 NYCRR '276.8. The regulation provides:

Applications for reopening are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.

Petitioner has not sustained her burden of demonstrating grounds upon which the application can be granted. In my prior decision, I determined that petitioner sought to raise the same issues she had previously raised in a contractual grievance procedure. In the application before me, petitioner references a section of the collective bargaining agreement which provides that "the aggrieved retains the right to pursue the grievance through the Commissioner of Education, and the courts in keeping with the statutes and regulations pertaining therein." Petitioner is correct that this provision of the collective bargaining agreement does not preclude a teacher from pursuing a grievance through the contractual grievance procedure or through an appeal to the Commissioner or in the courts. However, this provision also provides that the teacher is governed by the statutes and regulations governing appeals to the Commissioner or court actions.

In this instance, it has been clearly established through judicial precedent that a teacher may not commence a grievance procedure as provided for in a collective bargaining agreement and then pursue the same dispute by filing an appeal with the Commissioner pursuant to Education Law '310 (Matter of Board of Education of the Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Garod, 31 Ed Dept Rep 526; Appeal of Almeter, 30 id. 439). Petitioner does not deny that she did, in fact, commence a contractual grievance procedure and subsequently filed an appeal with the Commissioner. Therefore, I find that the prior decision was not rendered under a misapprehension of fact.

Petitioner also seeks to reargue the merits of her appeal. The application consists primarily of reargument as to why the original appeal should have been sustained. An application for reopening is not intended to provide an opportunity for such reargument (Application of Vecchio, 31 Ed Dept Rep 82; Application of Board of Education of Monroe-Woodbury Central School District, 28 id. 115; Application of Burke, 28 id. 205).