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Decision No. 13,033

Application to reopen the appeal of KARL AARSETH against the Board of Education of the Malverne Union Free School District for the removal of a member of the Board of Education.

Decision No. 13,033

(October 29, 1993)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel

SHELDON, Acting Commissioner.--This is an application to reopen a Commissioner's decision in Appeal of Aarseth (32 Ed Dept Rep 626), in which the Commissioner denied petitioner's application for removal of Ms. Marguerite O'Connor as a trustee of the Malverne Union Free School District Board of Education. For the reasons set forth herein, this application must also be denied.

In the original application, petitioner contended that respondent's appointment of trustee O'Connor to the position of district clerk represented a conflict of interest specifically prohibited by Education Law '2103. The Commissioner denied the application because it was untimely, because petitioner failed to name Ms. O'Connor as a party to the application and because the appointment by respondent of a trustee to the position of district clerk was lawful.

I must now also deny petitioner's application for reopening because he has not demonstrated sufficient grounds to warrant such relief. Section 276.8 of the Regulations of the Commissioner of Education provides that applications to reopen 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.

Petitioner alleges that my decision should be reopened because he has reasons for both the untimeliness of the original petition and for his failure to join a necessary party, and because his petition was correct on the merits. He contends the original petition was untimely because Ms. O'Connor's appointment to the position of district clerk occurred while he was serving in Operation Desert Storm. However, this reason for delay was known to petitioner and could have been asserted by him in his original petition. It cannot be considered for the first time now (8 NYCRR 276.8; Application of Child with a Handicapping Condition, 32 Ed Dept Rep 196; Appeal of Steenrod, 28 id. 316).

Even if I were to consider this information, it is highly suspect. The record reflects that petitioner is approximately 70 years old and not likely to have been in active military service during Operation Desert Storm. Furthermore, the cease-fire to this military action took effect on April 11, 1991, more than one year prior to the July 14, 1992 appointment of trustee O'Connor to the position of district clerk. Additionally, petitioner's signature on school district voting records indicates that he was home on August 25, 1992. Petitioner never offered a valid excuse for his failure to file his original petition until February 9, 1993. Finally, regarding petitioner's failure to join a necessary party, he offers no justifiable excuse.

An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Impellizzeri, 32 Ed Dept Rep 295; Application of Ferris, 30 id. 444; Application of Burke, 28 id. 205). In this application for reopening, petitioner merely attempts to reargue the merits of his original petition. As set forth in the original decision in this matter, the Education Law and all prior decisions of the Commissioner of Education clearly authorize a trustee to hold simultaneously the position of district clerk.