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Decision No. 13,170

Application to reopen the appeal of WILLIAM H. COOK from action of the Board of Education of the Niagara Falls City School District regarding the appointment of a school district attorney and an assistant school district attorney.

Decision No. 13,170

(May 5, 1994)

Gold and Gold, Esqs., attorneys for respondent, Michael Alan Gold, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to reopen Appeal of Cook, 33 Ed Dept Rep 311, which dismissed his petition challenging the appointment of a school district attorney and an assistant school district attorney. The application must be denied.

Petitioner's initial appeal was dismissed on procedural as well as substantive grounds. I held that the petition was untimely since it was commenced more than 30 days from the making of the decision or act complained of (8 NYCRR 275.16) and failed to join necessary parties who would be adversely affected by a determination favorable to petitioner. The appeal was also dismissed on the merits because a school district's employment of a former school board member is not prohibited by the Education Law or any other statute or regulation.

Applications for reopening are governed by 8 NYCRR 276.8 which 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 made no such showing here. He seeks to reopen the prior decision by asserting that the procedural grounds upon which I dismissed the complaint were improper. Petitioner claims that he could not have filed the petition in a timely manner because the minutes of respondent's board meeting were not available to him. He also contends that he would have joined the necessary parties had he been properly notified.

Petitioner also asserts that my prior decision was erroneous and misapprehended the facts. However, petitioner's application contains no new evidence for consideration or any basis for his claim that I misapprehended the facts in my original decision. Aside from the baseless procedural objections noted above, petitioner's application consists of reargument as to why the original appeal should be sustained. An application for reopening is not intended to provide an opportunity for such reargument (Application of Burton, 33 Ed Dept Rep , Decision No. 13101, dated February 17, 1994; Application of Friedman, 33 id. 88; Application of Vecchio, 31 id. 82). Accordingly, I find no basis for reopening the prior decision.