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Decision No. 13,244

Application to reopen the appeal of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from the determination of a hearing panel convened pursuant to Education Law '3020-a relating to Elihu McMahon, a tenured teacher.

Decision No. 13,244

(August 17, 1994)

Hon. Paul A. Crotty, Corporation Counsel, attorney for petitioner,

Barry Weisman and Everett N. Hughes, Esqs., of counsel

James R. Sandner, Esq., attorney for respondent, Conrad W. Lower, Esq., of counsel

SOBOL,Commissioner.--Respondent seeks to reopen Decision No. 13104, dated February 22, 1994, which sustained in part petitioner's appeal, vacating the decision of the hearing panel and authorizing petitioner to suspend respondent for three months without pay. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that an application to reopen is 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.

Respondent alleges that three of the six comments which gave rise to a guilty finding on the charge of conduct unbecoming a teacher were based upon a misapprehension of fact and should be reversed. Specifically, respondent alleges that I misapprended the facts concerning specifications (1)(E), (1)(H) and (1)(C). However, each alleged misapprehension of fact is based upon my refusal to accept the factual findings of the panel majority on each of the three specifications. As I noted in my decision, the Commissioner of Education has broad authority to substitute his judgment for that of the hearing panel, even where the panel's determination has a rational basis and is not arbitrary (Matter of McNamara v. Comm'r., 80 AD2d 660; Matter of Shurgin v. Ambach, 83 AD2d 665, affd. 56 NY2d 700). As I further noted in my decision, after careful review of the record, I found that some aspects of the panel's determination must be set aside, as they are plainly contrary to the weight of the evidence. My findings are set forth in my discussion of each of the specifications in question. Respondent's disagreement with my findings of fact does not constitute a misapprehension of fact and respondent's application must, therefore, be denied.

Respondent also contends that I should reopen my decision on the ground that my findings violate his First Amendment rights under the United States Constitution. In addition, respondent contends that the decision should be reopened because penalizing a teacher for the expression of certain ideas will deprive students of the opportunity to hear differing points of view. Respondent further contends that the appeal should be reopened in the interests of justice as an unwarranted effort to micro-manage efforts by teachers to motivate their students. None of these issues were presented in the original appeal. A reopening may not be used to augment previously undeveloped factual assertions and arguments or to advance new legal arguments (Application to reopen the Appeal of a Student with a Disability, 33 Ed Dept Rep 659). Consequently, respondent has failed to demonstrate a basis for reopening my prior decision.