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Decision No. 13,387

Application to reopen the Appeal of MICHAEL CARDO from action of the Board of Education of the Brewster Central School District and Package Auto School regarding employment.

Decision No. 13,387

(March 27, 1995)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent board of education, Stuart S. Waxman, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen Appeal of Cardo, 34 Ed Dept Rep 301, in which I dismissed petitioner's appeal of the termination of his employment in connection with a driver education program. This application must likewise be denied.

In the original appeal, petitioner contended, among other things, that he was improperly terminated from his employment as a driver education instructor. The appeal was dismissed as untimely. The appeal was also dismissed because it involved a dispute between petitioner and a private driving school, and the Commissioner of Education lacks jurisdiction over such dispute.

I now deny petitioner's application to reopen because he has not demonstrated sufficient grounds to warrant such relief. Under 8 NYCRR 276.8, applications to reopen are addressed solely to the discretion of the Commissioner. Such applications will not be granted in the absence of a showing that a decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time of the original decision.

Petitioner contends that the original decision was rendered under a misapprehension of fact. Specifically, he contends that it was rendered under a misapprehension of the duties he performed as a driver education instructor and that the duties he performed somehow made him an employee of respondent board and not the private driving school. I find no merit in that contention. In the original decision, I found:

Petitioner's allegations are not entirely clear. However, it appears that in June 1993, the Board of Education of the Brewster Central School District ("Brewster") and Package Auto School, Inc. ("Package") entered into a contract to conduct a driver education program at the Brewster High School. The contract required Package to provide the "behind the wheel training" component of the driver education program (See Vehicle and Traffic Law '507[1]). Petitioner was apparently employed by Package to provide this training which, for the spring semester of 1994, commenced on February 8, 1994. In response to parental complaints, Package terminated petitioner's services on March 21, 1994.

Regardless of petitioner's duties, nothing in the record indicates that he was employed by respondent board rather than the private employer. Accordingly, there is no basis for reopening my original determination that this matter involves a dispute between petitioner and a private employer, over which I lack jurisdiction.

In addition, petitioner has proved no basis to challenge my original decision that the appeal was untimely. As stated in the original decision, an appeal to the Commissioner of Education must be instituted pursuant to 8 NYCRR 275.16 within 30 days from the making of the decision or the performance of the act complained of. However, the Commissioner may excuse a failure to commence an appeal for good cause shown in the petition. The record before me indicates that Package terminated petitioner's employment on March 21, 1994, but petitioner did not commence this appeal until July 14, 1994, almost four months later. Since petitioner offered no excuse for the late commencement of the appeal, it was dismissed as untimely. Petitioner proffers no evidence to warrant changing this conclusion.