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Decision No. 13,525

Application to reopen appeal of KAREN ALLEN, SUSAN BEGLEY, LUCILLE DeVITO, MICHAEL HERRSHAFT, GREGORY KULICK, ETTORE MALVETTI and RICHARD ZAKAR from action of the Board of Education of the Middle Country Central School District and Eileen Banschback, Timothy Dowler, George Royce and John Wolkiewicz, teaching assistants, relating to teacher excessing.

Decision No. 13,525

(December 8, 1995)

Kaplowitz & Galinson, Esqs., attorneys for petitioners, Daniel Galinson, Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondent, David M. Wirtz, Esq., of counsel

MILLS, Commissioner.--Petitioners seek to reopen Appeal of Allen, et al., 34 Ed Dept Rep 627. In that decision, Commissioner Sobol found that petitioners' positions were properly abolished and their employment legally terminated. The application must be denied.

Applications for reopening are governed by 8 NYCRR '276.8, which states in pertinent part:

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.

Petitioners contend that the decision in Appeal of Allen, supra, was rendered under a misapprehension of fact. In Appeal of Allen, Commissioner Sobol based his decision on the following facts. On August 25, 1994, respondent board abolished 11.6 positions in the physical education tenure area as a result of modifications to its physical education program scheduled for the 1994-95 school year. Petitioners were notified that their positions had been abolished and that their employment was terminated, effective September 1, 1994. Pursuant to Education Law '2510(3), petitioners were placed on a preferred eligible list. After abolishing the physical education positions, respondent board required its elementary classroom teachers to provide physical education instruction to their students under the direction and supervision of a certified physical education teacher and the director of physical education. Adaptive physical education is provided by four teaching assistants, who are certified physical education teachers. Those teaching assistants work under the general supervision of a certified physical education teacher.

Petitioners contend that Commissioner Sobol misapprehended facts because the positions at issue were never really abolished. However, as the Commissioner held in Appeal of Allen, supra, the record reflects that petitioners' positions were abolished simultaneous with numerous other positions. The record further reflects that this was done for fiscal reasons. Additionally, the record shows that no new positions were created. Instead, petitioners' duties were redistributed to classroom teachers and no classroom teacher was performing more than fifty percent of the former duties of any petitioner. Petitioners conceded in their memorandum of law that this type of distribution comports with the legal principle of "fractionalization" (Appeal of Chaney, 33 Ed Dept Rep 12; Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31).

Petitioners raise the same issues and facts in this application that they raised in Appeal of Allen, supra. Petitioners characterize these issues as Commissioner Sobol's misapprehension of the facts. Merely reiterating facts and issues does not demonstrate misapprehension. Petitioners are attempting, instead, to reargue the merits of the prior appeal. An application for reopening is not intended to provide an opportunity for such reargument (Application of Reese, et al., 34 Ed Dept Rep 447; Application of McCall, 32 id. 565; Application of Vecchio, 31 id. 82). Accordingly, I find this application alleges no misapprehension of facts sufficient to justify overturning Commissioner Sobol's previous decision.

Petitioners' remaining claims concern respondent's compliance with 8 NYCRR '135.4[c][1][iv]. As stated in Appeal of Allen, petitioners assertions to the contrary, the record reflects that these claims were raised for the first time in petitioners' memorandum of law and in subsequent reply papers. Accordingly, the Commissioner did not address them because a memorandum of law may not be used to belatedly add assertions or exhibits which should have been included in the petition (Application to reopen the appeal of Board of Education of Nyack Union Free School District, 33 Ed Dept Rep 237; Appeal of Johnson, 26 id. 42). Accordingly, the record reflects that Commissioner Sobol's refusal to address these claims was rational and not the result of a misapprehension of fact.