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Decision No. 13,983

Application to reopen the appeal of EDWARD E. SZYMKOWIAK from action of the Board of Cooperative Educational Services for the Sole Supervisory District of Sullivan County in relation to AIDS instruction, district smoking policy and termination of employment.

Decision No. 13,983

(August 7, 1998)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

CATE, Acting Commissioner.--Petitioner seeks to reopen Appeal of Szymkowiak, (36 Ed Dept Rep 204), which dismissed petitioner's appeal challenging the termination of his employment and respondent's compliance with 8 NYCRR "135.3(c)(2)(i) relating to AIDS instruction and with State and federal statutes relating to smoking in public schools. The application must be denied.

Petitioner alleges that the Commissioner improperly decided the prior appeal and failed to address an issue raised in his previous petition. Respondent contends that petitioner's application is merely reargument of the prior appeal, that the application contains no new evidence and fails to state any misapprehension of fact that meets the standard for reopening. Respondent also contends that all issues raised in the prior petition were fully considered and decided.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the decision was made (see, Application of Saugerties School Budget Legal Defense Fund Committee, et al., 37 Ed Dept Rep 581).

In this application, petitioner argues that the Commissioner dismissed the prior appeal, in part, on improper procedural grounds. One of the grounds was mootness. Petitioner claimed respondent was violating State and federal law by allegedly failing to develop and enforce a smoking policy and failing to post "No Smoking" signs. The Commissioner held that the record indicated that respondent had developed such a policy and was enforcing it. The Commissioner also held that respondent indicated that it was posting "No Smoking" signs in its building as a means of ensuring compliance with State and federal smoking prohibitions. Consequently, petitioner's claims regarding respondent's failure to comply with the State and federal requirements relating to smoking in public schools were rendered moot. Here, petitioner takes issue with respondent's representations in the prior appeal. Most notably, petitioner argues that respondent only indicated that it was posting copies of the district's smoking policy, not "No Smoking" signs. Notably, petitioner already responded to respondent's representations in the verified reply that he submitted in the prior appeal. His claims here merely constitute reargument of his position and could have been included in the previous reply. Moreover, even if respondent only posted its anti-smoking policy throughout its buildings, rather than "No Smoking" signs, petitioner's claim would be moot. State and federal law requires respondent to adopt and post a written smoking policy, which respondent did. The use of the word sign instead of policy is deminimus and provides no basis to reopen my prior decision.

Petitioner also disagrees with my determination that portions of the prior appeal were untimely. Petitioner had the opportunity to respond to the timeliness issue in the prior appeal and, in fact, did challenge respondent's procedural defense in his previous reply. Thus, petitioner's claims in the instant application are merely reargument and do not warrant the reopening of my previous decision.

Finally, petitioner asserts that the Commissioner failed to address his claim that respondent improperly suspended him from his teaching position in retaliation for making various complaints against the district. In the original decision, the Commissioner held that petitioner failed to demonstrate that termination of his probationary appointment was in retaliation for making such complaints and that certain weaknesses in petitioner's teaching performance provided a rational basis for respondent's decision. Having determined that petitioner failed to establish that retaliation motivated respondent's termination of his services, it is axiomatic that petitioner similarly failed to carry his burden with respect to the suspension preceding his termination. For the same reasons that warranted respondent's termination of petitioner's services, its suspension of his services was permissible. Petitioner offers no new evidence to alter the conclusion that respondent's actions were rationally based, and that petitioner failed to establish otherwise.