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Decision No. 14,031

Application to reopen the Appeal of EDGAR OSORIS and JASON OSORIS from action of the Board of Education of the Chenango Forks Central School District regarding student discipline.

Decision No. 14,031

(November 23, 1998)

Hogan & Sarzynski, LLP, attorneys for respondent, Michael G. Surowka, Esq., of counsel

MILLS, Commissioner.--Petitioners, Edgar Osoris and his son, Jason Osoris apply to reopen Appeal of Osoris, 36 Ed Dept Rep 330. The application must be denied.

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. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen.

The facts underlying this application are set forth in detail in the original decision. Petitioners contend that respondent's investigation into an incident between Jason and a teacher, which occurred several days prior to the incident that led to Jason's last suspension, constitutes new evidence that mitigates Jason's misconduct. Petitioners also contend that Jason's anecdotal record, which was considered during the penalty phase of his disciplinary hearing, contains numerous inaccuracies. They argue that Jason's suspension was unduly harsh because it was based on this erroneous record. Finally, petitioners allege that Jason left personal belongings at school on the day he was suspended and, despite numerous requests, respondent has failed to return those belongings. They contend this is new evidence that warrants the reopening of the prior appeal.

Petitioners have already raised the issues of teacher misconduct and the anecdotal record in the previous appeal. Respondent's investigation into the teacher's actions was a result of a complaint filed by petitioner and does not shed any further light on the situation. As pointed out in my prior decision, the teacher's conduct, which occurred several days before the incident that led to Jason's suspension, did not mitigate Jason's behavior. Similarly, petitioners raised the accuracy of Jason's anecdotal record in the prior appeal. Respondent continues to maintain that the record is accurate. In their application, petitioners are merely attempting to reargue the original decision. However, an application for reopening is not intended to provide an opportunity for reargument of a prior decision (Appeal of Goldin, 37 Ed Dept Rep 603; Appeal of Varghese, 35 id. 50).

Additionally, petitioners assert for the first time in this application that respondent has failed to return Jason's personal belongings that were allegedly left at school when he was suspended. 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 the Board of Education of the Longwood Central School District, 36 Ed Dept Rep 245; Application to reopen the Appeal of a Student with a Disability, 33 id. 659). Therefore, I will not address this issue.