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Decision No. 14,072

Application to reopen the appeal of JOANNE M. BURR, from action of the Board of Education of the Fishers Island Union Free School District No. 4 regarding employment.

Decision No. 14,072

(January 21, 1999)

Bond, Schoeneck & King, LLP, attorneys for respondent, Eileen Kuklis, Esq., of counsel

MILLS, Commissioner.--Petitioner asks that I exercise my discretion under "276.8(c) of the Regulations of the Commissioner of Education to reopen Appeal of Burr, 28 Ed Dept Rep 516 (1989). Section 276.8(c) provides: "The commissioner may, on his own motion, reopen a prior decision in the absence of an application therefor when in his judgment the interests of justice will be served thereby." Petitioner apparently does not seek reopening under "276.8(a) because this application would be untimely under that provision.

Former Commissioner Sobol's decision in Appeal of Burr, dated June 6, 1989, found that that appeal was untimely commenced by more than two-and-one-half years. Following that decision, petitioner neither sought reopening in a timely manner pursuant to "276.8(a), nor did she seek review of the decision by way of an Article 78 proceeding in the Supreme Court. Rather, on April 23, 1998, nearly nine years after the original decision, she asked me to annul the prior decision, claiming that "the interests of justice will be served thereby." I decline to do so.

The petition to reopen focuses almost entirely on matters involving the board of education and the hearing panel formed pursuant to Education Law "3020-a, i.e., on events which occurred prior to that panel's decision dated September 6, 1985, which found petitioner guilty of one charge of insubordination and imposed a fine amounting to one-tenth of petitioner's annual salary. The petition essentially attacks the "3020-a panel's findings and determination. It does not demonstrate that Commissioner Sobol's decision of June 6, 1989, was made under a misapprehension as to the facts, nor does it demonstrate that there is new, material evidence which was not available at the time of the original decision. The interests of justice would not be served by attempting to resurrect issues that were already stale when petitioner's first appeal was untimely commenced on December 20, 1988.

I find no basis for exercising my discretion under "276.8(c), and decline to do so.