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Decision No. 14,266

Application to reopen the appeal of ELIZABETH GORDON from action of the Board of Education of the City School District of the City of New York regarding a teacher rating.

Decision No. 14,266

(December 17, 1999)

Michael D. Hess, Corporation Counsel, attorney for respondent, Phyllis Calistro, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of Gordon (36 Ed Dept Rep 343, Decision No. 13,743), which dismissed her challenge of an unsatisfactory performance rating she received for the 1994-95 school year. 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 that was not available at the time the decision was made.

The appeal was dismissed on the merits. The Commissioner will not substitute his judgment for that of the Chancellor in appeals challenging unsatisfactory ratings, absent a showing of malice, prejudice, bad faith or gross error (Appeal of Bristol, 33 Ed Dept Rep 202, Decision No. 13,023). Based on the record before me, I found that petitioner failed to establish that the unsatisfactory rating lacked a rational basis or that the rating demonstrated malice, prejudice, bad faith or gross error (Appeal of Gordon, supra, at 345).

Petitioner’s evaluation indicated unsatisfactory ratings in no less than ten categories. Supporting documentation for the evaluation included four formal classroom observations, all rated unsatisfactory, and a letter following the principal’s visit to petitioner’s classroom, in which the principal admonished petitioner for doing paperwork rather than providing instruction. The Chancellor’s review included substantial testimony supporting the decision. I found the record presented a rational basis for petitioner’s rating. Additionally, I did not find any evidence of malice, prejudice, bad faith or gross error and accordingly, found no basis to substitute my judgment for that of the local school authorities.

Petitioner’s application for reopening is based upon alleged new and material evidence, which she asserts will demonstrate that the unsatisfactory evaluation was based on malice, prejudice, bad faith and gross error. Petitioner’s papers continuously assert that respondent acted with malice and in bad faith. However, in petitioner’s submissions, including late documents submitted after the petition, she restates facts presented in her original appeal and fails to demonstrate either new or material evidence related to the prior appeal or misapprehension of the facts. The fact that the original appeal was denied does not demonstrate any misapprehension of the facts, only that I disagreed with petitioner's characterizations and assertions. Moreover, the evidence submitted by petitioner with the instant application included at least 18 paragraphs of "proof" with information dating from 1996 and 1997. The original appeal regarded an unsatisfactory evaluation from the 1994-95 school year. Clearly, petitioner cannot demonstrate the "new" evidence from 1996 and 1997 is in any way relevant to her evaluation several years earlier. Accordingly, petitioner presents no new evidence and at best attempts to reargue the facts and issues previously presented. An application for reopening is not intended to provide an opportunity for reargument of a proper decision on the law (Application of Goldin, 37 Ed Dept Rep 603, Decision No. 13,938).