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Decision No. 14,467

Application to reopen the appeal of ERNEST TANZER from action of the Board of Education and the Superintendent of the West Irondequoit Central School District regarding a bond proposition vote.

Decision No. 14,467

(September 25, 2000)

Alfred L. Streppa, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of Tanzer (39 Ed Dept Rep ___, Decision No. 14,384), which dismissed his challenge to the outcome of a capital project and bond proposition election conducted by the Board of Education of the West Irondequoit Central School District on December 7, 1999. 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.

In the underlying appeal, petitioner claimed that respondents had published erroneous information concerning the anticipated tax consequences of a proposed capital project. The appeal was dismissed on the merits. I noted that, on the record before me, I was unable to determine whether the anticipated tax impact figure calculated by respondents or by petitioner was the correct figure. However, I concluded that a determination of the correct calculation was immaterial, because petitioner had presented no evidence whatsoever that respondents' publication of allegedly incorrect information had any effect on the outcome of the election.

In this application to reopen the appeal, petitioner presents additional information regarding the calculations used by respondents to determine the anticipated tax consequences of the proposed capital project. Petitioner then seeks to reargue that his own calculations were correct, and that respondents had presented incorrect information to mislead district voters into approving the capital project. He does not seek the original relief, that the election approving the project be nullified, but instead requests that I direct respondent board to inform the community that its published tax consequence information was incorrect and publish a corrected figure, and that I admonish the board not to present knowingly inaccurate information to the voters in the future.

Petitioner's application for reopening is based upon allegedly new and material evidence that he asserts will demonstrate that the figure published by respondents is incorrect. However, this issue was deemed irrelevant in the original decision. Petitioner makes no showing that my original determination was rendered under a misapprehension of fact concerning the lack of proof that the published tax consequence figure had any impact whatsoever on the outcome of the election, nor does petitioner present new and material evidence to establish any such impact on the outcome. Accordingly, petitioner presents no grounds to reopen the issues upon which the prior decision was based. An application for reopening is not intended to provide an opportunity for mere reargument of a proper decision on the law (Application of Gordon, 39 Ed Dept Rep 384, Decision No. 14,266).