Decision No. 14,880
Application to Reopen the Appeal of JOSEPH P. SIMMS from action of the Board of Cooperative Educational Services for the First Supervisory District of Erie County; Donald A. Ogilvie, District Superintendent; Susan L. Borowick-Gibson; Darron E. Lazarro; Joseph J. Meyer, Jr. and the Williamsville Central School District regarding an involuntary transfer.
(May 30, 2003)
Stafford D. Ritchie, II, Esq., attorney for petitioner
David A. Hoover, Esq., attorney for respondents BOCES and Ogilvie
Hodgson, Russ, LLP, attorneys for respondent Williamsville Central School District, John Christopher, Esq., of counsel
MILLS, Commissioner.--Petitioner seeks to reopen Appeal of Simms, 42 Ed Dept Rep __, Decision No. 14,773, regarding the involuntary transfer of petitioner by the Board of Cooperative Educational Services for the First Supervisory District of Erie County and the District Superintendent. The application must be denied.
Section 276.8 of the Commissioner"s regulations 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.
Petitioner has not demonstrated that the 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 fact, petitioner submits no new and material evidence. The original appeal was dismissed as untimely. Petitioner essentially attempts to reargue the original appeal, including his assertions regarding timeliness. He asserts that certain facts, and the legal arguments based upon them, were not adequately considered by the Acting Commissioner and repeats his contention that respondents" actions constituted continuing wrongs subject to challenge at any time.
It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application of Satler, 41 Ed Dept Rep ___, Decision No. 14,690; Application of Tanzer, 40 id. 229, Decision No. 14,467).
THE APPLICATION TO REOPEN IS DENIED.