New York State Commissioner of Education Betty A. Rosa, noting that the Petitioner's instant appeal sought to reopen for consideration the Commission's decision in Appeal of J.C. [4 Ed Dept Rep, Decision No. 18,446], which decision dismissed Petitioner's earlier appeal concerning a determination by Petitioner's employer denying Petitioner's request for a security clearance, ruled that the Petitioner's application in the instant appeal must be rejected.
Dr. Rosa's decision in the instant appeal is set out below.
Decisions of the Commissioner of Education
Decision No. 18,512
Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner. The Commissioner will not grant an application to reopen absent a showing that: (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]). An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).
Petitioner poses two principal arguments as to why the original decision was rendered under a misapprehension as to the facts.[1]
First, he argues that “his unwillingness to cooperate with OPI or SCI” was justified because respondent inquired into a criminal case against him that was allegedly dismissed.
The factual finding of which petitioner complains was based upon SCI’s “numerous, unsuccessful attempts” and OPI’s “four unsuccessful attempts” to contact petitioner. Respondent described SCI’s efforts as follows:
SCI investigators attempted to contact Petitioner by leaving a message on his cell phone, by a certified letter, and by visiting the address given as [petitioner’s] residence. The address listed turned out to be a post office box, and Petitioner never responded to the cell phone message or the certified letter.
This non-responsiveness formed the basis of my finding. Petitioner’s argument that “SCI never contacted” him or that respondent erred by not contacting him by email are without merit.[2]
Second, petitioner argues that he permissibly
waited to challenge his problem code until he understood why it had been
assigned. “It is actual knowledge of the facts underlying a claim that
begins the 30-day period in which to bring an appeal to the Commissioner” (Application
of T.L., 64 Ed Dept Rep, Decision No. 18,474; see also Appeal of
J.B., 62 Ed Dept Rep, Decision No. 18,245). A problem code issued by
respondent “triggers further review of [a] past employee’s application for
re-employment” (Pepin v
THE APPLICATION IS DENIED.
[1] Petitioner does not contend that there is new, relevant evidence that was unavailable at the time of his original appeal.
[2] As such, it is unnecessary to address petitioner’s argument that respondent impermissibly inquired into a prior arrest.