Petitioner sought to have the New York State Commissioner of Education reopen Decision Commissioner No. 18,682, which dismissed Petitioner's appeal from a determination of a Board of Education involving the Petitioner's application seeking an appointment to a position with the school district. Commissioner Betty A. Rosa ruled that Petitioner's application must be denied.
Pointing out §276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely by the Commissioner and are reopened at the discretion of the Commissioner, Dr. Rosa explained that an application to reopen a Decision of the Commissioner require a showing that:
(1) The original decision was rendered under a misapprehension as to the facts; and, or
(2) There is new and material evidence that was not available at the time the original decision was made.
In addition, Commissioner Rosa said that an application to reopen:
1. May not advance previously undeveloped factual assertions and arguments;
2. Advance new legal arguments, nor
3. Merely seek to reargue issues presented in the prior appeal.
Explaining that Petitioner had not met the standard for reopening the appeal as the underlying appeal was dismissed as premature since, "at the time it was commenced [Petitioner] remained an eligible candidate for an open position" with school district nor has Petitioner presented evidence that this conclusion rested upon a “misapprehension of fact” nor produced “new and material evidence” that would support a different outcome.
Dr. Rosa opined that it appears that Petitioner seeks to challenge school district's subsequent selection of a different candidate for the appointment to the position in question. Any challenge to this “discrete act,” however, “would have to be the subject of a new appeal under Education Law §310”.
Accordingly, the Commissioner concluded that Petitioner had not established grounds to reopen the appeal in accordance with the standard set forth in 8 NYCRR 276.8.
Click HERE to access the Commissioner's decision posted on the Internet.