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 New York City
Dept. of Educ., 45 Misc 3d 1221[A] at *3 [Sup
Ct, NY County, 2014]). Thus, the
assignment of a problem code is a “discrete act” that creates a real, concrete
injury (Appeal of J.C., 64 Ed Dept Rep, Decision No. 18,446).
Petitioner’s actual knowledge thereof began the 30-day timeframe for him to
commence an appeal to the Commissioner (id.). This time
limitation is not tolled until petitioners obtain a satisfactory explanation
for the actions about which they complain (Application to reopen the Appeal
of Martinez, 59 Ed
Dept Rep, Decision No. 17,831). Thus, petitioner has not established
grounds to reopen the prior decision in accordance with the standard set forth
in 8 NYCRR 276.8 (link is external).
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.