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Reopening an appeal following the promulgation of a decision by the Commissioner of Education

Reopening an appeal following the promulgation of a decision by the Commissioner of Education
Matter of Rocco N. Lanzilotta and Westbury Union Free School District, Decisions of the Commissioner of Education, Decision 15,911

Section 276.8 [8 NYCRR 276.8] of the Commissioner?s regulations provides for the reopening of an appeal previously decided by the Commissioner under certain conditions and circumstances.
The regulation essentially states that such applications are considered 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.

Further, the regulation provides that such a reopening may not be used to supplement previously undeveloped factual assertions and arguments, to advance new legal arguments or to reargue issues presented in the underlying appeal.

In response to Westbury?s application to reopen a prior decision by the Commissioner, the Commissioner said that he would not so reopen the matter because:

1. The correct standard of review was applied in the prior decision;

2. The board could have included certain evidence and made certain arguments in the appeal below, but did not do so; and

3. The board has failed to demonstrate that alleged new and material evidence was not available at the time the original decision was made.

Full post as published by New York Public Personnel Law on February 03, 2010 (boomark / email).