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Reargument of the issues presented in a prior appeal to the Commissioner of Education is not a basis for reopening the earlier appeal

Reargument of the issues presented in a prior appeal to the Commissioner of Education is not a basis for reopening the earlier appeal
Application of Janet C. Wilson to reopen an appeal from action of the Board of Education of the Harborfields Central School District, Decision No. 16,055

Janet C. Wilson asked the Commissioner to reopen her earlier appeal, reported as 47 Ed Dept Rep 448, Decision No. 15,750, which dismissed her challenge to the determination of the Board of Education of the Harborfields Central School District not to extend her employment contract.

The Commissioner declined to reopen the matter, citing §276.8 of the Commissioner?s regulations.

§276.8 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 initial decision was made.

Further, said the Commissioner, a reopening of an appeal may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.

In Decision No. 15,750 then Education Commissioner Mills found, among other things, that at most there was a technical violation of board policy with respect to providing Wilson a notice of a meeting and that this ?technical violation? did not entitle Wilson to an extension of her employment contract.

Although Wilson pointed out that New York State Supreme Court Judge Costello in Janet C. Wilson v. Bd. of Educ., Harborfields Central School Dist., Index No. 21707/07, subsequently concluded that the relevant notice ?was inadequate under the Open Meetings Law,? the adequacy of notice was considered by Commissioner Mills in her prior appeal.*

The Commissioner concluded that Wilson did not demonstrate that Commissioner Mill?s decision was rendered ?under a misapprehension of fact nor has she presented any new material evidence that was not available at the time the decision was made.?

Characterizing this appeal as an attempt to reargue the original appeal, the Commissioner said that ?It is well settled that mere reargument of the issues presented in a prior appeal is not a basis for reopening an appeal? and dismissed the appeal.

* In reaching this conclusion, the decision notes that Commissioner Mills made no determination whether school district had complied with the provisions of the Open Meetings Law (Public Officer?s Law §100 et seq.).

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16055.htm

Full post as published by New York Public Personnel Law on May 19, 2010 (boomark / email).