Application to reopen the Appeal of MICHAEL P. THOMAS from action of the New York City Department of Education and J. David Jimenez, principal, regarding a personnel matter.

Decision No. 16,322

(December 29, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Celine Chan, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks to reopen the Appeal of Thomas, 50 Ed Dept Rep, Decision No. 16,193, which dismissed his petition challenging actions of the New York City Department of Education (“DOE”) and J. David Jimenez (“Jimenez”) (collectively “respondents”) regarding the placement of certain letters and documents in his personnel file.  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It 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 decision was made.  A reopening 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 (Application to reopen the Appeal of Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911; Application to reopen the Appeal of Zulawski, 47 id. 191, Decision No. 15,664).

In the underlying appeal, petitioner argued that the placement of letters in his personnel file constituted disciplinary action and he was therefore entitled to the procedural protections of Education Law §3020-a.  In his decision, Commissioner David M. Steiner rejected petitioner’s argument that the continuing wrong doctrine applied and dismissed the appeal as untimely.

In his application for reopening, petitioner asserts that Commissioner Steiner did not rule on his request for an order compelling respondents to cease placing letters in his file in violation of Education Law §3020–a.  Petitioner attempts to renew this request in his application, again arguing that the alleged conduct is a continuing wrong.

As noted above, the appeal was found to be untimely and it was therefore unnecessary for Commissioner Steiner to address petitioner’s request.  Additionally, I note that even if petitioner’s application to reopen were granted, his request would be denied.  Petitioner’s request was made in anticipation of additional letters being placed in his personnel file, and it constitutes a request for an advisory opinion.   The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). 

To support his claim that respondents placed disciplinary letters in his file in violation of Education Law §3020-a, petitioner attaches an “Alleged Corporal Punishment and/or Verbal Abuse Report of Investigation” form to his application.  Petitioner argues that the form’s instructions imply that “Education Law §3020-a charges are warranted only if the misconduct is of a serious or repetitive nature.”  However, the form states that it was revised on July 10, 2008 and petitioner, who served his underlying appeal on January 8, 2010, provides no explanation as to why he did not include this form with his petition.  Further, this additional documentation does not negate the finding that the underlying appeal was untimely.

Petitioner has not demonstrated that the decision in his underlying appeal was rendered under a misapprehension of fact, nor has he presented any new and material evidence that was not available at the time the decision was made.  Essentially, he is attempting to reargue the original application.  It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening (Application to reopen the Application of Gillen, 50 Ed Dept Rep, Decision No. 16,112; Application to reopen the Appeal of Wilson, 49 id. 377, Decision No. 16,055; Application to reopen the Appeal of T.L. and W.L., 47 id. 123, Decision No. 15,647).

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE.