Decision No. 12,656

(February 27, 1992)

Arthur F. Grisham, Esq., attorney for respondent

SOBOL, Commissioner.--Donald H. Belcer applies to reopen my decision in the Application of Jo Ann Robert, 30 Ed Dept Rep 378, May 28, 1991, so that I might reconsider his request for issuance of a certificate of good faith pursuant to Education Law '3811(1). The application must be denied.

Upon an application to reopen, there must be new, material evidence not available at the time of the original proceeding, or it must be shown that the original decision was rendered under a misapprehension of fact (8 NYCRR 276.8; Matter of Steenrod, 28 Ed Dept Rep 316; Matter of Grassel, 18 id. 310). Here, the applicant alleges that when he was served with the petition in the original appeal, he presented it to the board of education, and that the board, acting in executive session, authorized its attorney to represent him. The record before me, however, is devoid of any evidence indicating that the applicant ever gave the board written notice of the application for his removal. Nor is there any record of a board vote evidenced by minutes of a meeting or any other documents which would demonstrate that the board authorized its counsel to represent the applicant. This case is, therefore, distinguishable from Application of Beadle, 25 id. 267, in which board minutes showed that the board of education authorized legal counsel to represent the respondents. Under the circumstances, and in view of the fact that had such information existed, it would have been available at the time of the original proceeding, applicant Belcer has failed to demonstrate a basis for reopening.

Even if there were grounds for reopening, the applicant has not demonstrated that he complied with Education Law '3811 entitling him to a certificate of good faith. Applicant's argument that '3811 authorizes him to select his own counsel is also without merit. The provision referred to would be applicable if he could demonstrate that he notified the board in writing of the initiation of the proceeding and the board failed to appoint counsel within the ten day period specified in the statute. Since there is no proof in the record that the applicant notified the board of education in writing, I find the provision inapplicable in this case. Therefore, the application must be denied.

THE APPLICATION IS DENIED.

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