Decision No. 12,899

(March 29, 1993)

SOBOL, Commissioner.--This is an application to reopen my decision in Appeal of Bach (32 Ed Dept Rep 273), in which I dismissed a petition challenging a bond vote on procedural and substantive grounds. For the reasons set forth herein, this application must also be denied.

In the original appeal, petitioner contended that respondent made a videotape and distributed a newsletter designed to encourage voters to support a bond issue in contravention of Phillips v. Maurer, 67 NY2d 672, 499 NYS2d 675. He requested that I nullify the December 11, 1991 election, or, in the alternative, guarantee that the resulting taxpayer obligation would be only $4.7 million. I dismissed the petition because it was untimely, and because petitioner failed to show that the alleged misconduct affected the outcome of the vote.

Petitioner has not demonstrated sufficient grounds to warrant reopening. Section 276.5 of the Regulations of the Commissioner of Education 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 a decision was rendered under a misapprehension of the facts or that there is new and material evidence which was not available at the time the original decision was made.

Petitioner alleges that my decision should be reopened because it was rendered under a misapprehension of fact. In support, he asserts that had I accepted invoices of payments for the video and the newsletter into the record, I would have had all the proof of his allegations that I needed. These documents were returned to petitioner and not accepted, as they were submitted improperly as new material having no bearing on the original petition. Even if they had been accepted, they supply evidence that the video and the newsletter were paid for by respondent, not that the voters were mislead by the contents. My decision stated that the video accurately reflected the $9.987 million to be bonded, not the $4.7 million petitioner alleged it stated. Further, petitioner submitted no proof that anyone who voted for the financing would have voted differently, but for the alleged misleading information.

Additionally, petitioner alleges that I misunderstood the relief he requested, which was not to nullify the voter approval, but to declare that the taxpayer obligation would not exceed $4.7 million. This relief cannot be provided, because building aid will be awarded in amounts that accord with formulas adopted by the State Legislature, upon the filing and approval of the appropriate documentation. Petitioner also asserts that I misunderstood the relief he requested because he contends that it is not the merits of the bond vote he is contesting, but only misconduct by respondent. In essence, this is a request for an advisory opinion as to whether the dissemination of this video and newsletter constitute misconduct, and the Commissioner does not issue advisory opinions (8 NYCRR '275.10; Application of Saeger, 32 Ed Dept Rep 200).

Furthermore, the petition was dismissed as untimely pursuant to 8 NYCRR '275.16, because it was initiated more than seven months after the December 11, 1991 bond vote. This application alleges no misapprehension as to the facts or new evidence upon which I should overturn my decision on the grounds of untimeliness.

THE APPLICATION IS DENIED.

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