Decision No. 13,219

(July 14, 1994)

SOBOL, Commissioner.--This is an application to reopen Appeal of Bach, 33 Ed Dept Rep 452 in which I refused to annul a resolution adopted by respondent. That resolution authorized the use of district funds to pay for legal services in connection with litigation. Petitioner's request for an order denying the issuance of a good faith certificate pursuant to Education Law '3811 in that litigation was also rejected. This application must likewise be denied.

In the original appeal, petitioner contended that the resolution must be annulled because in adopting it, respondent failed to comply with the technical requirements set forth in Education Law '3811. That contention was rejected because the record before me established that respondent had complied with the prerequisites of Education Law '3811. In the original appeal, petitioner's request for an order denying the issuance of a good faith certificate in connection with pending litigation was also denied because the action in question was pending in Supreme Court, Ulster County, and the issue of whether individuals acted in good faith could only be determined by that Court.

I now deny petitioner's application to reopen because he has not demonstrated sufficient grounds to warrant such relief. Under 8 NYCRR 276.8, applications to reopen are addressed solely to the discretion of the Commissioner. Such applications 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 of the original decision.

Petitioner does not present any new and material evidence which was not available at the time of the original decision. Instead, he contends that the decision was rendered under a misapprehension of the facts. In particular, petitioner argues that the Commissioner misapprehended that there are really three defendants -- an individual board member, the board of education and the Saugerties Central Schools -- who were named as defendants in the above-referenced pending litigation. In Appeal of Bach, reference is made to two defendants. Petitioner does not specify how his contention affects the outcome of his original appeal. In any event, petitioner's contention ignores the fact that the district and its governing body, the board of education, are in fact the same legal entity. Accordingly, there are only two separate defendants in that action.

The balance of this application is merely an expanded statement by petitioner that he disagrees with the original decision and seeks to reargue the issues presented in the original appeal. However, an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Maloney, 33 Ed Dept Rep 391; Application of Impellizzeri, 32 id. 295; Application of Burke, 28 id. 205).

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPLICATION TO REOPEN IS DENIED.

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