Application to reopen the Appeal of GLEN W. JOHNSON from action of the Board of Education of the Yorktown Central School District regarding the rejection of a voter petition.

Decision No. 15,320

(October 26, 2005)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen the Appeal of Johnson, 44 Ed Dept Rep ___, Decision No. 15,206, regarding the decision of the Board of Education of the Yorktown Central School District ("respondent") rejecting a petition to place a proposition on the ballot at the district's May 2004 annual election. 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 Appeals of Sitaras, 44 Ed Dept Rep 107, Decision No. 15,112; Application to reopen the Appeal of a Student with a Disability, 42 id. 241, Decision No. 14,839; Application to reopen the Appeal of Osoris, 38 id. 273, Decision No. 14,031).

Petitioner alleges that the caption of the decision did not properly represent the nature of the appeal, that the decision was contradictory, ignored evidence and was not responsive to issues raised, and that I purportedly delayed the decision in order to render it moot.

Petitioner has not demonstrated that the decision was rendered under a misapprehension of fact nor has he presented any new or material evidence that was not available at the time the decision was made.  Essentially, he has attempted to reargue the original appeal because he disagrees with the outcome. It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application to reopen the Appeal of Kushner, 44 Ed Dept Rep 116, Decision No. 15,116; Application to reopen the Appeal of Satler, 41 id. 293, Decision No. 14,690; Application to reopen the Appeal of Tanzer, 40 id. 229, Decision No. 14,467).

With regard to petitioner's claim of delay, the appeal was dismissed as moot because a subsequent proposition passed by the voters accomplished the purpose underlying the petition rejected by the board that was the subject of petitioner's appeal. Nevertheless, the decision went on to state that the appeal would have been dismissed on the merits even if it were not dismissed as moot. Furthermore, there is no evidence that the decision was rendered in anything but the normal course of business.

THE APPLICATION TO REOPEN IS DENIED.

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