Application to reopen the Appeal of JAMES RANSOM, CHRIS FLAHERTY, CHRISTOPHER COOK, HANNAH REED, JEFFREY REED, and NORTH SHORE RESIDENTS OF THE ALLIANCE OF CONCERNED TAXPAYERS, INC., from action of the Board of Education of the Central Square Central School District, Superintendent Joseph Menard, and former members of the Board of Education Joseph Post, Stephen Fleury, David Bertrand and Scott Duggleby, regarding a school closing.

Decision No. 16,683

(November 10, 2014)

Ferrara, Fiorenza, Larrison, Barrett & Rietz, P.C., attorneys for respondents, Heather M. Cole, Esq., of counsel

KING, JR., Commissioner.--Petitioners seek to reopen Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647, which dismissed their challenge to the decision of the Board of Education of the Central Square Central School District ("respondent board") to close Cleveland Elementary School.  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).

Petitioners’ application to reopen is untimely.  Pursuant to §276.8 of the Commissioner’s regulations, an application to reopen must be made within 30 days after the date of the decision petitioner seeks to reopen.  The decision petitioners seek to reopen was rendered on August 18, 2014, but the instant application was not made until September 18, 2014, which is 31 days after the date of the decision.  Therefore, the application is untimely and must be denied.

Furthermore, petitioners have not established any basis for reopening the prior decision.  As noted above, §276.8 of the Commissioner’s regulations provides that applications to reopen 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 which was not available at the time the decision was made.  Petitioners have not made the requisite showing here.

In response to the dismissal of their appeal for lack of standing, petitioners now assert generally that they are parents, grandparents and/or taxpayers of the district. However, petitioners do not set forth any basis as to why their status as such would establish standing and, even if they did, I note that a reopening may not be used to augment previously undeveloped factual assertions and arguments in the previous appeal.

     In response to the dismissal of their appeal as untimely, petitioners merely attempt to reargue the issues and findings regarding timeliness as set forth in the decision.  This is not a sufficient basis to reopen an appeal.

     Likewise, with respect to the merits, petitioners reargue the position presented in their original appeal that the District administration was bound by certain prior motions of the board of education made and passed during the 2011-2012 school year to close buildings, redistrict and repurpose an elementary school building.  Furthermore, petitioners reargue the savings and other benefits that allegedly would be realized if the District had implemented the closings, redistricting and repurposing associated with the prior motions.  However, petitioners present no new and material evidence in regard to their contentions that was not previously available.  Rather, they merely reassert information that is contained in the record on appeal or that was readily available at the time petitioners commenced their appeal.

     In conclusion, I find that petitioners’ application to reopen consists of attempts to augment previously undeveloped factual and assertions and arguments, to advance new legal arguments, and to reargue certain issues presented in their appeal.  It is well settled that these are not bases for reopening an appeal (Application to Reopen the Appeal of Wolff, 52 Ed Dept Rep, Decision No. 16,391; Application to Reopen the Appeal of Thomas, 51 Ed Dept Rep, Decision No. 16,322).

THE APPLICATION TO REOPEN IS DENIED.

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