Application to reopen the application of ADRIANNE RICKSON for the removal of District Superintendent Anita Murphy et al.

Decision No. 18,358

(November 16, 2023)

ROSA., Commissioner.--Petitioner seeks to reopen Application of Rickson (63 Ed Dept Rep, Decision No. 18,347), which denied her application to remove certain school officers and employees from their positions with the Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services (“BOCES”). The application must be denied.

Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner.  The Commissioner will not grant an application to reopen absent a showing that: (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]).  An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).

Petitioner has not made this showing.  Much of the application merely reargues issues addressed in the underlying appeal.[1]  Although petitioner alleges new acts of retaliation that occurred on or about October 23, 2023, these discrete acts would have to be the subject of a new appeal under Education Law § 310 (see generally Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883).  Therefore, petitioner has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR 276.8.

THE APPLICATION IS DENIED.

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