Application to reopen the appeal of J.C. from action of the New York City Department of Education regarding a personnel matter.

Decision No. 18,512

(October 18, 2024)

Muriel Goode-Trufant, Acting Corporation Counsel, attorneys for respondent, Conner Quinn, Esq., of counsel

ROSA., Commissioner.--Petitioner seeks to reopen Appeal of J.C. (64 Ed Dept Rep, Decision No. 18,446), which dismissed his appeal from a determination by respondent denying his request for security clearance.  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 poses two principal arguments as to why the original decision was rendered under a misapprehension as to the facts.[1]  First, he argues that “his unwillingness to cooperate with OPI or SCI” was justified because respondent inquired into a criminal case against him that was allegedly dismissed. 

The factual finding of which petitioner complains was based upon SCI’s “numerous, unsuccessful attempts” and OPI’s “four unsuccessful attempts” to contact petitioner.  Respondent described SCI’s efforts as follows:

SCI investigators attempted to contact Petitioner by leaving a message on his cell phone, by a certified letter, and by visiting the address given as [petitioner’s] residence. The address listed turned out to be a post office box, and Petitioner never responded to the cell phone message or the certified letter.

This non-responsiveness formed the basis of my finding.  Petitioner’s argument that “SCI never contacted” him or that respondent erred by not contacting him by email are without merit.[2]

Second, petitioner argues that he permissibly waited to challenge his problem code until he understood why it had been assigned.  “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Application of T.L., 64 Ed Dept Rep, Decision No. 18,474; see also Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  A problem code issued by respondent “triggers further review of [a] past employee’s application for re-employment” (Pepin v New York City Dept. of Educ., 45 Misc 3d 1221[A] at *3 [Sup Ct, NY County, 2014]).  Thus, the assignment of a problem code is a “discrete act” that creates a real, concrete injury (Appeal of J.C., 64 Ed Dept Rep, Decision No. 18,446).  Petitioner’s actual knowledge thereof began the 30-day timeframe for him to commence an appeal to the Commissioner (id.).  This time limitation is not tolled until petitioners obtain a satisfactory explanation for the actions about which they complain (Application to reopen the Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,831).  Thus, petitioner has not established grounds to reopen the prior decision in accordance with the standard set forth in 8 NYCRR 276.8.

THE APPLICATION IS DENIED. 

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