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No. 91-31

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BINGHAMTON for review of a determination of a hearing officer relating to the provision of educational services to a child with a handicapping condition

Appearances:

Coughlin and Gerhart, Esqs., attorneys for petitioner, Carl A. Kieper, Esq., of counsel

DECISION

Petitioner, the Board of Education of the City School District of the City of Binghamton, appeals from an interim order issued by an impartial hearing officer denying petitioner's request to admit into evidence at a hearing the transcript from a previous impartial hearing involving the same child, and the transcript from a hearing in the United States District Court for the Northern District of New York (Court) also involving the child. The appeal must be dismissed.

The child who is the subject of the hearing entered kindergarten in petitioner's schools in September, 1986, and was enrolled in a pre-first grade for the 1987-88 school year. In June, 1988, the child was referred by his teacher to petitioner's committee on special education (CSE), which recommended that the child be classified as learning disabled and that he be placed in a regular education first grade class for the 1988-89 school year. The CSE also recommended that the child receive speech therapy and resource room services.

In June, 1989, a subcommittee of the CSE considered the possibility of changing the child's classification to emotionally disturbed, and referred the matter to the CSE. In September, 1989, the CSE declined to change the child's classification, because it believed it needed a more current psychological evaluation. The CSE notified the parents that it would seek to have an additional evaluation performed. The parents of the child objected to a further evaluation of the child by school district employees. Despite the parents' objection, a school psychologist did evaluate the child on two occasions during the 1989-90 school year, while the child was in second grade. The parents obtained a temporary restraining order from the Court precluding the CSE from meeting on June 20, 1990, so as to afford the parents additional time to submit information to the CSE with regard to the child's program for the 1990-91 school year.

The parents also requested that an impartial hearing be held to review the use of the evaluations which the district's school psychologist had performed. During the pendency of that hearing, the child was enrolled in a regular third grade at petitioner's Roosevelt Elementary School, where he continued to receive speech therapy and resource room services, as well as counseling. An aide was assigned to remove the child from class, when necessary, and to supervise him in a "time-out" room, a practice which had been instituted in December, 1989.

The child's behavior, as reported by the school staff, deteriorated during the Fall of 1990. A meeting of the CSE was scheduled for December 5, 1990, for the purpose of considering a change in the child's placement. On December 4, 1990, the parents asked the hearing officer, who was hearing the case involving the evaluations performed by the school psychologist, to enjoin the CSE from meeting on the next day. The hearing officer declined to do so, on the ground that he lacked the jurisdiction to enjoin the CSE from meeting.

On December 5, 1990, the CSE met and recommended that the child's program be changed to a self-contained special education class located in petitioner's Horace Mann School. The child's parents did not attend the December 5 CSE meeting. On December 11, 1990, the board of education approved the recommendation of the CSE.

The parents appealed from the decision of the impartial hearing officer, and sought an order from the State Review Officer annulling the CSE's recommendation and/or precluding the board of education from implementing the recommendation until it could be reviewed in an impartial hearing. The parents' appeal was dismissed on the grounds of mootness and failure to exhaust their administrative remedy of a hearing on the merits of the self-contained class (Application of a Child with a Handicapping Condition, Appeal No. 90-25). The matter was moot, because on December 19, 1990, the board of education commenced a separate action in the Court, to obtain an order allowing it to change the child's program, notwithstanding the pendency provisions of Federal and State law (20 USC 1415 [e][3]; Section 4404 [4]). The Court granted a temporary restraining order allowing the child's program to be changed, as of January 4, 1991, and held an evidentiary hearing on January 11, 1991, with respect to the board of education's request for a preliminary injunction.

At the Court hearing, the attorney for the board of education and the then attorney for the parents agreed to stipulate to the facts about the child's behavior in school, as set forth in the affidavits of the child's teachers and other staff with personal knowledge of his behavior. In addition to those affidavits, the Court considered the testimony of the school district's Director of Special Education who is also the chairperson of the CSE, the teacher of the special class recommended by the CSE, a district staff development specialist who was a member of the CSE and two private psychologists who were knowledgeable about the child. In a memorandum decision and order dated March 5, 1991, the Court granted the board of education's motion for a preliminary injunction, allowing the child to be unilaterally placed on an interim basis in the class recommended by the CSE, pending the outcome of administrative proceedings under the Education Law, i.e., an impartial hearing. The issues before the Court were whether there was a substantial likelihood of injury to the child or other children if the child remained in a regular third grade class during the pendency of the hearing to review the appropriateness of the self-contained class (See, Honig v. Doe, 484 U.S. 305) and whether the self-contained class was more appropriate than the regular class as an interim placement.

The hearing which the parents had requested, to review the use of the psychological evaluation by the board's psychologist commenced in August, 1990, and after 10 days of hearing was completed on February 1, 1991. The 1300 page transcript of the hearing includes the testimony of the board's Director of Special Education, the school psychologist who performed the evaluation at issue, the child's second grade teacher, two building principals who were the CSE subcommittee chairpersons for the 1988-89 and 1989-90 school years, respectively, and the parents. In a decision dated August 12, 1991, the hearing officer held that parental consent to the re-evaluation of the child was not a prerequisite under Federal or State law and that the record provided ample support for the need to conduct a further evaluation of the child. The hearing officer also held that the CSE had failed to provide adequate notice of its intention to conduct a further evaluation of the child. The hearing officer, noting that the parents had unilaterally placed the child in a local private school for approximately one week in January, 1991 and had subsequently provided the child with instruction at home, directed the CSE to re-evaluate the child in the event that he was re-enrolled in the Binghamton public schools.

On or about December 14, 1990, the parents' then attorney requested that an impartial hearing be held to review the CSE's recommendation of December 5, 1990 that the child be placed in a special class. The hearing on that issue commenced on March 3, 1991, but was promptly adjourned because neither parent was present, although they were represented by an attorney.

On March 8, 1991, the child's father appeared with his attorney before the hearing officer, who asked the father whether he wished to waive his right to have the hearing conducted in his presence and appear through his attorney. The child's father stated that he waived his right to a personal appearance, but asked whether he could attend the hearing in the future. After being assured by the hearing officer that he could attend future sessions of the hearing, the father left the room where the hearing was held. The record reveals that the board of education's attorney read into the record a stipulation which he had made with the parents' attorney, by which it was agreed that the transcripts of and the exhibits introduced in the prior impartial hearing and the Court hearing of January 11, 1991 would be incorporated into the record of the second hearing, to be used as evidence by the hearing officer. The record further reveals that the hearing officer agreed to accept the documents into evidence as soon as they were offered by the attorney for the board of education.

At the next scheduled day of the hearing on April 12, 1991, the child's father advised the hearing officer that the attorney who had represented the parents in the prior hearing and the Court proceedings was no longer representing the parents in the current hearing. The hearing officer adjourned the hearing, to allow the child's parents time to retain another attorney.

When the hearing reconvened on May 3, 1991, the child's father informed the hearing officer that he wished to proceed without an attorney. The attorney for the board of education raised the issue of the stipulation to admit into evidence the transcripts and exhibits from the prior impartial hearing and Court proceeding. In response to a question from the hearing officer, the child's father stated that he would not agree to the stipulation, because he believed that what had occurred at the first impartial hearing and at the Court hearing was irrelevant to the issues in the second hearing. The hearing officer urged the child's father and the school attorney to discuss the matter further and attempt to arrive at an agreement.

On May 24, 1991, the school attorney advised the hearing officer that he had been unable to obtain the consent of the child's father to the introduction of the transcripts and exhibits into evidence, and then made a motion to have such documents admitted into evidence. The hearing officer reserved decision on the motion, and asked the parties to provide him with memorandum of law on their respective positions. At that point, petitioner had already presented the child's regular third grade teacher, his resource room teacher, a school psychologist and the principal of the Roosevelt Elementary School as witnesses in the current hearing. However, no testimony or evidence had been adduced as to specific program selected by the CSE at its December 5, 1990 meeting.

By letter dated July 22, 1991, the hearing officer advised the parties that he would not allow the introduction into evidence of the transcripts of the prior impartial hearing and Court proceeding, in the absence of a stipulation between the parents and the board of education. The hearing officer held that the parents should have the opportunity to cross-examine any witnesses presented by the board of education about the issues presented in the second impartial hearing. The hearing officer did agree to consider the exhibits from the prior hearing and Court proceeding, if offered by either party.

Petitioner asserts that the hearing officer erred in declining to enforce the stipulation between the former attorney for the parents and petitioner's attorney. Petitioner further asserts that, in any event, the hearing officer should take judicial notice of the records of the prior hearing and Court proceeding, in accordance with the provisions of 20 USC 1415 (e)(2). Finally, petitioner asserts that the hearing officer should be compelled to accept the transcripts and exhibits, in the interests of judicial economy and of the child.

Under both the common law and statute, the prior sworn testimony of a witness would not be admissible in a subsequent judicial action or proceeding, unless the witness was unavailable to testify in such action or proceeding, the testimony related to the same subject matter, and the party against whom it is offered had the right to fully cross-examine the witness in the prior proceeding (Shaw v. New York Elevated Railroad Co., 187 N.Y. 168; Fleury v. Edwards, 14 NY 2d 334; Section 4517 of the Civil Practice Law and Rules). Although petitioner asserts that one of the teachers who testified at the prior impartial hearing is now employed in another school district, there is no basis in the record before me to conclude that any of the witnesses in the prior hearing or Court proceeding are unavailable to testify in the present hearing.

With regard to petitioner's assertion that the hearing officer may take judicial or official notice of the records of the prior hearing and Court proceeding, I note that the concept of judicial notice of fact is usually limited to matters which are more or less universally known and not subject to reasonable dispute (Crater Club v. Adirondack Park Agency, 86 AD 2d 714, aff'd. 57 NY 2d 990). However, the Courts have, on occasion, taken judicial notice of the records of other cases in order to ascertain a fact missing from the record of the case which they are deciding (Casson v. Casson, 107 AD 2d 342; Schmidt v. Magnetic Head Corp., 97 AD 2d 151; Maggio v. State of New York, 88 AD 2d 1087; Merbert v. Merbert, 111 Misc. 2d 500). In this instance, petitioner is seeking to establish the appropriateness of the program selected by its CSE by substituting the extensive testimony of its employees at the prior impartial hearing and the Court proceeding, both of which were held to resolve somewhat different issues, for the testimony and other evidence it would need to provide in this hearing in order to meet its burden of proof. I find that this purpose is well beyond the limits of judicial notice of the records of other proceedings.

Petitioner's reliance upon the provisions of 20 USC 1415 (e)(2) is misplaced. The statute requires a court which is reviewing either a decision of a hearing officer or of a state review officer to "receive the records of the administrative proceedings". It also does not require the court to consider the records of hearings or proceedings other than which the court is reviewing.

Federal and State regulations expressly guarantee any party in an impartial hearing the right to confront and cross-examine witnesses (34 CFR 300.508 [2]; 8 NYCRR 200.5 [c][8]). Indeed, the right of confrontation and cross-examination is an essential element of due process of law in administrative matters, as well as criminal proceedings (Goldberg v. Kelly, 397 U.S. 254). A party may waive the right to confront and cross-examine witnesses and allow into evidence the transcript of a prior administrative proceeding (Kuen Hai Chen v. Ambach, 121 AD 2d 777, app. den. 68 NY 2d 610). However, I am constrained to find on this record that the child's parents have not waived their right to insist upon the confrontation and cross-examination of the witnesses in the present hearing which petitioner wishes to present through the transcripts in question. Although the parents' legal representative clearly and unequivocally stated his consent to the introduction of the disputed documents during the course of the hearing on March 8, 1991, it does not follow that respondents could not withdraw their consent in a timely manner before the documents were in fact proffered for admission into evidence. The record discloses that the documents had not been entered into evidence on May 3, 1991, when the child's father stated to the hearing officer that he opposed the admission of the transcripts and exhibits. Therefore, I must find that petitioner has not established any basis for overturning the decision of the hearing officer. Petitioner must, of course, be afforded the opportunity to complete its case by the introduction of testimony and documentary evidence relevant to the special class selected by the CSE. It will be for the hearing officer to initially determine the relevance of the evidence offered by the parties.

THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
September 5 , 1991 HENRY A. FERNANDEZ