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No.  91-45

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Tri-Valley Central School District

Appearances:

Michael R. Gottlieb, Esq., attorney for respondent

DECISION

Petitioners appeal from the determination of a hearing officer denying their motion that he recuse himself and denying their motion for summary judgment directing respondent's committee on special education (CSE) to prepare an individualized education program (IEP) for the 1991-92 school year for their child. The appeal must be dismissed.

The record before me is extremely limited, because virtually no evidence was adduced at the hearing. The affidavit of respondent's attorney reveals that petitioners' child had attended respondent's schools for several years, but withdrew from school in October, 1990. The child was independently evaluated at the Mount Sinai Medical Center in the Spring of 1991. By letter dated May 23, 1991, the chairperson of the CSE invited petitioners to attend a CSE meeting to be held on June 14, 1991, for the purpose of preparing a Phase I IEP for the child for the 1991-92 school year. Petitioners did not attend that meeting, at which the CSE recommended that the child be classified as learning disabled. The CSE further recommended that the child be mainstreamed for ninth and tenth grade subjects and attend a Board of Cooperative Educational Services for a vocational program, with resource room services and counseling once per week.

On June 17, 1991, petitioners requested an impartial hearing. Although they did not identify the issues they wished to raise, their advocate had previously advised respondent's attorney that they would challenge the use of a multi-phase IEP. A hearing was held on July 10, 1991. After some preliminary discussions about the way in which the hearing would be held, the hearing officer stated that he had no relationship with any employee of respondent and would entertain any motion or objection to his service as the hearing officer. Petitioners' advocate requested a voir dire of the hearing officer. During the voir dire, the hearing officer acknowledged that he was an employee of the Monticello Central School District. The hearing officer further acknowledged that a representative of petitioners had orally asked him to provide petitioners with a copy of his vita or resume, but he had not furnished the requested document. When asked why he had not provided his vita, the hearing officer replied:

" The reason is quite clear; in that I am on the list as a certified hearing officer, I was duly appointed as a hearing officer and intend to proceed within that role."

Although the hearing officer advised the advocate that he was not prepared to provide a copy of his vita, he stated that petitioners' advocate could continue to question him in the voir dire. The advocate asked the hearing officer whether he had ever asked other hearing officers or employees of school districts about the organization for which the advocate worked as executive director, or whether he had ever expressed concern about the function of that organization. The hearing officer declined to respond to either question, on the ground that they were not relevant. The advocate then made a motion that the hearing officer recuse himself, which the hearing officer denied.

After a brief discussion of the issue of the manner in which an IEP should be developed, petitioners' advocate asked the hearing officer to grant summary judgment nullifying the child's IEP which was prepared at the June 14, 1991 CSE meeting and directing the CSE to prepare a single stage IEP. The advocate stated that there was no dispute as to the facts and that petitioners would not present any evidence. The advocate also asserted that the hearing officer could rule on issues of law, without evidence as to the dispute between the parties.

The hearing officer urged that the hearing go forward. With respect to the issue of how an IEP should be developed, the hearing officer stated:

" The issue in hand in terms of the IEP is to be dealt with as a separate procedural matter I think falls out of the venue of the chosen course of the hearing."

Shortly thereafter, the hearing officer stated that the hearing should be directed towards the needs of the child, rather than a discussion of applicable law and regulation, and asked the parties whether they were ready to proceed with the hearing. The parties ultimately agreed that petitioners would meet with the CSE on or before August 2, 1991, in an attempt to resolve their differences, and would report the results of the meeting to the hearing officer. The hearing was then adjourned.

The parties were unable to resolve their differences. On August 28, 1991, the hearing officer informed petitioners' advocate in writing that he would not grant the advocate's request to defer the resumption of the hearing until October in order to accommodate the advocate's schedule. In his letter to the advocate, the hearing officer alluded to his responsibility as a hearing officer to consider the appointment of a surrogate if he found that the parents' interests were inconsistent with those of the child. On August 28, 1991, the hearing officer also wrote a letter to petitioners, advising them that the hearing would resume on September 19, 1991. On the same day, the advocate advised the hearing officer in writing that an appeal would be taken to the Commissioner of Education pursuant to Section 310 of the Education Law, because of the hearing officer's rulings in the case.

On September 9, 1991, this appeal was filed with the Commissioner of Education. Petitioners did not seek an order staying the resumption of the hearing on September 19, 1991. Instead, petitioners withdrew their request for an impartial hearing on September 17, 1991. However, petitioners did not withdraw this appeal. On November 26, 1991, this appeal was referred to me by the Office of Counsel of the State Education Department, because petitioners appeal from the determination of a hearing officer with respect to their motions to recuse and to grant summary judgment (8 NYCRR 276.10).

Petitioners seek an order compelling respondent to appoint another hearing officer. They challenge the impartiality of the hearing officer at the July 10, 1991 hearing, on the grounds that the hearing officer erred in refusing to provide them with a copy of his vita and in refusing to answer their advocate's questions concerning his attitude about the advocate's organization. They further assert that the hearing officer demonstrated a lack of impartiality, by stating his intention to sequester the witnesses at the hearing and by reading prepared remarks into the record. Petitioners claim that the hearing officer's reference in his August 28 letter to the possibility of appointing a surrogate parent was an attempt by the hearing officer to intimidate them. Petitioners also assert that the hearing officer erred in declining to grant their motion for summary judgment.

Respondent raises the threshold issue of mootness, in view of the fact that petitioners have withdrawn their request for a hearing. Respondent asserts that there is no basis for reviewing whatever preliminary rulings the hearing officer made prior to their request for the termination of the hearing.

Section 4404 (1) of the Education Law provides that an appeal to the State Review Officer will lie from any determination of an impartial hearing officer. However, the State Review Officer is not required to determine issues which are no longer in controversy or make a determination which will have no actual impact upon the parties. The immediate question is how, if at all, have petitioners' rights been affected by the hearing officer's refusal to recuse himself or to grant petitioners' motion for summary judgment in a hearing which has now been terminated by petitioners' withdrawal of their request for a hearing. Once the party who has requested a hearing withdraws the request for the hearing, the hearing must terminate and the hearing officer may not render a decision upon the issues raised at the hearing (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 158). In this proceeding, the hearing was terminated before all the evidence had been adduced upon which a decision of the hearing officer could have been based, and the hearing officer did not render a decision upon the merits of petitioners' claim with respect to their child's IEP. Petitioners had the right to appeal from the refusal of the hearing officer to recuse himself, in order to obtain a decision as to whether the hearing officer should continue as hearing officer at the hearing. While it is clear that the hearing officer should have answered the questions posed by petitioners' lay advocate in her attempt to adduce testimony that might show prejudice by the hearing officer, the questions of whether the hearing officer lacked the requisite impartiality to continue with the hearing or should have granted the summary judgment motion are academic and moot, in view of petitioners' subsequent withdrawal of the request for the hearing.

Even where a determination of an appeal would not directly affect the rights of the parties, a decision may nevertheless be appropriate, if there is a likelihood of repetition of the dispute between the parties, the issue would typically evade review, or the appeal presents significant questions which have not been previously passed upon (Matter of Hearst Corp. v. Clyne, 50 NY 2d 707). However, this appeal does not meet any of these criteria. There is no basis upon which I may assume that petitioners will request that another hearing be held and that respondent will again appoint the hearing officer in question to conduct the hearing. If petitioners renew their request for a hearing and respondent appoints the same hearing officer, petitioners will have the opportunity to challenge the impartiality of the hearing officer at the outset of the new hearing and to appeal from a refusal to recuse. The issue may not evade review. With respect to the underlying question about the child's IEP which petitioners raise, that issue is moot by virtue of the withdrawal of the request for a hearing by the petitioners.

Finally, while I do not determine whether the hearing officer was biased, I will point out to the parties that the resume which petitioners sought from the hearing officer should be on file with respondent. State regulation requires each board of education to maintain a list of the names and resumes of the certified hearing officers from which the board will appoint hearing officers (8 NYCRR 200.2 [e][1]).

THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
December 10 , 1991 HENRY A. FERNANDEZ