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No.  91-47

Application of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer appointed by the Board of Education of the City School District of the City of Port Jervis regarding the impartiality of the hearing officer

Appearances:

Cuddeback, Onofry, and Schadt, Esqs., attorneys for respondent, Robert A. Onofry, Esq., of counsel

DECISION

Petitioner appeals from the refusal by a hearing officer to recuse himself from a hearing requested by petitioner to review the recommendation of respondent's committee on special education (CSE) that petitioner's child not be classified as a child with a handicapping condition. The appeal must be dismissed.

On March 12, 1991, petitioner requested that her child be evaluated. The child was subsequently evaluated. On May 1, 1991, the CSE met with petitioner, and recommended that the child not be classified as having a handicapping condition. The appropriateness of that recommendation is not an issue which is before me in this appeal.

The record reveals that on September 5, 1989, respondent approved two individuals to serve as impartial hearing officers in future hearings. Upon receipt of a request from an attorney for a hearing on behalf of petitioner in August, 1991, respondent's director of special education notified the president of the board of education of the request, and recommended that the president select either of the two individuals whom respondent had previously approved. The president selected one of the two individuals to serve as the hearing officer.

At the outset of the hearing on September 19, 1991, a lay advocate assisting petitioner raised the issue of the impartiality of the hearing officer, by asking how he had been selected. Respondent's attorney, who was president of the board of education when it approved the two individuals as hearing officers in 1989, explained that a panel of hearing officers had been created, and that individuals were selected at random from the list of the two approved hearing officers by the current president of the board of education. Respondent's director of special education stated that he had advised respondent's superintendent about the selection of a hearing officer. However, the director was not questioned further about his involvement in the selection of the hearing officer. Respondent's attorney agreed to provide petitioner with copies of the minutes of the board of education meeting at which the two individuals were approved as hearing officers and a memorandum from the director of special education to respondent's president concerning the hearing in this appeal. The minutes and the memorandum have been entered into evidence.

At or shortly before the next day of the hearing on October 4, 1991, a copy of a notice of intention to seek review with regard to the impartiality of the hearing officer was served upon respondent. Petitioner elected to proceed with the hearing, rather than await the resolution of her appeal.

Petitioner's appeal was filed with the Commissioner of Education on October 15, 1991. It was referred to the State Review Officer on December 13, 1991, because the appeal necessarily involves the review of a determination of a hearing officer. The record was complete when the last document was received on January 7, 1992.

Petitioner challenges the procedure by which the hearing officer was selected and the impartiality of the hearing officer. With regard to the procedure, petitioner asserts that respondent's selection of only two white males from a list of over 300 individuals who have been certified as hearing officers by the State Education Department violates the United States and New York State Constitutions. Petitioner does not further articulate her constitutional claim, nor does she offer a basis for concluding that she has suffered direct injury as a result of the ethnicity or gender of the hearing officer selected to conduct the hearing involving the child. Consequently, I do not reach the merits of petitioner's constitutional claim (O'Shea v. Littleton, 414 U.S. 488).

Petitioner objects to the fact that respondent has obtained the resumes of the individuals which it has selected to serve as hearing officers, and suggests that all respondent need do is to select individual hearing officers from the list of persons who have been certified by the State Education Department as impartial hearing officers. However, State regulation requires each board of education to maintain a list of the names and resumes of the individuals from which it shall choose its hearing officers (8 NYCRR 200.2 [e]).

Petitioner also objects to the fact that boards of education are permitted to unilaterally select hearing officers without the involvement of the parents of the children who are the subjects of the hearings. I must note that the courts, as well as the United States Education Department, have concluded that the unilateral selection of hearing officers by boards of education does not violate either the Individual with Disabilities Education Act (20 U.S.C. 1400 et seq.) or Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) (Hessler v. State Board of Education of Maryland, 3 EHLR 553:262 [USDC, D. Md., 1983], aff'd. 700 F. 2d 134 [4th Cir., 1984]; OSEP informal opinion, EHLR 211:174; OCR informal opinion, 17 EHLR 432).

Petitioner challenges the process by which this hearing officer was selected, on the ground that respondent's present attorney was involved in the selection of the hearing officer because he was a member of the board of education when the board created its list of approved hearing officers. Petitioner asserts that the hearing officer is beholden to respondent's attorney for his appointment. The record reveals that the attorney was not involved in the selection of the hearing officer.

The participation of respondent's attorney in the actual selection of the hearing officer would create the appearance of impropriety (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138). The record reveals that the attorney's prior involvement in the approval of a list of hearing officers occurred almost two years before the hearing was convened. The hearing officer and the attorney have no professional or social relationship with each other. Although petitioner speculates that the hearing officer could feel grateful to respondent's attorney for having voted as a member of the board to approve him for service as a hearing officer, I must conclude that such speculation alone affords no basis for requiring the hearing officer to recuse himself.

Petitioner also asserts that the hearing officer, by virtue of the fact that he is the school attorney for a neighboring school district, is ineligible to be an impartial hearing officer. Federal and State regulations provide that any person who is an employee of a public agency which is involved in the education or care of the child, or who has a personal or professional interest which would conflict with his or her objectivity in the hearing may not serve as an impartial hearing officer (34 CFR 300.507 [a]; 8 NYCRR 200.1 [p]).

Petitioner relies upon the holding in Mayson v. Teague, 749 F. 2d 652 (11th Cir., 1984) for the proposition that no employee of any school district may serve as an impartial hearing officer in another school district. As I recently noted in Application of a Child with a Handicapping Condition, Appeal No. 91-46, neither Federal statute nor Federal regulation expressly precludes the employees of one local educational agency (school district) from serving elsewhere as impartial hearing officers. In the unique facts of Mayson, the court found that a majority of the panel of hearing officers had been university personnel who were replaced by local school personnel after the State Superintendent had received complaints from local superintendents about the prior hearing officers. The Circuit Court of Appeals then affirmed the conclusions of the District Court that school district personnel were "involved in the education or care of the child", notwithstanding the express terms of 20 U.S.C. 1415 (b)(2), and that they had conflicting personal or professional interests in the outcome of hearings.

The situation and facts here are not as described by the court in Mayson, supra. There is no evidence that individuals have been certified as hearing officers by the State Education Department or selected by school districts on the basis of their beliefs or leanings. Moreover, petitioner's reliance upon the Mayson decision is misplaced, because the hearing officer is not an employee of any school district, but is an attorney who represents a school district. I have previously declined to find that, as a matter of law, attorneys who represent school districts are precluded from serving as impartial hearing officers in other school districts (Application of a Child with a Handicapping Condition, Appeal No. 91-1; Application of a Child with a Handicapping Condition, Appeal No. 91-46). Petitioner's reliance upon my decisions in Application of a Child with a Handicapping Condition, Appeal No. 91-10 and Application of the Board of Education of the Pittsford Central School District, Appeal No. 91-14, is also misplaced. In both of those decisions, I found that there was an appearance of bias where the hearing officer was an employee of the school district which was also a client of an attorney who was representing another school district in a hearing before such hearing officer. In this instance, there is no relationship between the hearing officer and respondent's attorney.

Although I am unable to conclude as a matter of law that the procedure by which respondent selects its hearing officers violates the United States or New York Constitution or any statute, I must note that this appeal is one of three recent appeals in which it has been alleged or proven that a board of education has approved and maintained a list of hearing officers which does not include women or minorities (Application of a Child with a Handicapping Condition, Appeal No. 91-38; Application of a Child with a Handicapping Condition, Appeal No. 91-46). Petitioner's advocate asserts that she has participated in or observed over 30 impartial hearings since 1988, and that the hearing officer in each hearing was a white male. She also asserts that a relatively small number of individuals are repeatedly selected by boards of education. The advocate further asserts that, to her knowledge, there are many other individuals, including women and minority group members, who have been certified as hearing officers by the Education Department and are not selected.

The gender or ethnicity of an individual hearing officer may not per se afford a basis for concluding that the hearing officer is biased. However, the impartial hearing process is intended to resolve disputes between parents and school districts and it is imperative that parents have confidence in the integrity of the process. The recent appeals to which I have referred in this decision, in which lists of only two approved hearing officers have been maintained that do not include a broad representation of potential hearing officers, demonstrate growing distrust by parents in the process.

Section 4404 (1) of the Education Law provides that each board of education shall "appoint an impartial hearing officer to hear the appeal and make a determination within such period of time as the commissioner of education by regulation shall determine." Although the Regulations of the Commissioner of Education prescribe criteria for determining the impartiality of hearing officers (8 NYCRR 200.1 [p]) and require each board to maintain a list of the names and resumes of the hearing officers its selects (8 NYCRR 200.2[e]), they do not prescribe the manner in which hearing officers are selected. The record in this appeal fails to reveal what, if any, advice or guidance the State Education Department may have provided to boards of education in the establishment of lists of hearing officers and the selection of prospective hearing officers.

In view of the continuing controversy over the manner in which boards of education establish lists of hearing officers and the number of candidates on the lists, I will, by a copy of this decision, ask the Office of Special Education Services to investigate the process by which hearing officers are selected by boards of education. I urge that Office to consider appropriate remedies within State law, to assure that there will be a sufficiently large balanced group of individuals from which each board of education will be able to select hearing officers in a manner in which the board's choice is meaningful, reflective of the society in which we live, and which will inspire confidence in the entire hearing process.

THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
January 13, 1992 HENRY A. FERNANDEZ