The State Education Department
State Review Officer

No. 96-70

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the William Floyd Union Free School District

Appearances:
Ehrlich, Frazer and Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

 

DECISION

        Petitioner purports to appeal from the denial by a hearing officer of petitioner's request that the hearing officer recuse himself from the hearing in this proceeding. Petitioner's request that the hearing officer recuse himself was premised upon her belief that respondent had not developed a rotational list of hearing officers in accordance with the requirements of Section 4404 (1) of the Education Law. The appeal must be dismissed for lack of jurisdiction.

        In a letter dated June 5, 1996, and addressed to the chairperson of respondent's committee on special education (CSE), petitioner asked that an impartial hearing be held to determine the appropriateness of the individualized education program (IEP) which the CSE had prepared for petitioner's son. Specifically, petitioner challenged the CSE's alleged failure to indicate in the IEP that petitioner's son should receive an instructional program during the Summer of 1996, and she requested that respondent reimburse her for the cost of certain services which she had obtained for the child. Petitioner's request for a hearing was received by respondent on June 7, 1996.

        On June 17, 1996, respondent appointed Mr. Stanley Abrams to be the hearing officer in this proceeding. A hearing was begun before Mr. Abrams on July 12, 1996. Petitioner asked Mr. Abrams to recuse himself. On August 29, 1996, Mr. Abrams recused himself from this proceeding. The record does not reveal the reason for petitioner's request, or Mr. Abrams' rationale for granting her request. On September 9, 1996, respondent appointed Mr. Harry Kershen to serve as the hearing officer in this proceeding.

        In a letter written to Mr. Kershen on September 20, 1996, petitioner asked the hearing officer to recuse himself, on the ground that respondent's CSE chairperson had allegedly "hand picked" the individuals whose names appeared on respondent's rotational list of hearing officers. Petitioner indicated that she had previously filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law regarding respondent's rotational list of hearing officers. By letter dated September 25, 1996, the hearing officer advised petitioner that he would not recuse himself, and that the hearing would resume on October 2, 1996, " ... unless I am directed by the Commissioner of Education, as a result of your appeal, to do otherwise" (Exhibit 12 to the Petition).

        On October 2, 1996, petitioner renewed her request that the hearing officer recuse himself. The hearing officer indicated that he had no knowledge of the manner in which respondent's rotational list of hearing officers had been prepared, and that he did not know the chairperson of respondent's CSE. He denied petitioner's recusal motion. Petitioner asserted that she was in the process of seeking a stay order from the Commissioner of Education. She asked the hearing officer not to proceed with the hearing until the Commissioner had ruled upon her request for a stay order. Respondent's attorney noted that the proceeding was not automatically stayed simply because petitioner was seeking a stay order from the Commissioner. However, respondent's attorney agreed to defer the hearing for a short period of time to afford the Commissioner an opportunity to rule upon petitioner's request for a stay order. The parties tentatively agreed that the hearing would resume on October 21, 1996, unless the Commissioner issued a stay order.

        The petition in this appeal is addressed to the Commissioner of Education, and it invokes his jurisdiction pursuant to Section 310 of the Education Law. However, the petition was referred to the Office of State Review because petitioner, who is not represented by counsel, initiated the appeal by serving respondent with a notice of intention to seek review, which is required to initiate an appeal to the State Review Officer (8 NYCRR 279.2). Upon review of the petition, I note that petitioner briefly refers to Mr. Kershen's refusal to recuse himself as the hearing officer, but that she seeks a general review of respondent's rotational list of hearing officers. For example, she asserts that: "This list consists only of White males whose reputations are of those who have almost always ruled in favor of school districts." Petitioner asks that respondent be instructed about how to appoint hearing officers, and that it be ordered to develop a new rotational list of hearing officers.

        Under the circumstances, I find that this appeal is not properly before me. The relief which petitioner requests is general in nature, and not specifically related to the hearing in this proceeding. I must also note that the record which is before me is not adequately developed to address factual issues, such as the extent, if any, of this hearing officer's ex parte conversations or other communications with the CSE chairperson about the hearing in this proceeding (Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 96-38). The hearing officer's refusal to recuse himself from this proceeding can be addressed in this forum at a later time, if petitioner chooses to appeal to the State Review Officer from the hearing officer's final decision in this matter. In view of my finding that this is an appeal to the Commissioner of Education under Section 310 of the Education Law, rather than an appeal to the State Review Officer under Section 4404 of the Education Law, I will return the papers in the appeal file to the Office of Counsel.

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
November 8, 1996 FRANK MUŅOZ