91-046

In July, 1991, petitioner requested that an impartial hearing be held to review the alleged discontinuation of physical therapy for petitioner's child, who was enrolled in a special education program of the Board of Cooperative Educational Services (BOCES) of Orange County. On July 25, 1991, the Board of Education of the Monticello Central School District appointed an attorney from Spring Valley, New York, who has been certified as a hearing officer by the State Education Department, to conduct the hearing.

At the commencement of the hearing on August 15, 1991, the hearing officer stated that he knew nothing about the facts of the case, nor did he know petitioner or respondent's attorney. The hearing officer further stated that he had not had any prior involvement with the Monticello Central School District, either as an impartial hearing officer or in any other capacity. The hearing officer's resume, a copy of which was entered into evidence at the hearing, reveals that the hearing officer has been the attorney for a Rockland County school district since 1971.

Petitioner's lay advocate questioned the hearing officer about his associations, if any, with the New York State School Board's Association and the Rockland County BOCES and Sullivan County BOCES. The hearing officer replied that his law firm was affiliated with the State organization, but that neither he nor his law firm had any involvement with either BOCES. The advocate stated that she had asked about the Sullivan County BOCES because petitioner wanted her daughter to receive services from that BOCES.

The advocate also questioned the hearing officer about the manner in which he had been selected by respondent to be the hearing officer. The hearing officer stated that in October, 1990, he had received a letter from an employee of the district, asking whether he was interested in being included on a list of hearing officers for the Monticello Central School District, and that by letter dated December 3, 1990, he had expressed his willingness to serve as a hearing officer. The advocate then requested copies of all the letters which the Board of Education had sent to prospective hearing officers and the responses which the Board of Education had received to such letters. The hearing officer ruled that the advocate's request for information about other individuals who were solicited to serve as hearing officers was irrelevant to the issue of his impartiality as a hearing officer, but pointed out to the advocate that she could obtain information from respondent by making a request under the Freedom of Information Law.

Petitioner's advocate reserved the right to reopen the issue of the hearing officer's impartiality, in the event she obtained additional information. Shortly thereafter, the parties and the hearing officer agreed to adjourn the hearing for one week, in order to complete the exchange of documents to be used at the hearing.

On November 4, 1991, petitioner filed this appeal with the Commissioner of Education. On December 13, 1991, it was referred to the State Review Officer 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 December 23, 1991.

Petitioner asserts that the hearing officer's personal and professional responsibilities, as well as the way in which he was chosen by the Board of Education, do not satisfy the impartiality requirements for hearing officers imposed by Federal and State regulations. With regard to the manner in which the hearing officer was selected, petitioner asserts that it was unfair for respondent to have created a preferred list of only two hearing officers from the more than 300 individuals certified as hearing officers by the State Education Department, because respondent had an opportunity to review in advance the qualifications and affiliations of the hearing officers while petitioner was excluded from the selection process. Petitioner further asserts that it is unconstitutional for respondent to have a list of only two hearing officers, both of whom are white males.

Petitioner has not offered any specific basis for finding that the hearing officer was biased because of his ethnicity or gender, and I do not reach the issue of the ethnicity or sex of the individuals whose names are on the respondent's list of hearing officers. State regulation requires each board of education to maintain a list of the names, with resumes, of certified hearing officers, from which the board of education shall choose impartial hearing officers (8 NYCRR 200.2 [e]). That requirement affords parents like petitioner the opportunity to review the experience and association of hearing officers.

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). Although school district employees who are likely to be witnesses at a hearing and school attorneys should not be involved in the selection of specific hearing officers (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138; Application of a Child with a Handicapping Condition, 30 id. 195), there has been no showing that respondent's attorney or any potential witness for respondent was involved in the selection of the hearing officer for the hearing in this appeal.

Petitioner asserts that the hearing officer is precluded from serving as an impartial hearing officer because he is involved in the education or care of the child. Federal statute provides, in material part, that

"No hearing shall be conducted by an employee of such agency or unit involved in the education or care of the child" (20 U.S.C. 1415 [b][2]).

Petitioner's assertion is premised upon her belief that each BOCES is part of the Education Department. That premise is incorrect (Section 1950, New York State Education Law). Moreover, the record reveals no nexus between the hearing officer and the BOCES of which the hearing officer's school district is a component, or any other BOCES. I therefore find that petitioner has not demonstrated that the hearing officer was or is involved in the education or care of petitioner's child.

Petitioner also asserts that the hearing officer had a conflicting professional interest in the outcome of the hearing because he has a fiduciary obligation to the school district for which he is the attorney and to the New York State school system to which such district belongs.

Both Federal and State regulations require that an individual conducting an impartial hearing have no personal or professional interest which would conflict with his or her objectivity in the hearing (34 CFR 300.507 [a][2]; 8 NYCRR 200.1 [p][1]). State regulation also addresses the issue of involvement with a BOCES:

"... An impartial hearing officer shall:

(1) be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed ..." (8 NYCRR 200.1 [p][1]).

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. Neither Federal statute or 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.

I need not reach the issue of whether employees of school districts should be barred from serving as impartial hearing officers. In this instance, the record reveals that the hearing officer is an attorney in private practice, who has a school district among his clients. There is no evidence that the attorney is an employee of the school district which he represents. In Application of a Child with a Handicapping Condition, Appeal No. 91-1, I declined to find, as a matter of law, that school district attorneys are precluded from serving as impartial hearing officers in other school districts, and I decline to do so in this appeal. There is no evidence of actual bias of the hearing officer.

Since I have found no basis to require the removal of this hearing officer, I do not reach petitioner's assertion concerning the other individual whose name appears on respondent's list of hearing officers.

THE APPEAL IS DISMISSED.