Application of a CHILD WITH A HANDICAPPING CONDITION, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hyde Park Central School District
Neal Howard Rosenberg, Esq., attorney for respondent
Petitioner appeals from the action of a hearing officer in adjourning a hearing to afford respondent an opportunity to provide evidence concerning the manner in which the hearing officer had been appointed, and in not rendering a decision within 45 days after petitioner's request for a hearing. The appeal must be dismissed.
On or about September 8, 1992, petitioner requested that an impartial hearing be held to review the content of, and the manner in which, an individualized education program (IEP) had been prepared for the child on July 29, 1992, by respondent's committee on special education (CSE). Petitioner offered to withdraw her request, if her dispute with the CSE could be resolved to her satisfaction. Although respondent board of education met on September 10, 1992, there is no evidence in the record of the board's consideration of petitioner's request for a hearing.
In a memorandum dated September 11, 1992, respondent's superintendent of schools advised the members of the board of education that the president of the board of education would appoint the hearing officer, in response to petitioner's request for a hearing. Attached to the superintendent's memorandum were copies of correspondence between petitioner and respondent's president, relating to petitioner's request to meet with respondent in executive session. The superintendent stated his understanding of respondent's desire to resolve the matter without a hearing, but pointed out that it would be imprudent to defer the selection of a hearing officer. In his memorandum, the superintendent referred to a resolution adopted by respondent on May 14, 1992, by which respondent delegated the authority to appoint hearing officers to the president of the board of education, under certain circumstances. The resolution reads, in material part, as follows:
"WHEREAS, the Board of Education of the Hyde Park Central School District believes it is important to appoint an impartial hearing officer as quickly as possible for the benefit of all concerned; and,
WHEREAS, the Hyde Park Central School District Board of Education only meets from time to time;
NOW, THEREFORE, BE IT RESOLVED, that, if an impartial hearing officer needs to be appointed prior to the next scheduled meeting of the Hyde Park Central School District Board of Education, the Hyde Park Central School District Board of Education hereby designates the President of the Hyde Park Central School District Board of Education, or in his or her absence from the county, the Vice President, and delegates to such person or persons the authority to act on behalf of the Hyde Park Central School District in the appointment and designation of an impartial hearing officer to hear all matters in relation to issues pertaining to handicapping conditions as more fully set forth in state and federal law and state and federal regulations. If an impartial hearing officer is appointed by the above provisions, the name of the hearing officer appointed and the circumstances requiring the quick appointment are to be provided to the Board of Education by their next regularly scheduled meeting."
By letter dated September 22, 1992, the hearing officer in this matter advised petitioner that he had been appointed as the hearing officer, and that the hearing was scheduled to commence on October 21, 1992. In a handwritten note dated October 2, 1992, petitioner requested that the hearing be rescheduled, because she would not be available from October 20 through November 15, 1992. The hearing was rescheduled, and commenced on November 24, 1992.
At the outset of the hearing, the hearing officer stated that he understood that he had been appointed by respondent's president from a list of hearing officers who had been previously approved by respondent. The hearing officer further stated that he had received a telephone call from the school district clerk advising him of his selection as the hearing officer, but had not received any written confirmation of his appointment.
In response to queries by petitioner concerning the manner in which the hearing officer had been appointed, respondent's attorney introduced into evidence copies of respondent's May 14, 1992 resolution and the superintendent's September 11, 1992 memorandum to the members of the board of education. The school district clerk testified that she could not recall how respondent's president had obtained the hearing officer's name or selected the hearing officer. The clerk denied having advised the hearing officer of his appointment. However, the district clerk testified that the selection of the hearing officer by the president had been discussed by respondent, in executive session at its meeting on September 24, 1992. In colloquy at the hearing, the CSE chairperson stated that respondent's president had approved the hearing officer's appointment "in discussion with the superintendent and myself" (Transcript, page 16). The record discloses that respondent's president was not available to testify at the hearing.
Petitioner sought an interlocutory ruling from the hearing officer that respondent had failed to establish that the hearing officer had been validly appointed. Petitioner also sought a ruling that respondent had waived its right to contest any of her assertions on the merits of her case, because respondent failed to assure that a written decision of the hearing officer would be rendered within 45 days after her request for a hearing, as required by Federal and State regulations (45 CFR 300.512 [a]; 8 NYCRR 200.5 [c]). The hearing officer observed that petitioner had agreed to the adjournment of the hearing, and reserved decision on her request for a ruling on the validity of his appointment. The hearing officer adjourned the hearing until January 20, 1993, to, in part, allow respondent to produce additional evidence on the manner in which the hearing officer had been selected.
Petitioner asserts that the hearing officer erred in not recusing himself from the hearing, because respondent failed to establish that the hearing officer had been validly appointed and the record discloses that the superintendent of schools may have participated in the hearing officer's selection. She requests a ruling that the hearing officer was not impartial, as well as a determination that respondent and its employees violated the provisions of the Individuals with Disabilities Education Act (20 USC 1401 et seq), Section 504 of the Rehabilitation Act of 1973 (29 USC 794) and Part 200 of the Regulations of the Commissioner of Education. Petitioner further requests that proceedings for the removal from office of the members of the board of education be instituted under Section 306 of the Education Law.
Respondent asserts that the hearing officer was validly appointed, and that it is premature to decide the issue because the hearing has not been concluded. Respondent further asserts that the matter will, in any event, be moot because petitioner intends to relocate to Rhode Island. In support of its latter assertion, respondent has submitted a written request by petitioner for respondent to release the child's records to the public schools of Cranston, Rhode Island. The request was dated December 7, 1992. Respondent has also submitted a copy of a page from a notebook by which petitioner and the child's teacher communicate, in which petitioner advised the child's teacher that the child would no longer attend school after December 23, 1992. While petitioner has not denied respondent's allegation that she intends to relocate from Hyde Park Central School District, she is not required by rule to admit or deny the allegation.
It is well settled that a parent may challenge the qualifications of a hearing officer, but should do so at the outset of a hearing so that the hearing officer can decide whether to recuse himself or to proceed with the hearing (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 240; Application of a Child with a Handicapping Condition, 31 id. 65). An appeal may be taken to the State Review Officer from a hearing officer's refusal to recuse himself (Application of a Child with a Handicapping Condition, Appeal No. 91-45; Application of a Child with a Handicapping Condition, Appeal No. 91-46; Application of a Child with a Handicapping Condition, Appeal No. 91-47).
In this instance, the issue of the hearing officer's impartiality turns upon the manner in which he was appointed and the extent, if any, to which the superintendent of schools and the CSE chairperson were involved in the selection of the hearing officer. A board of education may not delegate its duty to appoint hearing officers to its superintendent of schools (Application of a Child with a Handicapping Condition, Appeal No. 92-32). Allowing school district employees who may be called as witnesses or who were otherwise involved in the matters to be reviewed by a hearing officer to be involved in the hearing officer's selection creates an appearance of impropriety which should be avoided (Application of a Child with a Handicapping Condition, Appeal No. 92-25).
The evidence adduced at the November 24, 1992 hearing suggested, but did not establish, that respondent's president had selected the hearing officer, pursuant to respondent's prior delegation of authority to make such appointments. The CSE chairperson's brief comment that respondent's president had discussed the hearing officer's appointment with the chairperson raises the possible appearance of impropriety in the selection of the hearing officer. Under the circumstances, it was incumbent upon respondent to provide further evidence about the hearing officer's appointment. On the present record, neither the hearing officer nor I could determine whether the hearing officer had been validly appointed. Therefore, I find that petitioner's request for a determination of this issue is premature (Application of a Child with a Handicapping Condition, Appeal No. 91-22).
Although I concur with the hearing officer's determination to obtain additional evidence about his appointment before ruling upon petitioner's request that he recuse himself, I am constrained to point out that the approximate two-month delay before such evidence is to be adduced appears to be unwarranted. Notwithstanding petitioner's request for a rescheduling of the initial date of the hearing, respondent and the hearing officer have an obligation to ensure that the due process proceeding is completed promptly (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c]).
I have considered petitioner's other assertions, and find them to be without merit.
THE APPEAL IS DISMISSED; and
THE MATTER IS REMITTED TO THE HEARING OFFICER TO EXPEDITIOUSLY OBTAIN ADDITIONAL EVIDENCE CONCERNING HIS APPOINTMENT.
1I do not reach the issue of the alleged mootness of the matter because a determination of that issue is premature. Respondent's assertion is premised upon its belief that when the hearing reconvenes on January 20, 1993, petitioner and her child will no longer be residents of respondent's school district. If petitioner and the child remove their residence from respondent's school district, respondent would not longer be obligated to provide the child with a free appropriate public education under Federal or State law (20 USC 1414 [a]; Sections 4401  and 4402 [a] of the New York State Education Law). However, the record is inadequate to establish that petitioner intends to permanently change her residence, which would afford a basis for finding that there is no reasonable expectation that the controversy between petitioner and respondent about the appropriateness of the child's program will arise again (Christopher P. by Norma P. v. Marcus, 915 F 794 [2d Cir., 1990]; Application of a Child with a Handicapping Condition, Appeal No. 91-45). Even if petitioner does permanently change her residence, her claim of procedural unfairness may not be moot (Heldmanv. Sobol, 962 F. 2d 148 [2d Cir., 1992]; Hiller v. Bd. of Ed. Brunswick CSD, 687 F. Supp. 735 [N.D.N.Y., 1988]), nor would her claim for tuition reimbursement be moot (Gerasimou v. Ambach, 636 F. Supp. 1504 [E.D.N.Y., 1986]).