94-014

Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request that the hearing officer recuse herself because of the way in which she was appointed as the hearing officer. The appeal must be dismissed.

Petitioner is the father of a three-year old child. Respondent's committee on preschool special education (CPSE) has recommended that the child be classified as autistic and that he be enrolled in the Pouch Center Early Childhood Program on Staten Island. Petitioner requested that an impartial hearing be held to review the CPSE's recommendation. Although petitioner apparently sought to challenge the CPSE's recommendation on the ground that it did not afford the child adequate behavior modification services, the sole issue at the hearing in this proceeding, and in this appeal, is the validity of the procedure by which hearing officers are appointed in City School District of the City of New York.

The hearing in this proceeding commenced on December 28, 1993. As was his right, petitioner promptly challenged the hearing officer's impartiality, on the ground that the manner in which the hearing officer had been assigned to the hearing was inconsistent with the selection process set forth in the Regulations of the Commissioner of Education (see 8 NYCRR 200.2 [e][1]). State regulation requires that boards of education maintain lists of hearing officers ... "from which the district shall select the first available hearing officer", and requires that such lists be maintained on a rotational basis [Ibid].

At the hearing, the Chief Administrator of respondent's Impartial Hearing Office testified that respondent's list of hearing officers included the names of approximately 30 individuals, and that the general practice of the Impartial Hearing Office is to assign hearing officers to cases to be heard on dates which the hearing officers have indicated in advance that they will be available. In the event, no hearing officer has indicated in advance that he or she would be available for a particular date on which a hearing has been scheduled, the Impartial Hearing Office contacts the hearing officers on respondent's list to ascertain their availability to serve as the hearing officer on such date. The employee who assigns hearing officers to cases testified that when she has to contact hearing officers to ascertain their availability for particular dates, she contacts them in alphabetical order.

The Chief Administrator and the employee of the Impartial Hearing Office each testified that certain individuals whose names are on respondent's list of hearing officers are not asked to serve as hearing officers. The record reveals that on May 16, 1990, respondent designated 36 individuals to serve as impartial hearing officers. Of the 36 individuals, 32 are presently certified by the State Education Department to serve as impartial hearing officers in New York City. However, the chief administrator testified that only 19 individuals are considered to be available to serve as impartial hearing officers. She asserted that the other individuals whose names are on respondent's list of hearing officers were deemed to be unavailable, because they had moved to other states, retired, failed to submit necessary documents to respondent, or had requested that they not be contacted to serve as hearing officers, for personal or business reasons. Those who had requested that they not be called by the Impartial Hearing Office had spoken to the Chief Administrator about their requests. The Chief Administrator also testified that one hearing officer was considered to be unavailable because of her advanced age.

With regard to the assignment of the hearing officer in this proceeding, the Impartial Hearing Office employee testified that after petitioner's request for a hearing was received, she ascertained from the attorneys for the parties that December 28, 1993 was a mutually agreeable date for the hearing to be held. She further testified that on December 15, 1993, the hearing officer in this proceeding had informed her of her availability to conduct a hearing on December 28, 1993, and that she was one of four individuals who were available to serve as hearing officers on that date. Although another hearing officer was initially assigned to this case, the employee testified that she reassigned this case to the hearing officer who heard the case, because the other hearing officer was not going to be available for a full day of hearing on December 28, 1993.

At the conclusion of the testimony by the Chief Administrator and the employee of the Impartial Hearing Office, petitioner renewed his motion that the hearing officer recuse herself. The hearing officer reserved decision on the motion, and the parties agreed to set forth their respective positions on the motion in memoranda of law. The hearing officer entered the memoranda as evidence in the hearing record, after affording petitioner an opportunity to reopen the hearing to challenge any of the documentary evidence attached to respondent's memorandum. Petitioner did not request that the hearing be reopened. In an affirmation attached to respondent's memorandum of law, the Chief Administrator revealed that during the 1992-93 school year, the Impartial Hearing Office received 1229 requests to schedule impartial hearings.

Before the hearing officer rendered her decision in this proceeding, petitioner sought injunctive relief from the U.S. District Court for the Eastern District of New York. On March 31, 1994, the Court denied petitioner's request, upon the ground that petitioner had failed to exhaust his administrative remedy (Berkowitz et al. v. New York City Bd.of Educ. and New York State Educ. Dept., 94-Civ-1268).

In a decision dated April 28, 1994, the hearing officer denied petitioner's recusal motion. The hearing officer dismissed petitioner's assertion that the she had not been assigned to hear the case in accordance with the rotational system prescribed by State Regulation, by noting that the Education Law exempted respondent from the applicability of such regulation under certain circumstances. The hearing officer found that respondent's system of assigning hearing officers was legally permissible, and was a reasonable practice, in view of the number of hearings requested in New York City.

Respondent asserts that the petition should be dismissed because it is not verified, as required by 8 NYCRR 279.1 and NYCRR 275.5. However, the petition which was filed with the State Education Department is verified. Although petitioner should have included a copy of his verification with the petition which was served upon respondent, his failure to do so does not afford a basis for dismissing the appeal (Application of a Child Suspected of Having a Disability, Appeal No. 93-7; Application of a Child Suspected of Having a Disability, Appeal No. 94-3).

Respondent further asserts that petitioner should be barred from raising new issues in his memorandum of law. Although respondent has not identified any specific issue which should be precluded, it is apparently referring to petitioner's assertion in his memorandum of law that respondent has no rational basis for requiring that each of its impartial hearing officers be an attorney, in addition to meeting the State statutory and regulatory requirement that such individuals compete a training program conducted by the State Education Department (Section 4404 [1] of the Education Law; 8 NYCRR 200.1 [s][2]). Petitioner briefly raised the issue in his opening statement at the hearing in this proceeding. However, neither party addressed the issue at the hearing, nor did petitioner raise the issue in his petition. Instead, petitioner asserted in his memorandum of law that respondent has not provided a rational basis for its requirement that hearing officers be attorneys, and has attempted to include in the record of this appeal an approximately 100 page deposition given by the Chief Administrator in another, unidentified proceeding. In her deposition, the Chief Administrator briefly discussed respondent's requirement. Under the circumstances, I decline to address the issue (Application of a Child with a Disability, Appeal No. 94-12), which in any event, would not be dispositive of the issue of the hearing officer's impartiality in this proceeding.

Petitioner challenges the procedure by which respondent assigns hearing officers to conduct hearings on two grounds. First, he asserts that respondent has failed to comply with a State statutory and regulatory requirement that hearing officers be selected from a list which the board of education must maintain on a rotational basis. Prior to July 1, 1993, the Education Law and the Regulations of the Commissioner of Education did not require such a selection process. Federal statute and regulation do not expressly require that hearings be selected on a rotational basis, although Federal regulation requires that each school district maintain a list of its impartial hearing officers and their qualifications (34 CFR 300.507 [c]).

As of July 1, 1993, Section 4404 (1) of the Education Law was amended to read, in material part, as follows:

"1. If the recommendation of the committee on special education is not acceptable to the parent or person in parental relationship of a child, or if the committee or board of education or trustees fails to make or effectuate such a recommendation within such periods of time as may be required by regulations of the commissioner, such parents or persons in parental relationship shall notify the board of education of this situation and the board shall appoint an impartial hearing officer to hear the appeal and make a determination within such period of time as the commissioner by regulation shall determine. Individuals so appointed by a board of education shall be selected from a list of available hearing officers who have successfully completed a hearing officer training program conducted by the department according to a rotation selection process prescribed in regulations of the commissioner; except that a city school district of a city having a population of more than one million inhabitants shall be exempt from such regulations to the extent it maintains its rotational selection process in effect prior to July first, nineteen hundred ninety-three ... "

In October, 1993, the Section 200.2 (e)(1) of the Regulations of the Commissioner of Education was amended to read as follows:

"(e) Maintenance of lists. The board of education or trustees of each school district shall maintain a list of:

(1) the names and resumes of impartial hearing officers certified by the Commissioner of Education pursuant to section 200.1 (s)(2) of this Part, from which the district shall select the first available hearing officer. Such list shall be maintained on a rotational basis and shall be compiled from a list of all certified impartial hearing officers available to serve in the district. Those hearing officers who have conducted impartial hearings on behalf of the school district on or after July 1, 1993, shall be placed on the bottom of the list in order of the date of their appointment;"

The initial issue is whether respondent is subject to the provisions of 8 NYCRR 200.2 (e)(2). Respondent asserts that it comes within the terms of the exemption from such regulation which is set forth in Section 4404 (1) of the Education Law. Although respondent is not identified by name in the statute, it is the only school district in the State of New York located in a city having a population of more than one million inhabitants. Its eligibility for an exemption from the requirements of 8 NYCRR 200.2 (e)(2) is conditional upon its maintenance of a rotational selection process which was in effect prior to July 1, 1993. The staff member of the respondent's Impartial Hearing Office who testified at the hearing asserted that the practice which she described had been in effect since at least January, 1993, when she assumed her present duty of assigning hearing officers. Petitioner has not challenged the staff member's testimony.

Petitioner asserts that respondent's practice of assigning hearing officers to cases, as described in the testimony at the hearing in this proceeding, does not meet the dictionary definition of the word "rotational". He further asserts that if respondent employed a truly rotational system of assigning hearing officers, each hearing officer on respondent's list would have decided approximately the same number of cases. He has proffered as an exhibit to his memorandum of law a chart purporting to show that six hearing officers have rendered approximately 700 of the 1296 decisions rendered over a five-year period between 1988 and 1993. Respondent has not challenged the accuracy of petitioner's exhibit. However, I find that it is not dispositive of the matter, because petitioner's inference drawn from the data in the chart rests upon the premise that each hearing officer was equally available to conduct hearings on the dates to which the parties had agreed. There is no evidence in the record to support such a premise. Indeed, the unrebutted testimony of respondent's witnesses suggests that the hearing officers on respondent's list were not equally available to conduct hearings.

With regard to respondent's practice of assigning hearing officers to hearings on the dates which they have previously indicated they will be available, I must note that both the Education Law and the Regulations of the Commissioner of Education provide that the hearing officers are to be selected from a list of hearing officers who are available. Whether the hearing officers indicate their availability in advance, or whether they are canvassed for their availability for each hearing, the result in either case is that only certain hearing officers are available for given dates. The examination of respondent's witnesses at the hearing neither established, or even suggested, that certain hearing officers within the group who are available on particular days are favored over others in such group. The hearing in question in this appeal was one of four hearings for which four hearing officers were available. If fewer than four hearing officers had been available, the hearing officers on the list would have been canvassed in the alphabetical order in which their names appeared on respondent's list, according to the testimony of the Impartial Hearing Office staff member who assigns hearing officers. The employee further testified that she attempts to balance the number of assignments among the hearing officers, in reflection of the fact that a number of hearings are canceled.

In view of the testimony of respondent's witnesses, as well as the significant number of requests for hearings which respondent receives and the Federal and State regulatory time limits which require that hearing officers render their decision within 45 days after hearings have been requested (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]) I find that the system employed by respondent is rotational for purposes of the statutory exemption. A finding to the contrary would require me to further find that the statutory exemption was not intended for any useful purpose because no school district could qualify for the exemption (cf. McKinney's Consolidated Laws of New York, Book 1, Section 213; Matter of Hardecker v. Bd. of Ed. City of New York, 180 Misc. 1008, aff'd 266 App. Div. 980, aff'd 292 N.Y. 584; Matter of Lorelli et al. v. Manhattan Transit Authority, 48 Misc. 2d 944). It is more reasonable to conclude that the 1993 amendment of Section 4404 (1) of the Education Law was drafted with an awareness of respondent's system of assigning hearing officers and the intent to allow respondent to continue with that system.

Petitioner also challenges respondent's procedure for assigning hearing officers, upon the ground that it denies him due process of law, as guaranteed by the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq). As one court has noted:

"The Act relies upon parental involvement to contribute to the determination of what constitutes an appropriate education for a child. A system perceived by parents as tainted by biased adjudicators would deter parents from fulfilling their role under the Act. The success of IDEA's novel approach to protecting the rights of disabled children, thus, turns to ensuring the right to adjudicative independence." (Heldman v. Sobol 962 F. 2d 148 [2d Cir., 1992])

At least partly in response to the Heldman litigation, Section 4404 (1) of the Education Law was amended to require a rotational selection process for hearing officers, as well as other changes such as the ineligibility of school district employees from serving as hearing officers in other districts after July 1, 1996 (Heldman v. Sobol, 846 F. Supp. 285 [S.D.N.Y., 1994]). The requirement of a rotational selection process appears to have been intended to address parental concerns about the unilateral selection of hearing officers by boards of education (See, Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-47), by providing a more formal and less discretionary selection process. In his memorandum of law, petitioner concedes the impracticality of requiring "an overly formulaic, mechanistic system" for assigning hearing officers, but asserts that respondent's system is flawed. First, he points out that those hearing officers who make themselves available most frequently receive the lion's share of hearing officer assignments. However, the same result could be obtained if respondent canvassed its entire list of hearing officers for each hearing. The practice of assigning cases based upon each hearing officer's stated willingness to serve, in effect, gives each hearing officer more initiative in obtaining assignments than they would have in a strictly sequential selection process. I find that such practice is consistent with the goal of adjudicative independence, and is not a denial of petitioner's due process rights.

With regard to those instances when respondent requires the services of a hearing officer, but no hearing officer has indicated his or her availability, petitioner asserts that respondent should canvas its list of hearing officers by calling first those who had not recently conducted a hearing. Instead, an employee of the Impartial Hearing Office contacts hearing officers in the alphabetical order in which their names appear on the list, without regard to the frequency or recentness of their prior service to respondent. Although respondent's practice may produce an unequal distribution of assignments between those with names of the beginning of the alphabet and those with names at the end of the alphabet, that result does not afford a basis for finding that respondent's practice is, or should be perceived by parents as being, tainted.

There are two administrative aspects of the hearing process that have been called to question, albeit somewhat obliquely, in this matter. The first issue is the exclusion of a potential hearing officer by respondent's staff because that officer was believed to be "senile." The second issue relates to the mechanical preparation, by the respondent, of hearing officer reports--and the subsequent destruction of the handwritten draft documents upon which the reports were based.

There is no evidence in the record before me that any hearing officer has been denied an assignment because of respondent's disagreement with the hearing officer's decisions in prior hearings, nor is there any evidence that final decisions of the hearing officers are in any way divergent from the hearing officers' draft decisions. Nonetheless, respondent needs to be aware that its administrative practices in these areas could give the impression of impropriety and, therefore, ought to be reexamined and revised appropriately.

The staff determination that one individual on respondent's hearing officer list should not be assigned to conduct hearings could be perceived as an attempt to alter the selection process because of dissatisfaction with hearing officer's decisions. Respondent is, of course, free to add or remove individuals from its hearing officer list, but it should do so at an open meeting of the Board of Education. In the case before me there is neither proof of impropriety in this regard, nor evidence that the hearing officer who was designated to hear this case is in any way impartial.

The practice of preparing a final version of hearing officer's report and destroying the handwritten draft document within six months, is neither relevant nor determinative to this case because, as yet, no hearing has been held. Therefore, I decline to reach the issue, which is premature at this juncture of the proceeding. However, respondent would do well to establish administrative procedures which contain an unassailable pathway for the mechanical preparation of final reports, and for their approval and signature by the hearing officers.

Notwithstanding the two administrative matters just addressed, the only issue before me, at this time, is whether the designated hearing officer should recuse herself. I find no reason, legal or otherwise, for such recusal.

THE APPEAL IS DISMISSED.