96-069

        Petitioner appeals from a hearing officer's refusal to recuse himself from an impartial hearing which he was to conduct with regard to petitioner's son pursuant to the provisions of Section 4404 (1) of the Education Law. The appeal must be dismissed.

        At the outset, I note that the record which is before me is extremely limited because the hearing was discontinued before evidence about the underlying dispute had been adduced. It appears that the subject of the hearing involved the child's instruction during the Summer of 1996.

        Petitioner requested a hearing, on or about July 23, 1996. On August 20, 1996, petitioner's lay advocate received a letter addressed to her and respondent's attorney, from Harris J. Samuels, Esq., who informed the advocate and the attorney that he had been appointed as the hearing officer in this proceeding. Mr. Samuels announced that the hearing would be held on September 4, 1996. Upon receipt of Mr. Samuels' letter, petitioner's advocate sent a letter to Mr. Samuels, in which she referred to a letter dated July 11, 1996, from Mr. Samuels to Dr. John L. Stoothoff, respondent's superintendent of schools. In that letter, Mr. Samuels indicated that he was writing to the superintendent of schools:

"Following up our telephone conversation of last week, you may include me on your list of hearing officers." (Exhibit 2 to the petition)

        Mr. Samuels briefly described his educational, professional, and civil affairs background, in the remainder of his letter to the superintendent of schools. In her letter to Mr. Samuels, petitioner's advocate asked him to recuse himself as the hearing officer because his impartiality had been tainted by whatever conversation he had with the superintendent of schools. The advocate also indicated that she would be unable to attend the hearing on September 4, 1996. The advocate's letter was reportedly returned to her as undelivered. She then telefaxed a copy of the letter to Mr. Samuels.

        In a letter dated September 3, 1996, Mr. Samuels advised the advocate and respondent's attorney that the hearing had been rescheduled to take place on September 12, 1996. On September 4, 1996, Ms. Naydene Ames, respondent's district clerk, informed petitioner that respondent had initiated a hearing to demonstrate the appropriateness of its evaluation of the boy, in response to petitioner's request for an independent evaluation of the boy (See 34 CFR 300.503). The district clerk indicated that Mr. Samuels had been appointed to conduct the second hearing, and that both hearings would be consolidated. By letter dated September 7, 1996, the parent's advocate objected to the consolidation of the two hearings on the ground that she would not have adequate time to prepare for the issues involved in the second hearing by September 12, 1996. The advocate argued that respondent was also untimely in seeking to initiate a hearing. She also asked the hearing officer to furnish evidence that he had been selected for the second hearing in accordance with the rotational process prescribed by Section 4404 (1) of the Education Law. The advocate indicated that she intended to appeal from the hearing officer's failure to recuse himself from the first hearing, but also indicated her awareness of the fact that she could not do so, until the hearing officer formally denied her recusal motion at the hearing on September 12, 1996.

        The hearing in this proceeding convened on September 12, 1996. Petitioner, through his lay advocate, challenged the hearing officer's impartiality because he had reportedly had a conversation with respondent's superintendent of schools, and because the superintendent had reportedly compiled the list of respondent's impartial hearing officers. The advocate alluded to a prior decision of the State Review Officer, in which respondent was cautioned to appoint its hearing officers in accordance with the applicable statute and regulation (Application of a Child with a Disability, Appeal No. 96-35). However, I noted in that decision that there was no evidence of any ex parte conversation between the hearing officer and any employee of the school district who testified at the hearing. Petitioner's advocate also objected to the consolidation of the hearing requested by respondent with the hearing which she had requested, and asked for an adjournment of the proceeding if the two hearings were consolidated. The hearing officer orally ruled that he would not go forward with respondent's requested hearing, on the ground that petitioner had not been afforded adequate time to prepare for the hearing.

        With regard to the issue of his impartiality, the hearing officer informed the parties that:

" A couple of months ago someone I never heard of from down here called me up and asked me if I would be on a hearing officer list and I said sure and that was the end of that. Having been a lawyer for 20 years I'm familiar with the subject of ex partecommunication. I don't regard that as an ex parte communication of a substantive matter. I didn't discuss this case with Mr. Stoothoff. He asked me if I would be on a list and I said yes. That was the end of it. So very honestly I don't feel tainted or biased in any way by the fact that he said that." (Transcript pages 43-44).

        The hearing officer was asked whether he had any other conversation with the superintendent. He indicated that he had not spoken to the superintendent again and that:

"To the best of my recollection the next thing I heard from the district was a letter I received from Ms. Aimes (sic) asking me to take this hearing." (Transcript, page 53).

        The hearing officer orally denied petitioner's motion that he recuse himself as the hearing officer. Petitioner's advocate stated that she would attempt to obtain an order of the Commissioner of Education staying the hearing in this proceeding, and asserted that the hearing could not proceed until her request for a stay order had been addressed, simply because she was seeking a stay order (cf. 8 NYCRR 276.1[a]). Petitioner and her advocate then left the room in which the hearing was to be held.

        Petitioner asks that Mr. Samuels be removed as the hearing officer in the proceeding. She also asks that respondent be required to create a new rotational list of impartial hearing officers, consisting only of individuals with whom respondent's superintendent has had no contact. In addition, she asks that Mr. Samuels be investigated to determine why he did not recuse himself.

        Respondent argues that the appeal should be dismissed because the only appropriate vehicle for the relief which petitioner seeks is a proceeding conducted pursuant to 8 NYCRR 200.21. I disagree with respondent's argument. The procedure set forth in 8 NYCRR 200.21 relates to the suspension or revocation of a hearing officer's State certification. While petitioner's request for an investigation could arguably fall within that kind of proceeding, I find that the gist of her complaint is that the hearing officer erred by not recusing himself from the hearing in this proceeding. A parent may appeal to the State Review Officer from a hearing officer's refusal to recuse himself or herself, prior to the completion of the hearing (Application of a Child with a Handicapping Condition, Appeal No. 91-46; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-47).

        Administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (DeCamp v. Good Samaritan Hospital, 66 AD 2d 766 [2nd Dept., 1978]; Grant v. Senkowski, 146 AD 2d 948 [3rd Dept., 1989]). Hearing officers should refrain from communicating with any party or party's representative about any issue of fact or law in the hearing, except upon notice and opportunity for all parties to participate (Section 307[2] of the State Administrative Procedure Act). A hearing officer's ex parte communication with a party may afford a basis for annulling the hearing officer's decision (Signet Construction Corp. v. Goldin, 99 AD 2d 431 [1st Dept., 1984]. However, there is no evidence of any ex parteconversation between the superintendent of schools and the hearing officer, with regard to this proceeding.

        In addition to the hearing officer's statements at the hearing about his one conversation with Dr. Stoothoff, the record which is before me includes an affidavit by Dr. Stoothoff. Dr. Stoothoff alleges that he reviewed respondent's list of impartial hearing officers, prior to respondent's annual organizational meeting which was held on July 11, 1996, to ascertain which individuals on the list were eligible to serve on or after July 1, 1996. In 1993, Section 4404 (1) of the Education Law was amended to provide that by no later than July 1, 1996, the Commissioner of Education must implement a plan to ensure that no individual employed by a school district, school, or program serving children with disabilities placed there by a school district committee on special education could act as an impartial hearing officer, until two years after the termination of such employment. Dr. Stoothoff also reviewed the most current list of State certified hearing officers to ascertain the identities of those who lived in reasonably close proximity to respondent's district.

        Dr. Stoothoff further alleges that he contacted seven individuals, including Mr. Samuels, on the State's list of hearing officers, and that all seven individuals indicated interest in having their names placed on respondent's rotational list of impartial hearing officers. Dr. Stoothoff also alleges he had only one conversation with Mr. Samuels, and that he did not discuss this proceeding, or any special education matter, with him. The minutes of respondent's meeting on July 11, 1996, a copy of which is annexed to Dr. Stoothoff's affidavit, reveal that respondent appointed seven individuals to its list of impartial hearing officers for the 1996-97 school year. Petitioner's request for a hearing was reportedly made on or about July 23, 1996, which was after Mr. Samuels had been appointed to respondent's list.

        In his affidavit, Dr. Stoothoff alleges that upon receipt of petitioner's request for a hearing, Ms. Naydene Ames, the district clerk, contacted Mr. Samuels about serving as the hearing officer, because his name, which was fifth on respondent's list, was next in line after the four individuals whose names preceded Mr. Samuels' name declined to take the case. Ms. Ames then notified Mr. Samuels that he would be appointed by respondent, which voted to appoint him on August 26, 1996.

        Petitioner's reliance upon the decisions in Application of a Child with a Handicapping Condition, Appeal No. 92-19; and Application of a Child with a Handicapping Condition, Appeal No. 92-32, is misplaced because those appeals involved the board of education delegating to its superintendent of schools its responsibility to appoint hearing officers to serve in specific hearings. In Application of a Child with a Handicapping Condition, Appeal No. 92-46, upon which petitioner also relies, the superintendent had allegedly discussed the selection of a hearing officer with the president of the board of education, who appointed the hearing officer. That decision is also inapplicable to this proceeding. Similarly, the decision in Application of a Child with a Disability, Appeal No. 96-35, is inapposite to the facts in this proceeding. In that appeal, the superintendent of schools wrote a letter to the hearing officer, in which he thanked the hearing officer for accepting the appointment as hearing officer. The concern there was that the superintendent could have discussed the case with the hearing officer. However, there was no evidence that he had done so. In this proceeding, the superintendent could not have spoken to the hearing officer about petitioner's case, because petitioner had not yet requested a hearing.

        I find that petitioner's contention that the hearing officer's appointment was tainted by his "ex parte" conversation with the hearing officer about having his name added to respondent's list of hearing officers is without merit (Application of a Child with a Disability, Appeal No. 96-2).

THE APPEAL IS DISMISSED.