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Application of the BOARD OF EDUCATION OF THE CARMEL CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Raymond G. Kuntz, P.C., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel


     Petitioner, the Board of Education of the Carmel Central School District, appeals from an impartial hearing officer's decision which held that petitioner's committee on special education (CSE) had failed to develop an appropriate educational program for respondents' son for the 1999-2000 school year, and which directed petitioner to secure a placement for the boy at the Pine Ridge School (Pine Ridge) in Williston, Vermont for the remainder of that school year. The hearing officer also directed petitioner to initiate an emergency interim placement request to the State Education Department in order to place the boy at Pine Ridge, which has not been approved by the Education Department as a school for children with disabilities. He also ordered the Board of Education to reimburse respondents for their expenditures directly related to the home instruction they provided to their son during the 1999-2000 school year. The appeal must be dismissed.

        Respondents have raised procedural objections to the appeal. They contend that there is no proof that the Board of Education authorized this appeal from the hearing officer's decision, and that the appeal is, in any event, untimely. In support of their first objection to the petition, respondents have submitted copies of petitioner's minutes for meetings held on December 20, 1999, January 10, 2000, and January 18, 2000. They allege that those meetings were the only meetings which petitioner held during the period between its receipt of the hearing officer's decision and the service of the petition in this appeal. There is no reference to the hearing officer's decision, or an appeal from it, in the minutes. The minutes of the December 20, 1999 and January 18, 2000 meetings indicate that petitioner went into executive session during those meetings " … for the purpose of discussing negotiations and personnel".

        In its reply, petitioner asserts that it discussed and authorized this appeal in executive sessions during both of the aforesaid meetings. It does not dispute that it needed to adopt a resolution authorizing the commencement of this appeal (8 NYCRR 275.5; 8 NYCRR 279.1[a]). While I need not decide the extent to which a board of education may take action at an executive session, I must note that Sections 87(3)(a) and 106(2) of the Public Officers Law require petitioner to maintain a written record of the vote by its members, including votes taken in executive sessions. Petitioner has not offered the minutes of the executive sessions during its meetings on December 20, 1999 and January 18, 2000, nor has it offered an affidavit by any of its members attesting to the facts which it generally asserts in its reply. Under the circumstances, I must find that petitioner has not overcome respondents’ affirmative defense (Appeal of the Board of Education of the Little Flower Union Free School District, 32 Ed. Dept. Rep. 264).


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District Appeal