93-010

Petitioner appeals from the decision of a hearing officer holding that his appointment as a hearing officer was improper because respondent could not establish how the hearing officer had been informed of his appointment. The appeal must be dismissed.

On or about September 8, 1992, petitioner requested that an impartial hearing be held to review a recommendation by respondent's committee on special education (CSE) for services to be provided to her child. In her letter requesting the hearing, petitioner raised both procedural and substantive objections to the CSE's recommendation. The hearing was scheduled to begin on October 21, 1992. At petitioner's request, the hearing was rescheduled to begin on November 24, 1992.

At the hearing, petitioner questioned the manner in which the hearing officer had been appointed. Respondent's attorney introduced evidence of respondent's resolution dated May 14, 1992, delegating its authority to appoint hearing officers to its president, when necessary, to meet time limitations imposed by Federal and State regulations (see 34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). Respondent's resolution provided that any such appointment made by its president was to be reported to the board of education at its next regularly scheduled meeting. The school district clerk testified at the hearing that the hearing officer's appointment by respondent's president had been discussed at an executive session of a subsequent meeting of respondent on September 24, 1992.

The hearing officer stated that he had been informed of his appointment in a telephone call from the school district clerk. However, the district clerk testified at the hearing that she had not informed the hearing officer of his appointment. Respondent's president was not available to testify at the hearing.

Petitioner requested an interlocutory ruling by the hearing officer that he had not been validly appointed. Petitioner also sought a determination by the hearing officer that respondent had waived its right to contest any of her assertions on the merits because respondent had failed to ensure that the hearing would be completed within the regulatory time limitation of 45 days after the hearing had been requested. The hearing officer denied petitioner's requests, and adjourned the hearing until January 20, 1993, for the purpose of allowing respondent to adduce additional evidence demonstrating the manner in which the hearing officer had been appointed.

Petitioner appealed from the hearing officer's decision to the State Review Officer. In Application of a Child with a Handicapping Condition, Appeal No. 92-46, petitioner raised objections to the manner in which the hearing had been scheduled and conducted, and sought a determination that her rights under various Federal and State statutes had been violated. Petitioner's appeal was dismissed upon findings that her request for a determination about the validity of the hearing officer's appointment was premature, and that her other assertions were without merit. In that appeal respondent asserted that the matter was, or would be, moot because petitioner intended to relocate her residence to Cranston, Rhode Island. I declined to reach the issue of mootness because petitioner was at that time still a resident of respondent's school district, and I noted that regardless of a change in her residence, some of her claims were not dependent on residency and could continue to be asserted.

Petitioner did not attend the hearing which was resumed on January 20, 1993. The hearing officer stated for the record that he had received a telephone message from petitioner stating that she would not be present at the hearing. A colloquy between the hearing officer and respondent's attorney revealed the fact that in an off-the-record discussion at the hearing on November 24, 1992, petitioner had informed the hearing officer and attorney that she expected to undergo surgery in December and agreed to the deferral of the next hearing date until January 20, 1993. The transcript of the November 24, 1992 hearing reveals that the hearing officer stated to the parties that the hearing would resume on January 20, 1993.

Respondent's attorney moved to dismiss the proceeding because of petitioner's failure to appear at the hearing and her change of residence. The hearing officer denied respondent's motion upon the ground that he could not grant any motion until he determined that he had been validly appointed as the hearing officer. The hearing officer also observed that it would, in any event, be inappropriate to grant respondent's motion because petitioner had requested reimbursement for her expenditures for summer school tuition, which would require that respondent meet its burden of proof of establishing that it had offered the child an appropriate program during the summer in question (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359).

Respondent's president testified at the reconvened hearing that in September, 1992, she had been advised by the superintendent of schools about petitioner's request for a hearing, and that the superintendent had suggested that the president appoint a hearing officer under respondent's resolution of May 14, 1992. Respondent's president further testified that in response to her request for the names of hearing officer's used by or available to respondent, the superintendent told her that there was only one name on respondent's list of potential hearing officers. The witness testified that she told the superintendent that she would appoint the individual whose name was on the list as the hearing officer, but that she had not been involved in contacting the hearing officer about his appointment and did not know who had contacted that hearing officer.

After discussing the holdings of decisions of the Commissioner of Education and the State Review Officer about the manner in which hearing officers must be selected, the hearing officer stated on the record that he was compelled to declare his appointment improper because respondent could not prove that the appointment had not been tainted by contact between the hearing officer and the superintendent or other persons who might be involved in the hearing.

In this appeal, petitioner asserts that the hearing officer's decision was correct, but incomplete. Virtually the entire petition in this appeal consists of an attempt to reassert the claims which petitioner made in her prior appeal. Indeed, she requests that I reconsider specific paragraphs of her petition in the prior appeal. Petitioner's request for a reopening of the prior decision must be denied, because it is not permitted under State regulation and because it would be inconsistent with the requirement of finality imposed by Federal regulation.

The practice on appeals to the State Review Officer is governed by Part 279 of the Regulations of the Commissioner of Education and by portions of Part 275 and Part 276 of such Regulations, relating to appeals to the Commissioner of Education pursuant to Section 310 of the Education Law. Reopening of appeals to the Commissioner is permitted by 8 NYCRR 276.8. However, 8 NYCRR 276.8 (d) reads as follows:

"The provisions of this section shall not apply to appeals brought pursuant to section 4404 of the Education Law. The determination of a State review officer of the State Education Department shall be final, provided that either party may seek judicial review by means of a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 1415."

The relevant Federal regulation, 34 CFR 300.510 (d), provides that:

"The decision made by the reviewing official is final unless a party brings a civil action under '300.511".

While petitioner alludes to the fact that she did not attend the January 20, 1993 hearing, she asserts that she informed the hearing officer on or about December 19, 1992 that she would not attend the hearing. Respondent has submitted an affidavit by the school district clerk recounting a telephone conversation with petitioner on January 19, 1993 in which petitioner allegedly stated that her daughter no longer attended school in the district and that she had no intention of attending the hearing. Petitioner asserts that the scope of the hearing was enlarged at the January 20, 1993 hearing to include her claim for tuition reimbursement. However, petitioner raised the issue in her opening statement at the hearing held on November 24, 1992. If she does not wish to pursue that issue, petitioner should promptly advise respondent.

Respondent has not appealed from the hearing officer's determination, but nevertheless asserts that the hearing officer's determination was incorrect. The hearing officer was clearly concerned about avoiding even the appearance of impropriety in his selection (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138; Application of a Child with a Handicapping Condition, 30 id. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-25).

Although the appeal must be dismissed, respondent is directed, within 30 days after the date of this decision, to appoint an impartial hearing officer to address petitioner's claims, including what relief, if any, is warranted given the January 20, 1993 determination by the impartial hearing officer that his appointment was improper.

THE APPEAL IS DISMISSED.