Decision No. 12,570

(August 21, 1991)

Paul Spletzer, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks a determination that the hearing officer appointed to preside over her son's impartial hearing is unqualified due to an alleged conflict of interest. The appeal must be dismissed.

This appeal arises from incidents which occurred during four impartial hearings. Three of these hearings involved petitioner's son, X; the fourth involved another of petitioner's children, Y. For convenience, these hearings shall be referred to as X1, X2, X3 and Y1.

Respondent Wappingers Central School District (the district) appointed the same individual to serve as hearing officer in each of the four hearings referred to above. Proceedings in the matter of X1 took place on October 10, 1990. Although the details are not reflected in this record, the issue in that proceeding appears to have involved X's entitlement to homebound instruction. At that hearing, having learned that respondent was discontinuing homebound instruction, petitioner asked whether X would be permitted to attend school. Petitioner was told that if she sent X to school, he would be admitted. X, therefore, went to school on October 11, 1990. During the day, however, X allegedly collapsed and was rushed to a local hospital emergency room. X spent the following two weeks in a hospital in New York City.

Following X's collapse, petitioner requested an impartial hearing in the matter of X2. Again, the details of that dispute are not described in this record. That hearing was scheduled to commence on December 4, 1990. In the meantime, however, petitioner was embroiled in the matter of Y1. During Y1 proceedings, on November 5, 1990, petitioner asked the hearing officer to recuse himself from the upcoming hearing in X2. Petitioner disclosed that she intended to name the hearing officer as a defendant in civil litigation arising from X's alleged collapse on October 11, 1990. In petitioner's view, the hearing officer's status as a defendant in such litigation would constitute a conflict of interest warranting his recusal from X2. The hearing officer deemed this issue to be inappropriate during Y1 proceedings, and consequently refused to entertain petitioner's request at that time.

On December 4, 1990, at the commencement of X2, petitioner renewed her request for the hearing officer's recusal. The hearing officer denied petitioner's request, and the hearing apparently went forward. There is no indication that petitioner challenged the hearing officer's refusal to recuse himself from X2. On or about January 8, 1991, however, petitioner did serve the hearing officer with papers naming him as a defendant in civil litigation.

On February 5, 1991, petitioner met with respondent's committee on special education (CSE) to discuss X. Following a dispute over petitioner's request for a neuropsychological examination for X, petitioner requested a third impartial hearing (X3). On February 6, 1991, respondent appointed the same hearing officer to preside over X3. Proceedings in the matter of X3 were scheduled to commence on March 8, 1991.

Petitioner commenced this appeal on February 25, 1991, requesting that the hearing officer's appointment in X3 be stayed due to the alleged conflict of interest arising from petitioner's civil litigation. Petitioner's request for a stay was denied on March 7, 1991.

The petition in an appeal to the Commissioner of Education must set forth "a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR 275.10). Respondent contends that petitioner has failed to comply with the requirements of this regulation. I agree. As indicated, the petition herein requested a stay of the hearing officer's appointment in the matter of X3. The petition, however, does not request any relief other than the stay, which has already been denied. Indeed, the record does not indicate whether X3 ever proceeded to conclusion. Consequently, I must sustain respondent's objections, and dismiss the appeal.

This appeal would be dismissed on the merits, in any event. First, petitioner failed to comply with the well-established procedure for challenging a hearing officer's qualifications. Decisions of the Commissioner hold that, at the commencement of an impartial hearing, the hearing officer must disclose to the parties any potential conflicts of interest which may compromise his or her impartiality (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 240, 242). At that point, either party to the hearing may object to the hearing officer's appointment, and the hearing officer must decide whether to recuse himself or to proceed with the hearing (id.). Either party may then appeal the hearing officer's decision directly to the Commissioner of Education, or may preserve the objection and raise it before the State Review Officer on appeal. In all cases, however, the hearing officer must be afforded the opportunity to rule on his or her impartiality before the parties can appeal that issue.

In the present matter, petitioner brought this appeal prior to the commencement of X3. The hearing officer, therefore, had no opportunity to address petitioner's request for his recusal. I recognize that the hearing officer had previously refused to recuse himself in X2. At that time, however, petitioner had not yet commenced the civil litigation allegedly creating the hearing officer's conflict of interest. Consequently, I find the circumstances of X2 and X3 sufficiently distinct to preclude a conclusion that the hearing officer would necessarily have made a similar ruling in X3.

Notwithstanding petitioner's procedural errors, the record before me supplies no basis for the disqualification of the hearing officer. The Regulations of the Commissioner of Education provide, in pertinent part, that a hearing officer "shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing" (8 NYCRR 200.1[p][1]). It is petitioner's contention that the hearing officer has such a conflict by reason of his status as a defendant in the civil litigation stemming from X's collapse. Respondent argues that there is no conflict of interest, because the hearing officer enjoys absolute immunity from civil liability for decisions rendered by him in his official quasi-judicial capacity.

It is for the court of record to determine whether the hearing officer is immune from liability in petitioner's litigation. Having reviewed the prevailing authority on this issue, however, it seems very likely that the hearing officer is immune from liability for X's collapse (Tarter v State of New York, 68 NY2d 511, 518; see, Butz v Economou, 438 US 478; Turcotte v Fell, 84 AD2d 535; Matter of Schual v Lindenhurst Memorial Library, 72 AD2d 817; Matter of Town of Cheektowaga v City of Buffalo, 67 AD2d 812). Petitioner cites no instance in which the hearing officer has demonstrated bias, nor does the record reveal any such evidence (Application of a Child with a Handicapping Condition, 27 Ed Dept Rep 332, 334). Consequently, I find no basis for the disqualification of the hearing officer.

THE APPEAL IS DISMISSED.

END OF FILE

---