Decision No. 12,736

(July 2, 1992)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G.

Kruse, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an opinion regarding the propriety of respondent's procedures in selecting impartial hearing officers pursuant to Article 89 of the Education Law. The appeal must be dismissed.

Petitioner requested an impartial hearing pursuant to Education Law '4404 regarding the provision of educational services for her son. At the hearing, it was established that the chairperson of respondent's committee on special education (CSE) had selected the impartial hearing officer. Petitioner proceeded with the hearing but reserved the right to "question the impartiality of the hearing officer at a later date." There is no evidence that petitioner ever sought review of either the decision or the impartiality of the hearing officer.

In this appeal petitioner seeks an opinion generally regarding the proper procedures for selecting impartial hearing officers. She asks whether it is appropriate for the CSE chairperson to select a hearing officer when the chairperson will be appearing at the hearing.

Petitioner is not appealing from the determination of an impartial hearing officer as Education Law '4404 requires (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 53; Application of a Child with a Handicapping Condition, 30 id. 6). Nor is petitioner appealing from the hearing officer's adverse ruling on a motion to recuse (see, Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 138). Instead, petitioner is seeking a purely advisory opinion. Accordingly, the appeal must be dismissed (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 195; Application of a Child with a Handicapping Condition, 30 id. 53; Applications of a Child with a Handicapping Condition, 29 id. 486).

Although the appeal is dismissed on procedural grounds, respondent is cautioned that a board policy permitting school district employees, who may be called as witnesses or who may have been otherwise involved in the decision to be reviewed by the impartial hearing officer, to also be involved in the hearing officer's appointment, invites avoidable challenge to his/her impartiality (see, Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 138). In all instances, the integrity of the hearing process is preserved through the guarantee of impartiality. To the extent that the selection process itself runs the risk of tainting the system, either by appearance or in actuality, such practices should be curtailed (see, Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 195; Application of a Child with a Handicapping Condition, 29 id 138).

THE APPEAL IS DISMISSED.

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