Decision No. 13,715

(December 19, 1996)

Michael K. Lambert, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the evidentiary ruling of an impartial hearing officer (IHO) regarding introduction into evidence of a proposed exhibit containing the terms of a stipulation entered into by petitioner and the Board of Education of the Wappingers Central School District ("respondent"). The appeal must be dismissed.

Petitioner is the parent of a student with a disability who is 21 years old. He has been classified as other health impaired since the 1989-90 school year. Petitioner has brought several prior appeals before the Commissioner and the State Review Officer concerning her son's educational placement. Due to a dispute over the recommendation of respondent's Committee on Special Education (CSE), petitioner requested an impartial hearing on March 30, 1995. On April 25, 1995, respondent appointed an impartial hearing officer.

The hearing commenced on May 12, 1995. At a session held on April 23, 1996, respondent's attorney made a motion before the IHO to introduce a stipulation entered into by the parties, which was signed by Judge Barrington D. Parker of the United States District Court for the Southern District of New York, in settlement of a previous dispute between the parties over the student's educational placement. Petitioner's attorney objected to disclosure of this document on the basis that it was a confidential record. The IHO requested a copy of the stipulation to review it and make a determination as to relevance. Petitioner's attorney requested that the IHO consult with the State Education Department, but the IHO declined to do so. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on May 24, 1996.

Petitioner alleges that impartial hearing officers have no legal authority to disclose any confidential court order without a waiver of confidentiality by the parties. Petitioner requests an order precluding respondent from disclosing any portion of the settlement and preventing the introduction of the settlement and order at the impartial hearing. Finally, petitioner requests costs for the expedited transcript.

Respondent contends that petitioner, who was represented by counsel at the impartial hearing, has no authority to appear prose in an interlocutory appeal relative to a matter where she is represented by counsel. Respondent also contends that the Commissioner of Education has no jurisdiction to review this matter since it is within the jurisdiction of the federal courts. Respondent further contends that petitioners do not have an interlocutory right to the relief requested since 8 NYCRR 276.10 provides for the right to appeal only after the determination of an impartial hearing officer. Further, respondent contends that the terms of the stipulation settled all of petitioner's claims that occurred before the date of the signed settlement and that petitioner waived any confidentiality rights with respect to that document when respondent was required to defend this action. Finally, respondent contends that petitioner is not entitled to costs.

The impartial hearing requested by petitioner has been decided and subsequently appealed to the State Review Officer (SRO), who rendered her determination on November 5, 1996 (No. 96-51). In that decision, the SRO noted the dispute over the stipulation and stated that the hearing officer did not consider the stipulation in the impartial hearing. Since the relief requested is to prohibit the IHO from receiving the stipulation into evidence and the impartial hearing has been concluded, I find that the matter is moot. Because the Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exist or which subsequent events have laid to rest, the appeal is dismissed (Appeal of DeMan, 35 Ed Dept Rep 171; Appeal of Evans, 33 id. 572; Appeal of Chrisfield, 33 id. 463). Furthermore, the relief petitioner seeks, enforcement of a stipulation entered into between the parties in settlement of federal litigation, is enforceable only in that forum and not before the Commissioner of Education.

Petitioner requests costs in connection with the expedited transcript she determined was necessary to commence this appeal. The Commissioner of Education lacks authority to award costs or attorney's fees in an appeal under Education Law '310 (Appeal of Reynolds and Mirakian, 35 Ed Dept Rep 327; Appeal of Stewart, 34 id. 193; Appeal of Ferguson, 32 id. 494). Accordingly, petitioner's request is denied.

THE APPEAL IS DISMISSED.

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