Decision No. 13,777

(June 19, 1997)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's method of appointing an impartial hearing officer (IHO) for her son's hearing and the hearing officer's refusal to recuse himself. The appeal must be dismissed.

Petitioner's son is a fourth grade student classified by respondent's committee on special education (CSE) as learning disabled. On June 7, 1996, respondent received a request from petitioner for an impartial hearing to resolve a dispute relating to her son's educational program. Dr. Stanley Abrams was appointed on June 17, 1996 as the impartial hearing officer (IHO) to conduct the hearing. Upon commencement of the hearing on July 12, 1996, petitioner asked Dr. Abrams to recuse himself. Petitioner commenced an appeal pursuant to Education Law '310 on August 26, 1996 asking me to remove Dr. Abrams as the IHO for her son's hearing. However, Dr. Abrams recused himself on August 29, 1996, rendering that appeal moot (Application of a Student with a Disability, 36 Ed Dept Rep 229).

On September 9, 1996, respondent appointed Mr. Harry Kershen to serve as IHO in the matter concerning petitioner's son. By letter, dated September 20, 1996, petitioner asked Mr. Kershen to recuse himself because respondent allegedly did not follow proper procedures in compiling the list of IHOs from which Mr. Kershen was appointed. By letter dated September 25, 1996, Mr. Kershen informed petitioner that he would not recuse himself.

The hearing commenced on October 2, 1996 before Mr. Kershen. Petitioner filed this appeal pursuant to Education Law '310 on October 8, 1996 asking for removal of Mr. Kershen as the IHO. Because petitioner initiated the appeal by serving respondent with a notice of intention to seek review by the State Review Officer, it was referred to that office pursuant to 8 NYCRR 279.2. The State Review Officer issued a decision which declined jurisdiction and referred the appeal to me for a determination on the issue of the construction of respondent's list (Application of a Child with a Disability, Appeal No. 96-70). The State Review Officer's decision provides that he would exercise jurisdiction to hear the issue of Mr. Kershen's refusal to recuse himself at a later time, if petitioner chose to appeal the final decision of the IHO to the State Review Officer pursuant to Education Law '4404. The hearing regarding petitioner's son continued with Mr. Kershen serving as IHO. Mr. Kershen rendered a decision on December 26, 1996, which petitioner then appealed to the State Review Officer. On February 28, 1997, the State Review Officer ordered that Mr. Kershen's decision be annulled and that a new hearing officer be appointed to conduct a new hearing in this matter (Appeal of Child with a Disability, Appeal No. 97-6).

In the instant appeal, petitioner objects to certain actions by respondent's Director of Special Education, William Laimit. Petitioner contends that because Mr. Laimit, as part of his official duties, made decisions regarding her son's education, he would be called upon to testify at her son's hearing. She further contends that Mr. Laimit "hand-picks" the hearing officer who would then hear his testimony at the hearing, which creates a conflict of interest and a bias in favor of the district. Respondent denies that Mr. Laimit "hand-picks" hearing officers but admits that he canvassed certified IHOs to determine their availability by writing them letters, collecting their resumes, and forwarding the list of names to the superintendent. Respondent further contends that the actual appointment was made by the board of education and that Mr. Laimit's actions were merely ministerial and resulted in no impropriety.

During the period of this dispute, respondent maintained a list of certified IHOs from which appointments were made on a rotational basis. In July 1996 Mr. Laimit took steps to update the district's list by sending letters to individuals whose names appeared in a memorandum issued by the State Education Department (SED) identifying certified impartial hearing officers. As a result, Mr. Laimit received letters and resumes from certified hearing officers confirming their availability to serve in respondent's district. On July 18, 1996, Mr. Laimit forwarded to respondent's superintendent a memorandum that included the names of five such individuals that were appointed to the district's rotational list by respondent board of education at its meeting on July 22, 1996. It is from this list that Mr. Kershen was appointed. The list was amended again on October 6, 1996 to include all IHOs available to serve in Suffolk County as identified in a memorandum issued in July 1996 by SED. The July 1996 memorandum issued by SED identified all certified IHOs and their availability to serve in school districts by county. The July memorandum also clarified the need for a school district's rotational list to include all eligible hearing officers available to serve in its district.

The process for selecting IHOs is governed by the Education Law and Commissioner's Regulations which require the board of education to appoint from a list of available hearing officers on a rotational basis. Guidance has been provided by SED in the above-referenced July memorandum regarding implementation of these requirements (Ed Law '4404, 8 NYCRR 200.2[e]).

Because respondent has amended its rotational list of IHOs to comply with SED's July 1996 memorandum and a new hearing officer will be appointed by respondent for the hearing on this matter from a lawfully constituted list, petitioner has already received the relief she requested in this appeal leaving no issue for me to resolve. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 36 Ed Dept Rep 248; Appeal of Nash, 35 id. 203). Therefore the appeal must be dismissed as moot.

THE APPEAL IS DISMISSED.

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