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Decision No. 12,553

Appeal of CHILDREN WITH HANDICAPPING CONDITIONS, by their parent, from action of the Board of Education of the Pine Bush Central School District relating to legal representation at impartial hearings.

Decision No. 12,553

(August 5, 1991)

Plunkett and Jaffe, P.C., attorneys for respondent, Adele K. Waine, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order from the Commissioner declaring that a school district may not be represented by counsel at any impartial hearing where the parent is not represented by counsel. The appeal must be dismissed.

Petitioner is the parent of two children with handicapping conditions attending public school in respondent's district. Several impartial hearings have been held regarding her children in which respondent was represented by counsel but petitioner was not. Petitioner makes reference to these past hearings but does not appeal from a particular hearing officer's decision. Petitioner indicates awareness of her right to counsel but complains that free or low cost legal services are not always available. Petitioner contends that the policy that allows a school board to be represented by counsel regardless of whether the parent has counsel disadvantages handicapped children and, therefore, should be discontinued. Specifically, petitioner seeks a ruling on whether it is procedurally correct or fair to children to have a school board represented by an attorney at an impartial hearing when a parent has no access to free or low cost legal services.

Respondent contends that the petition should be dismissed on procedural grounds and because Education Law '4404 and 8 NYCRR '200.5(c)(5) entitle the district to legal representation at impartial hearings. Respondent also contends that petitioner lacks standing and fails to set forth a clear and concise statement of the relief to which she is entitled on behalf of her children.

Petitioner does not appeal from the decision of a hearing officer pursuant to '4404 of the Education Law. Instead, this appeal is brought pursuant to '310 of the Education Law, that authorizes the Commissioner to review petitions by an "aggrieved party" from any "official act or decision of any officer, school authorities, or meetings" concerning any matter under the Education Law.

Petitioner has failed to demonstrate a personal injury to her civil, personal or property rights or those of her children resulting from a lack of legal representation at an impartial hearing and is, therefore, not an "aggrieved party" under '310 of the Education Law (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 53; Application of a Child with a Handicapping Condition, 29 id. 486). In the instant appeal, petitioner seeks a declaration from the Commissioner about events that she alleges either occurred in the past to children with handicapping conditions, including her own, or which she anticipates will occur in the future. As to the allegations regarding prior hearings, the issues are moot (Appeal of Sileo, et al., 28 Ed Dept Rep 313; Appeal of Rondot, 27 id. 143). As to allegations regarding future appeals, the allegations are premature and, as such, are not ripe for review (Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 245; Matter of C. St. Cyr, 27 id. 351). As to allegations brought on behalf of children with handicapping conditions who are not her own, petitioner lacks standing (Appeal of Trowbridge, et al. v. Hudson City School Dist., 27 Ed Dept Rep 252).

Further, petitioner did not commence this appeal within thirty days from the decision or act of a school district as required by Education Law '310 and 8 NYCRR '275.16. Rather, petitioner requests that the Commissioner render an advisory opinion on whether it is fair to allow a school board to be represented by legal counsel at an impartial hearing when a parent is not. To the extent that petitioner seeks an advisory opinion, the Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law '310 (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 262; Application of a Child with a Handicapping Condition, 30 id. 122; Application of a Child with a Handicapping Condition, 30 id. 53; Application of a Child with a Handicapping Condition, 29 id. 486; Application of a Child with a Handicapping Condition, 29 id. 87; Matter of Handicapped Child, 24 id. 223; Matter of Board of Educ., Bellmore-Merrick Cent. School Dist., 19 id. 484 reopening den 19 id. 484; Matter of Dell, 18 id. 351). Therefore, the petition must be dismissed.

Petitioner is reminded that general policy issues affecting handicapped children may be directed to the Office for Special Education Services. In this particular instance, however, the availability of free or low-cost legal services may be more effectively addressed by the appropriate bar association.

THE APPEAL IS DISMISSED.

END OF FILE