Decision No. 13,536

(January 23, 1996)

Shaw & Peterson, Esqs., attorneys for petitioner, Garrett L. Silveira, Esq., of counsel

RosaLee Charpentier, Esq., attorney for respondent parents

MILLS, Commissioner.--Petitioner seeks a determination that the hearing officer appointed to preside over an impartial hearing concerning a student with a disability is unqualified due to his lack of impartiality. The appeal must be sustained.

The appeal arises from off the record admissions made by the impartial hearing officer at one of the scheduled hearings. In March 1995, respondents requested an impartial hearing to review the appropriateness of an individualized education program for their child. Petitioner appointed an impartial hearing officer ("IHO") to preside over the hearing. Although it is not entirely clear from the record, it appears that several hearing dates were set up for May, June, July and August, and several adjournments were granted because the parties were engaged in settlement negotiations. The parties mutually waived the requirement that the IHO issue a determination within 45 days of petitioner's receipt of respondents' request for an impartial hearing (see, 8 NYCRR '200.5[c][11]).

On August 25, 1995, an additional hearing date was set for August 30, 1995. Counsel for petitioner advised the IHO that he was unsure of whether he was available for that date, but that he would telephone him to let him know. Apparently, counsel for respondents advised the IHO that she was available. At some point before August 30, 1995, petitioner's counsel called the IHO to let him know that he would be available on August 30, 1995. Both petitioner's counsel and the IHO informed respondents' counsel that the hearing would proceed as previously scheduled on August 30, 1995.

On August 30, 1995, petitioner's counsel, petitioner's witness, respondents, the stenographer and the IHO appeared for the hearing. When respondents' counsel did not show up, the IHO convened the hearing and then immediately recessed to ascertain whether respondents' counsel was going to appear. Both petitioner's counsel and the IHO spoke to respondents' counsel by telephone. After ascertaining that she would not appear, the IHO informed respondents that their attorney would not be present but that she would like to be contacted if there were any changes in the parties' positions. The IHO then asked petitioner's counsel how he proposed to proceed. Petitioner's counsel advised that the hearing could continue without respondents' counsel, that the parties could continue their settlement discussions or that respondents could withdraw their request for a hearing.

At that point, the IHO stated that, if the hearing were to continue, he could no longer serve as the IHO because he had become too familiar with the underlying facts and disputes to act impartially. He further stated that petitioner would have to appoint a new IHO because he would recuse himself on the grounds that he could no longer act impartially. The IHO then attempted, without success, to contact respondents' counsel. The matter was adjourned.

On September 5, 1995, the IHO issued an interim order directing petitioner to take certain actions. Petitioner's counsel objected to the interim order on the basis that, interalia, the IHO had admitted bias and indicated that he would recuse himself. At the next hearing date -- November 1, 1995 -- the IHO asked on the record whether anyone objected to his impartiality. Petitioner's counsel answered affirmatively, and then questioned the IHO about his statements concerning his lack of impartiality on August 30, 1995. The IHO denied that he made such statements and stated that his comments had been misconstrued. Thereafter, petitioner's attorney made a motion requesting that the IHO recuse himself, which was denied. Petitioner's attorney then asked the IHO for an adjournment to address the issue of the IHO's refusal to recuse himself. That request was also denied. This appeal immediately ensued.

Petitioner has asked that I stay any further proceedings before the IHO until the appeal is decided. Respondents' affidavit in opposition to the stay contains a full answer to the petition. Because respondents have had the opportunity to fully address the issues raised by petitioner, I will not decide the stay separately from the appeal, but will instead address the merits of the case.

In all instances, the integrity of the hearing process is preserved through the guarantee of impartiality. Either party has the right to challenge an IHO's impartiality. Typically, a challenge takes place in the early stages of a hearing, when the IHO discloses any possible conflicts of interest which may compromise his or her impartiality (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 240, 242; Appeal of a Child with a Handicapping Condition, 32 id. 3; and Application of a Child with a Handicapping Condition, 31 id., 65). "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. . . . 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" (Application of a Child with a Handicapping Condition, 31 id. 65; citing, Application of a Child with a Handicapping Condition, 28 id. 240).

The parties apparently had no objection to the IHO's impartiality on the first hearing date. Rather, the controversy arose from statements made by the IHO at a subsequent hearing date which cast doubt on his impartiality. The fact that the IHO was challenged at a later date, rather than at the commencement of the hearing when conflicts of interest are typically disclosed, is of no consequence. In the instant matter, it is clear that the IHO's own statements concerning his lack of impartiality are sufficient to threaten the integrity of the hearing process. Petitioner followed the proper procedures, i.e., made a motion to give the IHO the opportunity to recuse himself, which he declined to grant. Given his admission of bias and his subsequent refusal to recuse himself from further involvement in this matter, I direct that he be removed as the IHO for this proceeding.

In view of the foregoing, it is not necessary for me to grant petitioner's request for a stay.

IT IS ORDERED that the impartial hearing officer is hereby removed from any further role in this proceeding; and

IT IS FURTHER ORDERED that petitioner appoint a new hearing officer within seven (7) days of the receipt of this decision.

END OF FILE

---