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Decision No. 14,414

Application of A STUDENT WITH A DISABILITY, by his parent, for the removal of Dee Estelle Alpert as an impartial hearing officer in the Rondout Valley Central School District.

Decision No. 14,414

(August 4, 2000)

Family Advocates, Inc., attorneys for petitioner, RosaLee Charpentier, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Dee Estelle Alpert as an impartial hearing officer in the Rondout Valley Central School District. The application must be denied.

Petitioner’s son is classified as a student with a disability by the Committee on Special Education (CSE) of the Board of Education of the Rondout Valley Central School District ("board"). On August 27, 1998, petitioner requested an impartial hearing regarding her son. On October 13, 1998 the board appointed Dee Estelle Alpert as impartial hearing officer. After the hearing convened on December 10, 1998, the parties agreed to an adjournment for settlement purposes with Alpert retaining jurisdiction. The hearing resumed on May 24, 1999 and was completed on July 8, 1999. The transcript of the hearing was distributed to the parties on or about July 23, 1999. Alpert indicated on the record that she would render a written decision.

On April 11, 2000 the board commenced an appeal pursuant to Education Law "310 seeking an order directing Alpert to render a written decision immediately. On May 8, 2000, I ordered Alpert to issue within ten days a written decision on the record of the impartial hearing concluded on July 8, 1999 and provide a copy of said decision to my Office of Counsel immediately. Alpert failed to deliver such decision as ordered. I further ordered that, in the event Alpert failed to comply with the order, the board appoint a new hearing officer who shall issue a determination based upon the record of the hearing within fifteen days of appointment and to provide my Office of Counsel with written notification of the new appointment.

The board appointed a new hearing officer on May 30, 2000 who issued a decision in the hearing involving petitioner’s son on June 13, 2000.

On June 28, 2000, Alpert’s state certification as an impartial hearing officer was revoked and, as a consequence, she is no longer authorized to conduct hearings pursuant to Education Law "4404(1) in any school district in the State of New York.

The Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Davis, 38 Ed Dept Rep 805, Decision No. 14,148; Appeal of Angelo, 38 id. 803, Decision No. 14,147).

Revocation of Alpert’s certification as an impartial hearing officer has rendered this matter moot. Alpert was replaced by a different hearing officer in the hearing involving petitioner’s son and is no longer certified to conduct another hearing under Education Law "4404(1) in the Rondout Valley Central School District or in any other school district in the State of New York. Therefore, there is no present controversy, and the application must be denied as moot.

In addition, the application must be denied as jurisdictionally defective. Education Law "306 provides, in pertinent part:

  1. Whenever it shall be proved to his satisfaction that any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer… has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools… or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education, said commissioner, after a hearing… may …remove such school officer from his office.

The term "school officer" is defined in Education Law "2(13) as :

13. School officer. The term "school officer" means a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.

As an impartial hearing officer, respondent Alpert is not a "school officer" of the Rondout Valley Central School District as that term is used in "306. An impartial hearing officer is appointed to conduct a particular hearing involving one individual student on a case-by-case basis and has no authority or duty to administer the affairs of any public school system.

Rather, as plaintiff and her attorney have been advised repeatedly, the appropriate remedy when an impartial hearing officer fails to render a timely decision is an order issued pursuant to Education Law "310 directing the impartial hearing officer to render a decision (Matter of a Handicapped Child, 21 Ed Dept Rep 342, Decision No. 10,706). An impartial hearing officer who fails to comply with such an order is subject to revocation of his or her state certification which has the immediate effect of removing that individual’s authority to serve as an impartial hearing officer in any school district in the State of New York. As noted above, the state certification of the impartial hearing officer who is the subject of this application has been revoked and this application must be denied.

THE APPLICATION IS DENIED.

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