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Decision No. 13,708

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the William Floyd Union Free School District regarding an impartial hearing.

Decision No. 13,708

(November 27, 1996)

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

MILLS, Commissioner.--Petitioner challenges the appointment of Dr. Stanley Abrams by the Board of Education of the William Floyd Union Free School District ("respondent") as an impartial hearing officer.

Petitioner's son is a fourth grade student in respondent's district. On or about June 7, 1996, petitioner asked district officials to schedule an impartial hearing to resolve a dispute relating to her son's educational program. On June 17, 1996, respondent appointed Dr. Stanley Abrams as the impartial hearing officer for that hearing. In a notice dated June 25, respondent informed petitioner of Dr. Abrams' appointment and that the hearing was scheduled to commence on July 12. At the start of the hearing on July 12, petitioner asked Dr. Abrams to recuse himself, but he declined to do so.

Although not entirely clear from the petition, it appears that petitioner claims that Dr. Abrams was not legally appointed because the district's list of hearing officers was not lawfully constituted.

Respondent generally denies petitioner's allegations, and raises several affirmative defenses including untimeliness, failure to state a claim, and mootness. Respondent also questions the Commissioner's jurisdiction to entertain this appeal, which it claims should properly be before the State Review Officer.

The appeal must be dismissed because the matter is moot. This appeal was commenced on August 26, 1996. Three days later, on August 29, Dr. Abrams recused himself as hearing officer. It is well settled that the Commissioner will decide only matters which are 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 Berheide, 35 Ed Dept Rep 412; Appeal of Healy, 34 id. 611; Appeal of Lanoir, 34 id. 562; Appeal of Hartmann, 32 id. 640; Appeal of Heinz, 31 id. 326).

In view of this disposition, I will not address the parties' remaining contentions.