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Decision No. 13,806

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Morrisville-Eaton Central School District regarding impartial hearing officer appointment.

Decision No. 13,806

(August 1, 1997)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel


Petitioner challenges respondent's method of appointing impartial hearing officers. The appeal must be dismissed.

Petitioner's son is an eighteen-year-old eleventh grade student classified by respondent's committee on special education (CSE) as having a disability. Petitioner has requested several impartial hearings since December 1994 and her son is the subject of State Review Officer (SRO) Decisions 96-21, 96-23, and 96-35. The most recent of these SRO Decisions, 96-35, issued June 27, 1996, addressed interalia petitioner's claim that the impartial hearing officer ("IHO") who issued the decision under review was appointed improperly on September 14, 1995. On November 29, 1995, petitioner requested two hearings regarding her son's 1995-96 IEP. After exhausting the possibilities on its existing rotational IHO list, respondent adopted a new list on July 11, 1996 and appointed an IHO on July 22, 1996. On August 15, 1996, an agreement was reached between the parties resolving the issues before that IHO and all claims petitioner had against the district relating to the education of her son through June 30, 1996.

Petitioner contends that respondent has not selected IHO's properly in hearings she has requested since December 1994 and seeks an order instructing respondent on the correct method of appointing IHO's and requiring respondent to develop a new rotational list of IHO's who are not on the present "superintendent's hand-picked list". Respondent denies selecting IHO's improperly and contends, interalia, that petitioner's claims are moot because they pertain to matters which were settled pursuant to the parties' August 15 stipulation and order of settlement.

In an appeal before the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150) and the burden of establishing the facts upon which she seeks relief (8 NYCRR '275.10; Appeal of Nash, supra; Appeal of Haff, 35 id. 130). In this case, petitioner has failed to meet her burden. While it is unclear exactly which of respondent's actions petitioner is appealing, because her reply does not deny respondent's affirmative defense that she waived her instant claims by stipulation, to the extent petitioner appeals from respondent's selection of IHO's prior to and including selection of the IHO who presided over the parties' stipulation of August 15, 1996, her appeal is moot. 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 Greening, 36 Ed Dept Rep 394). To the extent petitioner appeals from the appointment of an IHO subsequent to the parties' stipulation, petitioner has not alleged facts adequate to determine when or whether such an appointment was made. Accordingly, petitioner has failed to demonstrate that respondent appointed IHO's in a manner inconsistent with the process required by Education Law '4404, 8 NYCRR 200.2(e), and the July 1996 memorandum issued by the State Education Department (see Appeal of a Student with a Disability, Ed Dept Rep , Decision No. 13777, dated 6/19/97), and, therefore, the appeal must be dismissed.


IN WITNESS WHEREOF, I, Richard P. Mills, Commissioner of Education of the State of New York, for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this day of August, 1997.



Commissioner of Education