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Decision No. 14,759

Appeal of AARON TYK from action of the Board of Education of the City School District of the City of New York regarding an impartial hearing.

Decision No. 14,759

(July 24, 2002)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield, Assistant Corporation Counsel, of counsel

MILLS, Commissioner.--Petitioner challenges action by the Board of Education of the City School District of the City of New York ("respondent") regarding his appointment and jurisdiction as an impartial hearing officer. The appeal must be dismissed.

On November 6, 2001, respondent"s impartial hearing office received a request for an impartial hearing seeking tuition reimbursement in a special education case. On November 7, 2001, respondent appointed petitioner as impartial hearing officer (IHO) in the case originally scheduled for November 8, 2001, but adjourned to December 12, 2001. Petitioner was advised that the case manager would notify him of any communication received by respondent"s impartial hearing office regarding the case and would be available to answer his questions. On November 8, 2001, the hearing request was withdrawn.

Upon being informed that the request was withdrawn, petitioner, nevertheless, attempted to issue a decision requiring the parties to submit to his jurisdiction for any future hearing on this parent"s tuition reimbursement claim. Respondent"s impartial hearing office did not issue the decision petitioner drafted because the case had been withdrawn. Petitioner commenced this appeal on November 29, 2001, seeking an order granting him jurisdiction over any future hearing request by this parent on the tuition reimbursement claim raised in the November 6 request that was withdrawn. A request for interim relief was denied on January 7, 2002.

Petitioner contends that the hearing request was withdrawn in order to "judge shop" and that settlement was a mere pretense. Petitioner also contends that the request was withdrawn to subvert the 45-day timeframe within which the parent is entitled to a decision. Petitioner argues that the parent should be required to submit to his jurisdiction if a future hearing request is submitted on the same claim. Petitioner further contends that respondent failed to file its answer in the time required by regulation.

Respondent contends that petitioner lacks standing because he has suffered no personal damage or personal inquiry to civil, personal or property rights and because he cannot assert the rights of others. Respondent also contends that, as a matter of law, petitioner cannot assert jurisdiction over a hearing that has been withdrawn and that the IHO listed next alphabetically must be appointed to hear the case if a subsequent request is filed. Respondent further contends that, as petitioner acknowledges, the case is moot because the request for the hearing he was appointed to decide was withdrawn and a settlement reached by the parties.

As a threshold matter, I must address the procedural issues. Petitioner asserts that he consented to an extension of time for respondent to file its answer but contends that the extension should not have been granted because respondent"s application was not timely and made in writing. The answer was due December 18, 2001, 20 days from service of the petition, but was not served by mail until January 16, 2002. By letter dated December 20, 2001, respondent"s counsel confirmed a telephone conversation with my Office of Counsel granting an extension of time to answer the petition until January 18, 2002. Although "276.3 of the Commissioner"s regulations provides that the application "shall be in writing," in this case the confirmation was in writing and petitioner was not prejudiced by the extension to which he consented, as he submitted a reply addressing the defenses raised in the answer.

Respondent contends that petitioner lacks standing because he fails to allege any concrete facts or cite any specific law or authority upon which he can demonstrate any real damage or personal injury to civil, personal or property rights. Pursuant to Education Law "310, an individual may not maintain an appeal unless he or she has suffered personal damage or injury to his or her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Lucente, 39 Ed Dept Rep 244, Decision No. 14,227; Appeal of Morris, et al., 38 id. 427, Decision No. 14,066). Petitioner asserts that he is a certified IHO and has suffered personal damage or injury to his legal right to serve in that position in this particular hearing. Respondent admits that petitioner was appointed on November 7, 2001 as IHO for the particular hearing in question and that his appointment was terminated upon withdrawal of the hearing request on November 8, 2001. I, therefore, find that petitioner was directly affected by the action being appealed and has standing to bring this appeal to challenge respondent"s action related to his appointment in this particular hearing.

The other procedural issue raised is mootness. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Gaul, et al., 40 Ed Dept Rep 105, Decision No. 14,432; Appeal of Brown, 39 id. 341, Decision No. 14,254).

With regard to respondent"s contention that the appeal is moot because the parent withdrew the hearing request and agreed to settle the underlying dispute, it is precisely the withdrawal of the hearing request that gave rise to petitioner"s claim. Under such circumstances, I do not find petitioner"s claim moot.

The appeal must, however, be dismissed on the merits. Although petitioner raises the conclusory claim that his appointment should have continued because there may have been an attempt by the parent to withdraw the hearing request in order to "judge shop," the record is devoid of any proof supporting this allegation.

In an appeal to the Commissioner, petitioner bears the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Appeal of Logan, 38 id. 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Petitioner has not demonstrated a clear legal right to continue his appointment as IHO after the hearing request was withdrawn and has not established facts proving that respondent improperly terminated his appointment.

Indeed, respondent"s appointment power is triggered by the parent"s request pursuant to Education Law "4404(1) and the parent has the right to withdraw that request. Moreover, respondent is not permitted to submit parties to the jurisdiction of an IHO for future hearings because it must make appointments from a rotational list in alphabetical order (8 NYCRR "200.2[e][1][i]-[ii]). Therefore, upon the record before me, I cannot find that respondent"s termination of petitioner"s appointment as IHO upon withdrawal of the hearing request in this case was arbitrary, capricious or unreasonable.