Dominic v Saugus Public Schools – BSEA #02-3886



<br /> Dominic v Saugus Public Schools – BSEA #02-3886<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Dominic1 v Saugus Public Schools BSEA # 02-3886

RULING ON MOTION FOR RECUSAL

This ruling is issued pursuant to Parents’ January 31, 20032 Motion for Recusal of the Hearing Officer . As grounds for this motion, Parents assert that the Hearing Officer’s conference with Parents and School Counsel after the first day of hearing, along with Hearing Officer’s rulings regarding discovery issues, and her inquiry regarding a possible conflict of interest of Parents’ Counsel, render her unable to form an impartial opinion. Parents request that a substitute hearing officer be assigned to reconvene and complete the hearing, that the testimonial and documentary evidence from the hearing on January 27-28, 2003 be preserved as is and remain part of the record in the pending appeal, and that the Parties have an opportunity to review the transcript from January 27-28, 2003. Counsel also requests that subject to reasonable limitations, Parents and Saugus be given leave to call and examine additional witnesses at a resumed hearing, and that upon completion of testimony from additional witnesses, the Parties be permitted to submit written closing arguments within a reasonable period of time.3 Saugus opposed this Motion on February 5, 2003.

I. PROCEDURAL HISTORY

On May 10, 2002, the Bureau of Special Education Appeals (BSEA) received Parents’ request for a hearing challenging Saugus’ finding of no special needs and denial of their request for an IEP designating a residential program for Student. A hearing date was set for May 31, 2002. On that day both Parties filed a joint request to convert the hearing to a prehearing along with a joint request to postpone the May 31, 2002 date.

A prehearing conference occurred at the BSEA on June 25, 2002. At that time there was no dispute that Student, (d.o.b. 3/4/88) was in DSS custody pursuant to a CHINS petition taken out by Parents; that Parents retained educational decision-making authority; and that DSS placed Student at the Institute for Family and Life Learning (IFFL) because the CAP assessment team had determined that Student’s intent to bring a homemade pipe-bomb to school and his sexual abuse of his four year old cousin and two year old sister rendered it unsafe for him to live at home. The Parties also agreed that Student had good grades at his public school placement but disagreed about whether Student was making effective progress through his 504 Plan and whether Student required an IEP for a residential or private day program cost-shared with DSS. At the prehearing conference, the Parties agreed to reconvene the TEAM to consider evaluations that Saugus had not received and information from his placement at IFFL. The Parties agreed to reconvene the TEAM by September 6, 2002 and send the IEP to Parents and their Counsel by September 13, 2002. Parents were to respond to the IEP by September 21, 2002. Hearing dates were set for October 22, 24 and 25, 2002 with status conference dates of September 24, 2002 and an evidentiary prehearing (pretrial) date of October 4, 2002. On September 17, 2002, the hearing dates were released by mutual agreement of the Parties to allow Saugus to respond to Parents’ motion for a protective order to exclude documentary discovery due to social worker-client privilege and to allow both Parties to brief the issue. The matter was also continued to allow both Parties to obtain documents from IFFL and DSS that were not produced prior to the discovery deadline. On that day, Parents, through Counsel also filed an oral motion to conduct an oral deposition of Mother due to treatment for a potentially terminal illness. Saugus objected to an oral deposition. The Hearing Officer explored issues of demeanor. The Parties agreed to conduct a video deposition.

On October 11, 2002 Parents’ Counsel moved to postpone the video deposition. On October 25, 2002, the Hearing Officer allowed the motion. Parents’ Counsel did not reschedule the video deposition. Parents’ Counsel filed memoranda on October 18, 2002. School Counsel filed its memoranda on October 29, 2002.4 On November 15, 2002, the Parties reported that they had reviewed all available discovery and were ready to proceed to hearing. School Counsel orally moved to have a Court reporter transcribe the hearing. Parents’ Counsel agreed to the request.5 Mutually agreeable hearing dates were set for January 27-28, 2003.

On December 12, 2002, the Hearing Officer issued a ruling denying Parents’ motion to exclude parts of one of Student’s assessments on the ground that the social worker-client privilege did not apply because the Parent had raised Student’s emotional condition as an element of his claim for residential placement. In addition, the Hearing Officer also found, after reviewing that assessment and many other documents in-camera, that the confidential relationship between the DSS social worker and Parents did not outweigh the School District’s due process right to explore presentation of a defense to Parents’ claims; see M.G.L. c. 112 s. 135B, Ruling (Attachment A).

The hearing began on January 27, 2003. At the end of the day, after Parents had presented all their expert witnesses, the Hearing Officer spoke to Parents’ and School Counsel. She expressed her impressions about the possible inappropriateness of Student’s educational program at IFFL. The Parties were given the option of keeping the record open and scheduling an additional day if needed. She also explored whether DSS should be asked to participate (as a party6 or witness) in this proceeding, because testimony had been presented that incomplete relief may not be able to be granted without their participation.7 The Hearing Officer also explored issues of a possible conflict of interest between DSS’s and Parents’ position and a possible conflict of interest in Counsel’s representation of Parents.8

On January 28, 2003, Parents’ Counsel, over objection of the School District, moved to continue the hearing along with an oral motion for leave to file a motion to recuse the Hearing Officer. Counsel was allowed the opportunity to file a written motion for consideration. The motion for a continuance was denied. Both parties were given the opportunity to review and preserve the record created if the motion were to be allowed. Counsel then indicated that if the motion to continue were not allowed he and Mother would not continue with the proceeding. The Hearing Officer asked Counsel to proceed with Parents’ case but also allowed an opportunity to suspend Parent’s portion of the proceedings and allow the School to present its case after a short recess; see Transcript. Parent and Counsel did not return after the recess. Saugus presented a motion for a directed verdict in its favor. The motion was denied. The School District then proceeded with and concluded their case on that day.

ANALYSIS9

The standards established specifically for a BSEA Hearing Officer are found within the federal special education regulations implementing the IDEA (20 USC 1400 et seq.) and the state regulations implementing the state special education statute (MGL c. 71B). When addressing the issue of due process and an impartial hearing officer, the federal regulations provide:
(a) A hearing may not be conducted—

(1) By a person who is an employee of the State agency or the LEA that is involved in the education or care of the child; or (2) By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing.10

Similarly, the state regulations provide:

Mediations and hearings shall be conducted by impartial mediators and hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing or mediation . . . .11

The recusal standards for federal justices, judges and magistrates are found within 28 U.S.C. § 455. Subsection (a) of § 455 provides:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The federal First Circuit Court of Appeals has explained that this statute “forbids partiality whether grounded in an ‘interest or relationship’ or a ‘bias or prejudice’; and it forbids not only the reality of partiality but its objective appearance as well.”12 The United States Supreme Court has similarly characterized subsection (a): “Quite simply and quite universally, recusal [i]s required whenever ‘impartiality might reasonably be questioned.'”13 Although these statutory standards expressly apply only to justices, judges and magistrates, they may also be applicable to an administrative decision-maker.14

Article 29 of the Massachusetts Declaration of Rights establishes the right to have judges who are “free, impartial and independent”.15 The Massachusetts Supreme Judicial Court (SJC) has indicated that the protections contained within this constitutional mandate are generally no greater than are provided for pursuant to Massachusetts conflict of interest law16

That law, as contained in SJC Rule 3:09, Canon 3A, section 3(C)(1), requires a judge to recuse himself whenever “his impartiality might reasonably be questioned.” Circumstances where a judge’s impartiality might reasonably be questioned include instances where the judge “has a personal bias or prejudice concerning a party, has personal knowledge of disputed evidentiary facts concerning the proceeding, has served as, worked in a firm with, or been a material witness concerning the matter or has (or close family member has) a financial or other property interest in the proceedings that could be substantially affected by the outcome of the proceedings. . . .”17 . A comparison of these state standards with the above-described federal recusal standards indicates that the state and federal standards are substantially the same and both require an “objective appraisal” of whether the decision-maker’s impartiality might reasonably be questioned.18

The SJC has concluded that the state judicial recusal standards are equally applicable to a “disinterested person whose function is essentially judicial” – for example, a person holding a hearing, taking evidence and making findings of fact. The SJC has also explicitly found that these standards extend to administrative hearing officers, as well as masters, auditors and all other persons authorized to decide the rights of litigants .19 As such, these state standards apply to recusal of a BSEA Hearing Officer in the instant dispute; and by analogy, if not directly, the federal recusal standards also apply.

When considering recusal, a judge must consult first her “own emotions and conscience” to determine whether she is free from bias or prejudice20 . If the judge determines she is impartial, then she must objectively evaluate whether this was a proceeding in which “[her] impartiality might reasonably be questioned.21 The decision-maker must make an objective, fact-based inquiry as to what a “reasonable man” would likely conclude, rather than simply inquire as to what may be in his or her own mind or that of the litigants.22 The First Circuit Court of Appeals has explained clearly this objective inquiry:

The statute requires a judge to step down only if the charge against her is supported by a factual foundation and the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality.23

In addition, the alleged bias and prejudice to be disqualifying must rise from an extrajudicial source and not from something learned from participation in the case or by prior rulings fairly made that may be unsatisfactory to one Party.24 Finally, in determining whether impermissible bias exists requiring recusal, the decision-maker is allotted a certain degree of discretion. Reversal on appeal occurs only upon a showing that the decision-maker abused this discretion.25 Case law shows that courts are generally reluctant to establish any criteria that automatically must result in recusal. Even where there may be a significant potential for impermissible bias (either actual or by appearance), the recusal determination typically turns on the facts.26

The impartiality of a fact-finder, as well as the appearance of impartiality, is an essential element in conducting a fair hearing. BSEA Hearing Officers do not take cases in the community where they reside or cases in which a close family member may work for the town or school district. This Hearing Officer, among others, has not taken matters where she has a personal or former professional relationship with Parent, School District or Agency Counsel or a parent or teacher. This Hearing Officer has also explored potential conflicts, and although not required, has not participated in professional development opportunities where the presence of a Hearing Officer may inhibit discussion. When necessary, Hearing Officers have sought the guidance of the Massachusetts Ethics Commission.27 . Hearing Officers, being human, have also not taken cases or have recused themselves from ongoing matters, when impartiality may be compromised.

After examining her own emotions and conscience in this matter, as well as the instant record, this Hearing Officer has determined that she can render an opinion based solely on the evidence presented in this matter and does not believe that her impartiality could reasonably be questioned. As such, Parents’ Motion for Recusal is denied. Parents’ Counsel however, will be given the opportunity to review the transcript and will be given the opportunity to present a motion to have the Hearing Officer consider Parents’ request to call and examine additional witnesses and present written closing arguments in this matter. My rationale follows:

I. Colloquy between the Hearing Officer and Counsel for the Parties

Parents, through Counsel, assert that the Hearing Officer’s colloquy with him and the School District attorney, together with scheduling, discovery and evidentiary rulings and the Hearing Officer’s exploration of Parents’ position and Counsel’s role with DSS render her unable to impartially preside over this matter.

Counsel, in his brief, states that “private conferences and colloquies with counsel by judges and hearing officers are routine occurrences and part of the usual give-and-take of the adversarial process. A fact finder’s off the record observations and candid assessment of the status of the case after a first day of trial is not an unusual phenomenon. A Hearing Officer is uniquely positioned to probe for settlement opportunities and instruct the parties on unresolved issues. In particular, a BSEA hearing officer retains the inherent authority to enter rulings for services and placements which none of the parties have considered. Therefore, use of a private conference with counsel to explore such alternatives can result in an unexpected and expeditious resolution of protracted litigation. If a single colloquy with the hearing officer was advanced as justification for the interruption of a hearing in progress, any disgruntled or discontented litigant could grasp at such a straw as a pretext to extricate himself from an unpromising start”. This conference was done because of undisputed evidence presented, that Student, who has good academic grades, good behavior in the public school28 , and a reading level above the 12 th grade level, was placed with students with language-based learning disabilities and disruptive behavior and was taking a test preparation course, not because he needed it, but because that was required of all students at that private school.29 During that first day of hearing, two of Parents’ witnesses presented testimony that raised questions about whether DSS had, could or should explore less restrictive living arrangements that could be coordinated with a public school program. As such, the Hearing Officer explored whether DSS should be asked to participate in these proceedings either as a witness or as a party. Parents’ Counsel’s reaction to involving DSS at the prehearing and at the hearing stage raised questions about whether DSS’s funding of Student’s private placement and Parents’ representation enabled Counsel to explore less restrictive options for Student with Parents.30 Counsel was offered the opportunity to finish Parents’ case that day and/or schedule another day of hearing for the remainder of Parents’ witnesses. Both Parties were offered the opportunity to keep the record open to schedule an additional day of hearing for rebuttal. Parents’ Counsel chose to leave the proceedings. Counsel may not like the Hearing Officer’s preliminary assessment of Parents’ case or exploration of Parents’ position; however, the alleged bias and prejudice to be disqualifying must rise from an extrajudicial source and not from something learned from participation in the case31 . The Hearing Officer’s assessment of the private placement made in this case was based on the evidence presented and as such the conversations regarding it are not appropriate grounds for recusal.

II. Discovery Issues

Parents also assert that the Hearing Officer’s rulings on discovery32 issues render her unable to fairly determine the outcome of the hearing.

A. The IFFL IEPs

Saugus, in its discovery request, requested the IEPs of all the students enrolled in Student’s classes and activities at IFFL. Parents’ Counsel opposed this request. He did inform the Hearing Officer and School Counsel that he has encouraged IFFL to cooperate in good faith with School Counsel’s request but had no ability to enforce such compliance. The Hearing Officer determined that the IEPs (redacted for confidentiality) are relevant to the issue of whether Student requires a residential program at IFFL to receive a FAPE and gave Saugus leave to access the IFFL education plans through a subpoena and order. Parents, through Counsel, orally requested that Saugus produce sanitized IEPs of Saugus students previously enrolled at IFFL over the last five years. That request was denied because Parents could not show that Saugus’s placement of other students at IFFL was relevant to the determination of whether Saugus’s finding of no special needs for Student was appropriate or that Student educationally required a program at IFFL to receive a FAPE. Parents or their Counsel may not agree with the ruling; however, Counsel’s displeasure that this discovery ruling was not in Parents’ favor does not constitute grounds for recusal.

B. Privilege Issues

Saugus also requested discovery of the release of Student’s DSS records. Parents, through Counsel, objected to release of one of the assessments pursuant to the social worker-client privilege. Counsel, at the Hearing Officer’s suggestion at a teleconference, filed a motion for a protective order. Both Parties were given the opportunity to file memoranda in support of their positions. Both Parties’ motions for extension of time were granted without objection. After considering the memoranda, conducting an in-camera review and reviewing relevant case law, the Hearing Officer ruled that the assessment was discoverable; see Ruling. Counsel’s displeasure that this discovery ruling was not in Parent’s favor also does not constitute grounds for recusal.

C. Deposition Issues

Parents, through Counsel, also requested permission to depose Mother in lieu of presenting her testimony at hearing because Mother was undergoing medical treatment. Saugus objected to a written deposition. The Hearing Officer, with the Parties, explored options for obtaining Mother’s testimony while also judging credibility and demeanor. An option for continuing the proceeding was not rejected by Counsel. Both Parties agreed to have Mother present her testimony through a video deposition. Counsel chose to schedule the deposition at the BSEA despite information that a room was not available, and may not be available, on the day selected. When the room remained unavailable, Counsel did not choose to reschedule and Mother did appear at hearing. While Parent may have preferred a written deposition, this ruling did not impede either parent’s ability to present testimony in this matter and as such is not prejudicial nor is this grounds for recusal.

III. Scheduling Issues

Counsel also asserts that the Hearing Officer favored the School District in scheduling of the hearing and as such cannot render an impartial decision.33 A review of the record shows that Parents did not request, and, further agree that Parents did not meet the standard for an emergency hearing . A hearing date was set for May 31, 2002. On that day both Parties filed a joint request to convert the hearing to a prehearing along with a joint request to postpone the May 31, 2002 date, and a prehearing occurred on June 25, 2002 with the assent of both Parties. Both Parties agreed at the prehearing to reconvene the TEAM during the first week of September 2002 to consider evaluations that Saugus had not received earlier, and receive information from Student’s placement at IFFL. Neither party objected to the date by which the TEAM was to reconvene. October hearing dates were picked without objection. The October hearing dates were continued because Parents were not able to produce discovery to Saugus, Parents’ had raised a privilege issue that needed to be briefed and considered and Parent became ill and was not able to make the hearing dates scheduled. Both Parties agreed to January dates to accommodate Mother’s medical treatment and to allow both Parties to obtain and review discovery. Student remained placed at the program that Parents wanted. As such, Parents were not prejudiced.34

IV. Trial Issues

A. Transcription issues

Parents assert that the Hearing Officer’s granting of Saugus’s motion for a transcript of the hearing was improper. Saugus’s request for a transcription was made during a prehearing conference call and was allowed with the assent of Counsel. School District Counsel filed a written motion for a transcript prior to the start of testimony on the first day of hearing. Parents’ Counsel assented to the motion. In addition, Counsel has requested and was granted an expedited transcript to prepare for his written motion to recuse and a transcription of the proceeding was sent to Counsel to prepare for closing arguments. Parents have not shown that they were harmed by the granting of Saugus’s motion; nor is the ruling a basis for a motion for recusal.

B. Witness Selection

Finally, Parents assert that they were not allowed to call Student’s psychiatrist. Counsel did not ask for, nor did the Hearing Officer make any ruling precluding any witnesses. As with all cases, the Hearing Officer instructed both Parties to limit witness testimony to evidence that was not duplicative of what would be presented through the documents or other witnesses. Student’s psychiatrist was not listed on Parents’ witness list. Counsel was given the option of holding the hearing open and scheduling an additional day of hearing for rebuttal testimony. This option is still open. If Parents would like to proceed with this matter, Parents’ Counsel will, no later than March 14, 2003, contact the scheduling clerk at 781-338-6407 with available dates for hearing.

CONCLUSION

For these reasons, Parents’ Motion for Recusal is DENIED.

By the Hearing Officer,

_________________

Joan Beron

Dated: February 27, 2003


1

Dominic is a pseudonym used for confidentiality and classification purposes


2

A Hearing on this matter occurred on January 27-28, 2003. On January 28, 2003, Parents Counsel moved to postpone the second day of hearing and moved for leave to file a motion to recuse the Hearing Officer on January 31, 2003. Saugus opposed the motions. The motion to continue was denied; however Counsel was permitted to file their written motion. Parents’ motion was filed on January 31, 2003. On February 5, 2003 Saugus filed its opposition.


3

Counsel does not define what reasonable limitations would be or indicate what additional witnesses Parents may wish to call.


4

The Parents’ and School District’s attorney each asked for extensions of time to file their memoranda. The extensions were granted with the assent of the other party.


5

The Court reporter was scheduled and appeared at the Hearing. School Counsel was directed to follow through with a written motion prior to the hearing. School Counsel submitted an unopposed written motion on January 27, 2003.


6

An agency (or any additional party) would not be joined in a proceeding without being given an opportunity to present its position and/or a defense.


7

Parents’ Counsel objected to joinder of DSS but indicated that he would be speaking to the DSS social worker that evening and would ask her to participate. School Counsel offered an alternative exploration for relief in another forum.


8

Counsel chose not to respond to most of the Hearing Officer’s questions. No conclusion has been made regarding this issue.


9

Excellent analysis has been provided by Hearing Officer Crane in Marblehead Public Schools , 8 MSER 84 (2002).


10

34 CFR 300.508(a).


11

603 CMR 28.08(3).


12

U.S. v. Snyder , 235 F.3d 42, 45 (1 st Cir. 2000), quoting Liteky v. United States , 510 U.S. 540, 548 (1994).


13

Liteky v. United States , 510 U.S. 540, 548 (1994), quoting 28 U.S.C. § 455 (a).


14

See Withrow v. Larkin , 421 U.S. 35, 46 (1975) (applying due process fair trial standards to an administrative agency).


15

Article 29 provides in part: “It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.”


16

Varga v. Board of Registration of Chiropractors , 411 Mass. 302, 306 (1991).


17

SJC Rule 3:09, Canon 3A, Section 3(C) (1): “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party , or personal knowledge of disputed evidentiary facts concerning the proceeding; has served as a lawyer in the matter of controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter or the judge or such lawyer has been a material witness concerning it; (c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial or other property interest in the subject matter in controversy or in a party to the proceeding, which interest could be substantially affected by the outcome of the proceedings; (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judge’s knowledge likely to be a material witness in the proceeding.. . . .” ; Haddad v. Gonzalez , 410 Mass. 855, 862 (1991).


18

Demoulas v. Demoulas Super Markets, Inc ., 428 Mass. 543, 546 n. 6 (1998) and cases cited therein.


19

Police Commissioner of Boston v. Municipal Court of West Roxbury District , 368 Mass. 501, 507 (1975); Beauregard v. Dailey , 294 Mass. 315, 324-325 (1936).


20

Haddad v Gonazlez , 410 Mass. 571, 575, 862 (1976) , quoting Lena v. Commonwealth , 369 Mass. 571, 575 (1976).


21

Haddad v Gonazlez , 410 Mass. 571, 575, 862 (1976), quoting S.J.C. Rule 3:09, Canon 3 (C) (1).


22

Cigna Fire Underwriters v. MacDonald & Johnson, 86 F.3d 1260 (1 st Cir. 1996). See also the Massachusetts cases cited in footnote 15 above.


23

In Re: United States , 666 F.2d 690, 695 (1st Cir. 1981) (emphasis in original) (internal quotations omitted), quoted with approval in In re United States , 158 F.3d 26 (1 st Cir. 1998).


24

Commonwealth v. Gogan, 389 Mass. 255, 259 (1983), Accord United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); See Demoulas v. Demoulas Super Mkts., Inc ., 424 Mass. 501, 524-525 (1997), S . C ., 428 Mass. 543 (1998).


25

Herridge v. Board of Registration in Medicine , 420 Mass. 154 (1995); Haddad v. Gonzalez , 410 Mass. 855, 862 (1991). The federal First Circuit Court of Appeals explained it as follows:

[T]he analysis of allegations, the balancing of policies, and the resulting decision whether to disqualify are in the first instance committed to the district judge. And, since in many cases reasonable deciders may disagree, the district judge is allowed a range of discretion. The appellate court, therefore, must ask itself not whether it would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by [a] reasonable reading of the record. In re United States , 666 F.2d 690, 695 (1st Cir. 1981).; The matter of recusal is generally left to the discretion of the trial judge, see Care & Protection of Martha, 407 Mass. 319, 329 n. 10 (1990); Fogarty v. Commonwealth , 406 Mass. 103, 111 (1989).


26

See, e.g., In re United States , 158 F.3d 26 (1 st Cir. 1998) (“Typically, cases implicating section 455(a) are fact-specific, and thus sui generis .”)


27

Permission was received from the Commission and from both Parties to send a sympathy card and a small charitable donation to a Parent whose child had died.


28

Evidence was presented on the second day of hearing that Student had three minor infractions requiring discipline (making a spitball, leaving the room without permission to go to the bathroom and not reporting to an afterschool obligation). This information was also contained in admitted documentary evidence reviewed prior to the hearing.


29

Other evidence was also presented regarding the qualifications of the teachers and other aspects of Student’s program at the private day school that raised questions regarding its appropriateness for Student.


30

see e.g. . Petitions of Catholic Charities Bureau of the Archdiocese of Boston, Inc to Dispense with Consent to Adoption, 22 Mass. App. Ct. 48 490 N.E.2d 1207 (1986) (concurring opinion) “An attorney, …, must be a strong and forceful advocate. But often, …, untempered advocacy may transcend the bounds of proper professional conduct. Zealous advocacy is commendable; opposition for the sake of opposition is wasteful and unprofessional. See S.J.C. Rule 3:07, DR 1-102(A)(5), as appearing in 382 Mass. 769-770 (1980). In this case, however, the father desired neither custody nor visitation. An attorney’s role is not to obscure the true situation or to press foredoomed and bogus claims merely because he represents a client. Such thoughtless practices cause undue delay and “unfairly consume public resources without any corresponding benefit to the administration of justice.” Cf. Commonwealth v. Pisa, 384 Mass. 362, 366 (1981). In examining the sensitive questions involved in attempting to discern the best interests and welfare of a child, we need neither clutter nor disingenuous arguments. There is too much at stake…”


31

Kennedy v. Justice of the Dist. Court of Dukes County, 356 Mass. 367, 379 (1969). Accord United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).


32

Discovery is permitted in special education administrative hearings pursuant to M.G.L. c. 30A and the BSEA Special Education Hearing Rules.


33

Counsel also made a general allegation that all BSEA hearings are not scheduled expeditiously when a student is in DSS custody. Students in DSS custody should receive the same due process considerations as all other students. School Districts defending (or bring actions for) educational placements should also receive the same due process rights to conduct discovery for students in DSS custody or placements.


34

If the evidence does show that IFFL is inappropriate Student may in fact have benefited from an earlier date (assuming that Parents or DSS) would then have arranged for an alternate placement. The remedy however is not the further delay that would occur in assigning a new Hearing Officer.


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