COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re : Student v. Attleboro Public Schools
BSEA # 09-6759
Parents’ Motion to Recuse Hearing Officer
On October 2, 2009, Parents in the above-referenced matter filed a Motion for Recusal of the Hearing Officer, alleging bias towards the school district and challenging the competency of the Hearing Officer. In support of their Motion, Parents stated that the Hearing Officer granted a request for postponement of the original hearing date one business day prior to the hearing where the Hearing Rules for Special Education Appeals stated that except in extraordinary circumstances postponement requests must be submitted at least five business days prior to the hearing date. Parents state that the district’s belief that the case was going to settle did not constitute an extraordinary circumstance, and that her statement that Parents assented to the postponement was incorrect as one of Parents’ attorneys filed an objection to the postponement the same date. Parents also stated that Attorney Lyons, another attorney in the law firm representing the district, had signed the return receipt indicating that Attorney Tate’s office had received Parents’ discovery documents on August 19, 2009 when Attorney Tate stated that she had received them on August 20, 2009.
Parents further state that Attleboro’s motions for postponement were granted over Parents’ objections in the case at bar, while in a different case the same Hearing Officer had denied a parent’s motion to postpone a hearing. According to Parents, this creates a contradiction and Parents conclude that if a school district requests a postponement, it is granted over a parents’ objection but when a parents requests a postponement, it is denied if the school objects. Parents conclude that this shows bias.
Parents also state that the Hearing Officer failed to state the reasons for granting the postponement, and failed to simultaneously schedule a new hearing date.
Parents also submit that an error was made in a previous Ruling by the Hearing Officer in this matter which stated that the placement decision “was the result of a team process held on June 12, 2007”, while disregarding evidence submitted by Parents. Parents allege that fraudulent information was given at the team meeting. They also state that the Hearing Officer failed to consider information presented by Parents in her findings of fact. They argue that they did not receive procedural safeguards during the 2007-2008 school year, so they did not know that they could request a hearing, and state that this was disregarded by the Hearing Officer. Parents surmise that this shows an inability on the part of the Hearing Officer to interpret the laws. Parents also state that statements made by the special education director regarding approval of schools for all students, including those with Student’s condition, is a violation of the IDEA.
As a result, Parents question the competency, impartiality and integrity of the Hearing Officer, asserting that since they are appealing the portion of the ruling granting Attleboro’s Motion to Dismiss for the 2007-2008 school year, the Hearing Officer cannot provide an impartial analysis of the remaining issue. As such, Parents request recusal of the Hearing Officer.
In an addendum submitted on October 6, 2009, Parents further state that the Hearing Officer “incorrectly limited the scope of the hearing to exclude facts and allegations that supported Parents’ argument of coercion.” Parents state that the facts that supported their allegation of coercion were not issues for which they sought resolution but rather 2009 factual matters in support of their claim for reimbursement. According to Parents, the Hearing Officer addressed the allegations of coercion but failed to consider factual matters regarding procedural violations and false information which Parents assert were supplied to Student’s Team. Parents reason that because the aforementioned was mentioned in the letter forwarded by Parents in late August 2009, stating the remaining issue between the Parties1 , as well as in the initial Hearing Request, it should not have been excluded from the scope of the hearing. Parents state that the letter was not intended to serve as a revised hearing request or notification of settlement but rather to inform the Hearing Officer that Parents would no longer be represented by either of their two attorneys, but would proceed pro se . Parents argue that the Hearing Officer’s disregard of the information implies that she is “unwilling or unable to remain impartial”.
Attleboro responded on October 5, 2009, Opposing Parents’ Motion to Recuse the Hearing Officer. Attleboro interprets Parents’ Motion to be based on three issues, which are: (1) granting Attleboro’s request for postponement one day before the hearing; (2) granting all the school’s postponement requests; and (3) disagreement with a recent Order partially dismissing Parents’ claim.
Regarding the first allegation, Attleboro points out that an order dated June 11, 2009 issued by the Hearing Officer, listed the hearing date of August 24, 2009 at 10:00 AM, and specified that exhibits and witness lists were due by the close of business on August 17, 2009 (SE-1). Attleboro states that it served its request for discovery on June 25, 2009 and as of August 12, 2009 it had not received the responses. Additionally, Attleboro sought clarification of the issues for hearing and requested an emergency conference call via letter also dated August 12, 2009 (SE-2). During the conference call (in which Parents’ interests were represented by one of their attorneys) the issues regarding discovery, deadlines for exhibits and the remaining issues for hearing were discussed. Attleboro asserts that Parents’ Attorney agreed to respond to discovery requests by August 17, 2009. An Order was subsequently issued extending the deadline to submit exhibits and witness lists to August 19, 2009 (SE-3).
Attleboro disputes Parents’ assertion that Parents’ exhibits were delivered before August 20, 2009, asserting that counsel for the District received them during a meeting between herself and other colleagues regarding this matter. Attleboro further denies Parents’ statements and representations regarding the events, and substance of the events, regarding delivery and receipt of Parents’ exhibits. Attleboro states that Parents’ Exhibits were not received by her until August 20, 2009, four (4) business days prior to the scheduled hearing, in contravention of Rule IX (A) of the Hearing Rules for Special Education Appeals (“the five day rule”) (SE-4).
Attleboro further states that when it requested a postponement of the hearing scheduled for August 24, 2009, it did so with permission of the two attorneys representing Parents. Additionally, this extension was discussed during an emergency conference call with counsel for the district, one of Parents’ counsel and the Hearing Officer held on August 14, 2009. Contrary to Parents’ assertion that their attorneys did not assent to the postponement, Attleboro states that Parents’ counsel initially objected and later “graciously assent[ed] to the postponement” (SE-5). Attleboro concludes that the Hearing Officer therefore had an unbiased basis for continuing the hearing.
Regarding Parents’ claim that the Hearing Officer has granted all of Attleboro’s requests for postponements, Attleboro states that there have been two requests for postponements; the first request was to postpone the IDEA (automatic) hearing date, and the second was the request mentioned above to which Parents’ counsel at the time assented. Attleboro argues that neither postponement was unreasonable, egregious, or resulted in harm to Student’s right to a due process hearing. Attleboro states that the Hearing is scheduled for November 2009. Attleboro asserts that Parents have no evidentiary basis to allege bias towards it by the Hearing Officer.
Regarding Parents’ challenge to the competency of the Hearing Officer, Attleboro strongly objects stating that the basis of Parents’ argument is their disagreement with a Ruling on Attleboro’s dismissal motion with which Parents disagreed. The Hearing Officer’s credentials and responsibilities were thoroughly discussed in In Re: Bridgewater-Raynham Regional School District v. Student , BSEA #09-8323 (2009), and Attleboro disagrees with Parents’ challenge of incompetence and states its belief that the Hearing Officer has demonstrated competent expertise during her involvement with the case. Attleboro therefore moves for denial of Parents’ Motion for Recusal of the Hearing Officer.
Ruling:
This Ruling is issued in consideration of the arguments and documents proffered by the Parties as well as by having taken administrative notice of the BSEA file.
As discussed in In Re: Bridgewater-Raynham Regional School District v. Student , BSEA #09-8323 (2009),
The IDEA statute and regulations2 set out the minimum standards for qualification of BSEA hearing officers. Similar considerations alluding to the objectivity and professional competence of hearing officers appear in the Massachusetts special education statute and regulations3 . The standards embodied in the aforementioned statutes and regulations seek to assure that the matters presented before the BSEA will be decided impartially and fairly.
When a party in the context of a BSEA matter makes a motion for recusal of a hearing officer, that party must set out the facts to support said request and the hearing officer is then responsible to evaluate the facts alleged, search his/her own conscience regarding his/her ability to remain impartial, and also examine his/her actions from the perspective of the litigants as well as the general public. Ishmael & Duxbury Public Schools , BSEA # 09-1986 (11/04/08, Byrne), citing Litkey v. U.S ., 510 U.S. 540 (1994); Comfort v. Lynn School Committee , 418 F3d 1 (1 st Cir. 2005); In Re: Boston’s Children First , 244 F.3d 164 (1 st Cir. 2001); U.S. v. Snyder , 235 F.3d 42 (1 st Cir. 2000). See also, Marblehead Public Schools , 8 MSER 84 (3/19/02, Crane), for a detailed discussion and guidance on ethical considerations, and judicial opinions regarding recusals.
In the case at bar, Parents challenge the Hearing Officer’s impartiality, integrity and competence, as a result of her: 1) having granted a postponement of the hearing one day before the hearing; 2) granting all of the postponements requested by Attleboro; and 3) allegedly committing errors of law as a result of disagreeing with a recent order partially dismissing Parents’ claim. As in the Bridgewater-Raynham Regional School District’ case, Parents’ concerns call for both objective and subjective consideration.
Parents’ request for hearing in the instant case was received at the BSEA on May 6, 2009. On May 7, 2009, a Notice of Hearing was issued by the Bureau of Special Education Appeals (BSEA) scheduling a conference call with the Parties for May 26, 2009 at 4:00 PM, and a Hearing on June 10, 2009 (automatic hearing date). Via Order issued on May 12, 2009, the time of the conference call on May 26, 2009 was changed to 4:40 PM on the same date. On May 15, 2009, Attleboro filed a request for postponement of the hearing and a request to extend the timelines to respond to Parents’ Hearing Request4 . Attleboro’s request was granted and its response to Parents’ Hearing Request was received on May 22, 2009.
On May 26, 2009, one of Parents’ two Attorneys5 , filed a request for postponement of the conference call. Parents’ request was granted and the telephone conference call was changed to June 1, 20096 via Order issued on May 29, 2009. During the telephone conference call, the Parties’ representatives notified the BSEA that the Resolution Session had been waived. Attleboro’s request for postponement was discussed and the Parties agreed that a Pre-Hearing Conference would be useful. Therefore, they agreed to use the automatic hearing date as the date for the Pre-Hearing Conference. An Order was issued on June 2, 2009, granting Attleboro’s request for postponement of the Hearing and scheduling the matter for a Pre-Hearing Conference on June 10, 2009.
On the date of the Pre-Hearing Conference, Parents sua sponte filed a Request for Expedited Hearing which request was withdrawn the same date as the document had not been filed in concert with Parents’ Attorneys.7 Hearing dates agreeable to both sides were selected at the Pre-Hearing Conference and commemorated in an Order issued on June 11, 2009. This Order set the following timelines and events: (1) a hearing officer initiated telephone conference call would take place on August 6, 2009 at 4:30 PM.; (2) exhibits and witness lists were due by the close of business on August 17, 2009; and, (3) the Hearing was scheduled for August 24, 2009. The June 11, 2009, Order further reflects the Parties’ agreement to re-convene Student’s Team on June 15, 2009.
On June 25, 2009, Attleboro served Parents with interrogatories and a request for production of document.
A telephone conference call was held on August 6, 2009. Following Attleboro’s request for emergency conference call due to uncertainty regarding the issues to be litigated at hearing and the outstanding discovery, another conference call was held on August 14, 2009 during which both issues were discussed. Parents were asked to submit a statement with the remaining issues, which was received at the BSEA on August 14, 2009. Due to the delay with the responses to discovery, and in light of Parents’ agreement to answer by August 17, 2009, the deadline to submit exhibits and witness lists was extended through August 19, 2009. This extension was reflected via Order issued on August 17, 2009. During the conference call the Parties’ attorneys communicated that they were attempting to settle the matter.
On August 21, 2009, Attleboro filed a Motion to Postpone the Hearing, stating that Attleboro was under the impression that the matter would settle, but had not yet heard from Parents’ attorneys. Attleboro further stated its intention to file a Motion to Dismiss/ Summary Judgment on the grounds that the BSEA lacked jurisdiction over the remaining issue between the Parties, namely transportation.8 Attleboro had discussed its intentions to file the motion with Parents’ attorneys, both of whom agreed to have that issue decided before proceeding with a hearing on the merits. Attleboro also raised the fact that it had not received Parents’ exhibits until Thursday August 20, 2009.
Two documents were received from Parents’ Attorney’s office on August 21, 2009, one objected to the postponement and rejected the settlement offer made by Attleboro, and the second one stated
With regards to the above-referenced matter, there has been some miscommunication in the office and we do graciously assent to the postponement. We have been trying to communicate with our clients to see if we can settle.
Attleboro’s Motion to postpone the hearing was granted on August 21, 2009.
Both Parents’ attorneys withdrew their representation on August 24, 2009. Also on August 24, 2009, the BSEA received a letter from Parents stating that
… the remaining issue [was] reimbursement to [Student’s] parents for providing transportation for the 2007-2008 school year and the 2008-2009 school year.
Parents’ letter went on to explain their position regarding the above-stated issue.
On September 2, 2009, Attleboro communicated its availability to proceed to hearing and via Order issued that same date, the matter was scheduled for Hearing on November 13, 2009, pending Ruling on the School’s Motion to Dismiss.
On September 15, 2009, Parents wrote to the Hearing Officer to inform her that they had not received Attleboro’s Motion to Dismiss and stating that they would need adequate time to respond when they received it.
Attleboro’s Motion to Dismiss Parents’ Request for Hearing was received on September 17, 2009, and Parents’ Response on September 22, 2009. The Ruling, partially dismissing Parents’ Hearing Request was issued on September 29, 2009. An Addendum received from Attleboro on September 30, 2009 was disregarded as it was received following issuance of the Ruling.
Thereafter, Parents’ Motion to Recuse the Hearing Officer was received on October 2, 2009, followed by Attleboro’s Objection as stated earlier in this Ruling.
In light of the chronology of events described above, Parents’ challenge of bias as a result of having granted a postponement of the Hearing on Friday August 21, 2009, one business day before the hearing scheduled for Monday August 24, 2009, is without merit. This postponement was assented to by Parents’ attorney who further indicated that the Parties were attempting a settlement. Furthermore, Attleboro stated its desire to challenge the jurisdiction of the BSEA over the sole remaining issue, which had been previously discussed with Parents’ attorneys, who were in agreement. The postponement was granted based on the totality of the circumstances at the time it was requested, and not just because of Attleboro’s statement that it had not received Parents’ exhibits by the deadline established in the Order of August 17, 2009.
Parents’ second challenge is also unfounded. There were only two requests for postponements made by Attleboro, and as with the one described above, Parents’ attorneys communicated their agreement to convert the automatic hearing date into a Pre-Hearing conference during the telephone conference call of June 1, 2009. A ruling regarding Attleboro’s request for postponement of the automatic hearing date was not issued until after the parties positions were heard and discussed during the conference call of June 1, 2009.
Also, with respect to the second postponement and Parents’ statement that no hearing date was set when the Hearing date of August 24, 2009, was continued, Parent is correct that a date was not provided on the document that day but as soon as Attleboro’s availability was ascertained, an Order setting the date for hearing was issued (i.e., September 2, 2009). A hearing date has been scheduled to address the remaining issue in this matter, that is, November 13, 2009. More importantly, no harm has come to Student as a result of any alleged delay, since the sole issue between the Parties is reimbursement for transportation for the 2008-2009 school year.
Therefore, there is no inconsistency between what transpired in this matter and the language embodied in Rule III A of the Hearing Rules for Special Education Appeals regarding motions to postpone, as both of Attleboro’s requests were granted for good cause. There were several conference calls between the Parties’ Attorneys and the Hearing Officer, and the two postponement requests were decided on the merits of the totality of the circumstances, including consideration of Parents’ position and interests as communicated by their attorneys.
Thirdly, Parents challenge the Hearing Officer’s competence because of Parents’ belief that errors of law were committed in the Ruling issued on September 22, 2009. The professional qualifications of this Hearing Officer include over twelve years of experience as a special education hearing officer. The Hearing Officer is also a licensed attorney in the Commonwealth of Massachusetts. Parents’ concerns stem from their disagreement with a previous dispositive ruling and not with the qualifications of the Hearing Officer. As with any BSEA matter, a party aggrieved by a decision issued by any hearing officer at the BSEA has an absolute right to appeal the decision to state of federal court. Parents are aware of this recourse and are choosing to proceed with an appeal to Federal Court.
Having addressed the allegations raised by Parents and Attleboro’s response, I turn to the substantive standards inherent in a motion for recusal of a hearing officer. Upon examining my own conscience regarding any actual bias in favor of Attleboro or its legal counsel, I can, beyond a shadow of a doubt, conclude that none exists, and that I am capable of rendering a decision in this matter which is fair and impartial, that is, solely based on the evidence presented at hearing and the applicable law. I am convinced that the results of this matter will not be dependent on my professional or personal opinion of either Party, but rather solely upon the merits of the case and relevant law.
The last thing to be considered regarding a motion for recusal of a hearing officer is the appearance of impartiality, as opposed to actual impartiality, so as to promote the confidence of the public regarding the proceedings. In this sense, the facts presented by Parents in support of the recusal must show “what an objective knowledgeable member of the public would find to be a reasonable basis.” 28 U.S.C. §455. In the case at bar Parents’ argument in support of disqualification of the Hearing Officer rest on their dissatisfaction with the ruling partially dismissing their claim issued on September 29, 2009, and their belief that postponements were granted in favor of Attleboro against Parents’ wishes, and or disregarding their interests. Adverse rulings against a party are not in and of themselves an indication of bias, and without additional evidence to support partiality, adverse rulings alone are not enough to support recusal of a hearing officer.9 As with every other case over which I have presided, the interests and position of both parties have been considered at all times prior to rendering any determination. The record here shows that no preference was ever provided to either party when entertaining postponement requests. The remaining allegations raised by Parents, regarding errors of law, properly belong before the forum selected by them.
In light of the foregoing, the only conclusion is that while a reasonable member of the public looking at the record and the totality of the circumstances may disagree on the substantive merits of a determination rendered by my, nothing on the record points to any factor of circumstance to doubt the impartiality of my determinations. Therefore, I find that there is no reasonable basis to grant Parents’ Motion for Recusal of the Hearing Officer on the basis of bias or appearance of partiality, and as such, this Motion is DENIED .
The remaining issue in this matter will proceed to hearing on November 13, 2009, as previously ordered. The hearing will begin at 10:00 AM, and will be conducted at the BSEA, 75 Pleasant St., Malden, MA.
So Ordered By the Hearing Officer,
_____________________________________
Rosa I. Figueroa
Dated: October 9, 2009
1
This letter was received at the BSEA on August 24, 2009.
2
A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum-
(i) not be-
(I) an employee of the State educational agency or the local educational agency involved in the education or care of the child; or
(II) a person having a personal or professional interest that conflicts with the person’s objectivity in the hearing;
(ii) possess knowledge of, and the ability to understand, the provisions of this title [20 U.S.C. §§ 1400 et seq.], and legal interpretations of this title [20 U.S.C. §§ 1400 et seq.]by Federal and State courts;
(iii) possess knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and
(iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. 20 U.S.C. 1415 (f)(3); see also, 34 CFR 300.511 (c).
3
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 and who are employed to conduct those proceedings. 603 CMR 28.08(3).
4
The due date for a response on the BSEA Notice of Hearing was May 18, 2009.
5
Parents’ second attorney filed an appearance on May 26, 2009.
6
This date and time was selected based on the availability of the Parties, and was scheduled by Paul O’Brien, Calendar Coordinator at the BSEA.
7
The Attorneys requested that this document be disregarded by the Hearing Officer. As such, this Hearing Officer has never reviewed or considered its contents.
8
The second issue listed in Parents’ statement of the issues had been resolved.
9
“ The final level of inquiry is whether the Hearing Officer’s impartiality might reasonably be questioned by the participants or the general public. To be disqualifying the alleged bias, prejudice, or improper remark, conduct or ties must arise from some extrajudicial source. Facts or circumstances gleaned from participation in a current or prior appeal involving the same parties or subject matter, or objections to prior rulings in the current matter that may be unsatisfactory to the party seeking recusal, do not constitute a proper foundation for disqualification. 28 U.S.C.§455; Boston’s Children First , 244 F.3d 164 (1st Cir.2001); Demoulas v. Demoulas Super Markets , 424 Mass 501 (1997); Commonwealth v. Gogan , 389 Mass. 255 (1983).” In Re: Xylon & Brockton Public Schools , BSEA #09-7936 (Byrne, 7/8/2009).