Student v. Melrose Public Schools – BSEA # 06-5261



<br /> Student v. Melrose Public Schools – BSEA # 06-5261<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Student v. Melrose Public Schools

BSEA #06-5261

RULING ON PARENTS’ MOTION REGARDING PARTICIPANTS AT A RESOLUTION SESSION

This ruling is issued pursuant to Parents’ Motion filed on May 17, 2006. Said Motion seeks an Order barring Mary Ellen Kelleher, an administrator of the school district, who is an attorney from participating in the resolution session in the above-captioned matter. Melrose Public Schools, (hereinafter, “Melrose”) filed an opposition to Parents’ Motion on May 23, 2006.

PROCEDURAL HISTORY/FACTS

Parents filed a request for hearing on May 2, 2006. A dispute arose between the parties regarding the resolution session participants and the parties sought the BSEA’s intervention.

PARENTS’ POSITION

Parents argue that because they notified Melrose that they did not intend to bring their attorney to the resolution session that Melrose is barred from bringing any person who is an attorney to the resolution session. They argue that because Mary Ellen Kelleher is an attorney who is employed by the district as a special education administrator she is barred from attending the resolution session unless their attorney attends. They claim that although Ms. Kelleher’s title is “administrator” she has attended prior Team meetings as an attorney. Additionally, they claim that Ms. Kelleher lacks “sufficient knowledge of the facts identified in the complaint.” They state that by insisting that Ms. Keller attend the resolution session, Melrose is violating the intent of Congress of providing parents and the district one last attempt at resolving their issues before involving attorneys.

MELROSE’S POSITION

Melrose argues that Ms. Kelleher has not been, and is not currently employed as an attorney for the Melrose Public Schools, but as the Special Education Administrator. In order to be licensed by the Massachusetts Department of Education as a Special Education Administrator, Ms. Kelleher is required to have at least three years of employment in the field of law, public policy, higher education or another related field and must possess “appropriate knowledge of special education laws, regulations, and issues…”603 C.M.R. 7.09(4)(a). Ms. Kelleher’s attendance at the resolution session is appropriate as she serves as a Special Education Administrator for Melrose and thereby has decision-making authority to allocate resources for purposes of resolving issues in dispute pertaining to Student’s educational services. Additionally, she does not serve as a “attorney of the District.” The plain language of IDEA 2004 states that the resolution setting may not include an “attorney of the local education agency” unless the parent is accompanied by an attorney. 20 U.S.C. §1415(f)(B)(i)(II). Since Ms. Kelleher does not serve as an attorney of or for Melrose Public Schools, but rather as an Administrator of Special Education, she is not prohibited from attending the resolution session on behalf of the school district. Additionally, Ms. Kelleher supervises the provision of special education services for students in the Melrose Public Schools, including those of Student. She has been a member of his Team since June 2005. Therefore, Parents’ assertion that she lacks “sufficient knowledge of the facts identified in the complaint” is without merit. The Parents’ rights and interests are not jeopardized by the participation in a resolution setting with a district administrator who has graduated from law school.

ISSUE :

Whether a special education administrator who is an attorney is barred from participating in the resolution session.

FINDINGS

After careful consideration of the Parents’ Motion and arguments and the response of Melrose, I find no basis for granting Parents’ request that Ms. Kelleher be barred from attending the resolution session. Parents urge the hearing officer to adopt a broad interpretation of IDEA 2004’s clause pertaining to the participation of attorneys at resolution sessions. 20 U.S.C. § 1415(f)(B)(i)(III) instructs school districts to convene a meeting with parents and relevant members of the IEP Team “who have specific knowledge of the facts identified in the complaint … (III) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney.” Parents argue that because Ms. Kelleher is an employee of the school district who happens to also be an attorney, she is barred from participating in the resolution session despite the fact that she holds the position of Special Education Administrator for the Melrose Public Schools. This interpretation ignores the qualifying clause “of the local education agency.” Clearly, by their choice of words, Congress intended to make a distinction between “an attorney” and “an attorney of the local educational agency.”

Ms. Kelleher’s affidavit states that she has worked in the Melrose Public Schools since 2001 in the roles of reading specialist, moderate special needs teacher, administrative specialist and Special Education Administrator. (S-Exhibit 3, ¶ 2) She has not practiced law full-time since November 1999 and has never practiced in the area of special education law. (S-Exhibit 3, ¶¶ 3,4) She has never been employed as an attorney for the Melrose Public Schools and does not currently serve in that capacity. (S-Exhibit 3, ¶ 13) Although Mother asserts that Ms. Kelleher attended the June 2005 Team meeting as an attorney (Affidavit of Mother, ¶ 17), her assertion is speculative and not based upon personal knowledge and I give it little weight.

Mother’s affidavit requests that the hearing officer order that the resolution session be held without the presence of any attorneys1 . This is not what the law requires. The law requires that “an attorney of the local educational agency” not attend the meeting unless the parents bring an attorney to the meeting. Ms. Kelleher’s affidavit demonstrates that she is not, nor has she ever been an attorney for the Melrose Public Schools. Additionally, Ms. Kelleher is not the attorney of record for this proceeding and as such has not entered an appearance in this matter. In fact, Matthew MacAvoy has entered an appearance as counsel of record in this matter. Thus, Attorney MacAvoy is the “attorney of the local educational agency” with respect to this case.

The Parents’ argument that Ms. Kelleher lacks “sufficient knowledge of the facts identified in the complaint” is equally unpersuasive. Although Mother’s assertions that Ms. Kelleher has never taught her son, evaluated him, or even met him (Mother’s Affidavit, ¶ 17) may all be true, Ms. Kelleher has been a member of Student’s Team and has “direct knowledge of the Student, his needs, services, placement and the issues in dispute.” She also has decision-making authority to resolve issues in dispute and enter into a resolution agreement on behalf of the District. (Exhibit S-3, ¶ 14)

ORDER

I hereby DENY Parents’ Motion as the law does not prohibit Ms. Kelleher’s participation.

Additionally, Parents’ request for reconsideration of their Motion to Strike, which was embedded in the motion before me, is DENIED . There is no legal basis for their Motion to Strike.

By the Hearing Officer,

______________________________________

Catherine M. Putney-Yaceshyn

Dated: May 26, 2006


1

Under Parents’ interpretation of the law any parent who happened to be an attorney would either be barred from attending the resolution session or his or her attendance would trigger the school district’s right to have the attorney of the school district present.


Related Articles

Leave A Comment?