COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Parent and Student v. Springfield Public Schools
BSEA # 2309351
RULING ON SPRINGFIELD PUBLIC SCHOOLS’ MOTION TO RECUSE HEARING OFFICER
This matter comes before the Hearing Officer on the Springfield Public Schools’ (Springfield’s or District’s) Motion to Recuse Hearing Officer (Motion), filed with the BSEA on July 12, 2022, seeking to have the Hearing Officer recuse herself from this matter. As grounds for its Motion, the District asserts that Parent improperly disclosed to the Hearing Officer certain terms of a settlement offer made by the District, and as a result, a reasonable person would find the Hearing Officer unable to continue to preside over the matter impartially.
For the reasons articulated below, the District’s Motion is DENIED.
RELEVANT PROCEDURAL HISTORY[1]
On June 28, 2023, the Parties participated in a Pre-Hearing Conference. At the conclusion of this event, the Parties advised that they intended to continue to discuss potential resolution, possibly with the assistance of a mediator. The Parties also agreed, among other things, to a further Conference Call to be held on July 11, 2023, at which they planned to update the Hearing Officer on the status of their resolution discussions and whether they had agreed to participating in a mediation.
On July 11, 2023[2] Parent emailed the District and the Hearing Officer to request the access information for the scheduled Conference Call and to provide her position on why the Parties had not been able to resolve the matter (“Parents Email”). Attached to this email was a document entitled “Settlement Agreement 6.30.23.DOC” (Settlement Agreement Document). According to the Motion,
“the email text provided (sic) Hearing Officer with details of the settlement proposal [contained within the Settlement Agreement document attached to the email] and Parent’s comments regarding the Springfield’s (sic) motive for the proposal and comments regarding Springfield’s counsel. Please see attached email.[3]”
On July 11, 2023, Parent and both attorneys for the District participated in the scheduled Conference Call. At the start of the Conference Call, I advised that I was in receipt of Parent’s Email, but had not reviewed the attached document and would not be entering that document into the record as it was a settlement document, and thus, not appropriate to include in the record of the matter. Neither party objected to this statement. During the course of the Conference Call Parent provided a verbal summary of what she believed had been offered to her in the Settlement Agreement and explained why she did not agree with the District’s offer. These verbal comments, according to the Motion, “g[a]ve the Hearing Officer further details of what was contained in the agreement and disclosed several material components.”
On July 12, 2023, the District filed the underlying Motion. On July 18, 2023, Parent filed an Opposition to Springfield’s Motion to Recuse (Opposition). Neither party requested a Hearing on the Motion. As neither testimony nor oral argument would advance my understanding of the issues involved, I issue this Ruling without a Hearing, pursuant to Rule VII(D) of the Hearing Rules for Special Education Appeals.
POSITON OF THE PARTIES
The District contends that the disclosure to the Hearing Officer of details concerning the Parties’ settlement communications is “in clear violation of BSEA processes and procedures” resulting in the Hearing Officer “no longer [being] in the position to be able to preside over this due process hearing”. In support of this argument, the District submits that “time and again hearing officers will say that if they are involved in any settlement discussions where terms are exchanged, they could no longer serve as the hearing officer at the due process hearing.” The District relies on a statement on page 8 of the BSEA Reference Manual pertaining to mediations, which advised that a mediator will “not have any communication with the Hearing Officer regarding your case, other than to explain to the Hearing Officer whether mediation resolved the dispute”, contending that this prohibition extends to preclude settlement discussions between the Parties from being disclosed to the Hearing Officer.
Finally, the District submits that the “well for Springfield to obtain an impartial hearing has been poisoned by Parent’s written and verbal disclosures to the Hearing Officer of specific settlement terms”, and argues that the Hearing Officer will not be able to “suppress that conscious and unconscious knowledge in order to maintain impartiality”. According to the District, disclosure to the Hearing Officer of the existence of a settlement offer and “many of the details” results in the Hearing Officer knowing “the extent to which Springfield is willing to resolve the matter, including Springfield’s expenditure of funds” and potentially concluding “consciously or unconsciously that such an offer may be an admission of liability”.
Other than the reference to the BSEA Reference Manual, the only legal authority cited by the District in support of its Motion was to the Ruling on Guardian’s Motion to Recuse in In Re: Amherst-Pelham Regional School District and Wendy, BSEA #2206283, 28 MSER 31 (Reichbach, 2022).
Parent objects to recusal of the Hearing Officer and requests that the District’s Motion be denied. As grounds therefore, Parent contends that there is no agreement between the Parties requiring confidentiality of any discussions between them, including any settlement discussions. Relying on multiple citations to BSEA Rulings pertaining to the confidentiality and binding nature of settlement agreements and mediation agreements, Parent argues that since the Parties have never reached any such agreement, there is nothing requiring her to keep the District’s settlement offers and communications confidential from the Hearing Officer or anyone else. According to Parent “[t]he document in question here is not a settlement agreement or mediation agreement it is a ‘settlement offer’ unagreed to for good reason, unsigned and not binding.”
Parent also challenges the District’s failure to provide any “caselaw in support of their position because such caselaw doesn’t exist which is why no record of a Hearing officer in any state recusing themselves for reviewing the document has occurred.” Further, Parent submits that, at best, the “settlement Offer” is protected under FERPA as an educational record which she has the right to disclose[4]. Finally, Parent asserts her continued objection generally (without disclosing further specific settlement terms), to a settlement offer she found “laughable”.
LEGAL STANDARD
Recusal
The IDEA grants parties the right to an impartial due process hearing to resolve issues related to the “identification, evaluation, or educational placement of [a student], or the provision of a free appropriate public education to such child.[5]” In order to ensure such impartiality, Hearing Officers must, at a minimum 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”, in addition to possessing knowledge of, and the ability to understand, act and issue decisions in accordance with special education laws, administrative hearing procedural requirements and standard legal practice[6]. If a party feels that an assigned Hearing Officer does not meet these requirements, it can request recusal of that Hearing Officer.
When recusal is sought, a Hearing Officer must apply a multi-part analysis to the request, via a self-examination, as such requests are treated “seriously in order to protect the trust and confidence of the participants in this quasi-judicial proceeding.”[7]. “… [I]t is the duty of the hearing officer when evaluating such a request to fairly examine the facts alleged and h[er] own conscience, as well as to attempt to view h[er] actions from the perspective of the litigants and the public[8].” As a matter of policy, it is of utmost importance to the due process proceedings that all participants have trust and confidence in the impartiality and professional ability of the hearing officer conducting them[9]. At the same time, a countervailing policy concern exists such “that a [hearing officer] once having drawn a case should not recuse h[er]self on an unsupported, irrational, or highly tenuous speculation; were [s]he to do so, the price of maintaining the purity of appearance would be the power of litigants or third parties to exercise a negative veto over the assignment of [hearing officers].[10]”
Thus, when recusal is sought, a Hearing Officer must undertake a careful, and thorough examination of her own professional qualifications to hear the type of appeal presented; consider and be alert to any objective bars that arise in the particular matter before her, as well as any subjective biases or prejudgments she may have about the parties or subject matter; and anticipate how her conduct of the matter might “appear” to the parties and the public[11]. While legitimate, and in some cases compelling reasons support denial of recusal requests, such as preventing “hearing officer shopping”, promoting conservation of scarce administrative resources and ensuring efficiency of the administrative management of a proceeding, such requests must be treated carefully and examined closely to confirm if there are any factors that exist in the particular case supporting recusal[12]. However, in the absence of any such factors, the Hearing Officer should not recuse herself.
Evidence of Settlement Negotiations and Offers of Compromise
While the Federal Rules of Evidence do not govern BSEA proceedings, Rule 408 of said Rules is instructive, providing useful guidance regarding the admissibility of evidence of settlement offers. Rule 408 prohibits evidence of settlement offers or negotiation discussions from being admitted, by any party (with some exceptions not relevant to this matter) in legal proceedings[13]. The Advisory Committee Notes to the 1972 proposed rule explained that there are two grounds on which this rule of exclusion is based, “(1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. … [and] (2) … promotion of the public policy favoring the compromise and settlement of disputes.[14]”
Although Rule IX(C) of the Hearing Rules for Special Education Appeals (Hearing Rules), does not require Hearing Officers to be bound by the rules of evidence applicable to courts (but are bound by rules of privilege recognized by law)[15], the Massachusetts courts have applied the evidentiary rule against admissibility of settlement negotiations in civil cases to agency proceedings[16]. While relevancy and reliability is the standard of admissibility for all evidence in BSEA proceedings[17], relevant evidence will be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.[18]” On this basis, as well as in recognition of the public policy favoring settlements of disputes[19] behind Fed.R.Evid. 408, I conclude that settlement negotiation evidence is not admissible in BSEA proceedings, absent other extenuating circumstance wherein such evidence would otherwise be necessary, and where it is determined that admission of such evidence is not unduly prejudicial to either party[20].
Guided by this legal authority, I turn to Springfield’s Motion.
APPLICATION OF LEGAL STANDARDS
After carefully applying the recusal analysis to the District’s claims, and considering the arguments in favor of denying recusal advanced by Parent, I find that recusal is not warranted here. First, while not in dispute, I find that my professional background, knowledge and experience have made me qualified to proceed as the Hearing Officer overseeing this matter. I have been a Hearing Officer with the BSEA for the past two years. Prior to that I had over nineteen years of experience as a special education practicing attorney, admitted in good standing to the Massachusetts Bar (and admitted in good standing to the U.S. District Court for the District of Massachusetts for over 9 years), representing, at various times over those years, parents and students as well as a public school district.
With regard to any objective bias I may have in this matter, which is also not in dispute, I confirm that I do not have an existing or previous personal relationship with any of the parties, attorneys or the witnesses identified in this matter to date. I also do not have any prior professional relationship with the Parent, Student, any witnesses identified to date, or one of the two attorneys for the District. Although I have interacted professionally with the other attorney for the District, in the past, it has always been strictly in my capacity as a Hearing Officer or a practicing special education attorney.
I now turn to the disputed claim of potential subjective bias or prejudice that I may have or may, to a reasonable person in the public, “appear” to have, given that Parent has disclosed to me the alleged terms of the District’s settlement offer. After a careful examination of this claim and my own conscience I disagree that such subjective bias or prejudice exists or even could appear to exist. I agree that Parent had shared with me her interpretation of a portion of a settlement offer she received from the District and had also attempted to submit the Settlement Agreement Document, although I did not review this document or allow into the record of this matter. However, other than the District’s own acknowledgement that Parent’s statements did, in fact, disclose valid settlement terms, I had no other independent reason to know if what Parent shared with me was an actual offer of compromise, or the entirety of such settlement offer.
Further, I do not know, nor do I seek to know whether further settlement offers have been or will be made by the District in this proceeding. My knowledge is limited to Parent’s Email and the Parties’ Conference Call statements, both of which I received on July 11, 2023. Neither of these communications has any prejudicial impact on my ability to make a fair and impartial decision of the issues in this matter, after a full hearing on the merits of those issues, nor do I find that a reasonable member of the public could conclude otherwise.
As a Hearing Officer, I have a duty and a responsibility to issue a “fair, independent, and impartial decision based on the issues and evidence presented at the hearing and in accordance with the law”[21] (emphasis added). While Hearing Officers may and often do communicate with parties about a pending matter outside the hearing process, the written decision can only be based on information that is admitted into evidence during the hearing itself. As the hearing on the merits has yet to be convened in this matter, none of Parent’s challenged disclosures could ever be considered by me in rendering my final decision on the issues I hear, even if I were, as the District claims, unable to “superhumanly suppress that conscious and unconscious knowledge” of this information.
Moreover, it is not uncommon for Hearing Officers, during the course of a hearing on the merits to learn of information that is ultimately not a part of, or subsequently excluded from the hearing record, such as a proposed exhibit ultimately not allowed to be entered into evidence upon on the objection of the other party, witness testimony that is given but subsequently struck from the record at the request of a party, or discussions made “off the record” during the proceedings. Such information so learned must be disregarded in issuing the final decision, however the impartiality of hearing officers is not challenged in these situations, as the participants and general public recognize the BSEA Hearing Officer’s duty to ensure that their decisions are based only upon the evidence and sworn testimony admitted into the hearing record[22]. The same reasoning applies to Parent’s challenged disclosures.
Finally, I find that the District’s arguments in their Motion are more appropriately proffered in support of evidentiary exclusion of the challenged settlement communications, than necessitating my recusal. Further, given Parent’s statement in her Opposition that “I am going to do with [the settlement agreement] document as I see appropriate, it might pop up into my evidence binder”, I take this opportunity to reinforce the evidentiary prohibitions pertaining to settlement negotiations, and the public policy principles associated with maintaining their confidentiality. As discussed above, settlement offers, and the associated settlement communications are inadmissible as evidence in hearings. In addition to protecting and promoting the IDEA’s encouragement of earlier and amicable resolution of special education disputes, settlement discussions and offers are generally, irrelevant, unreliable in proving the issues to be addressed at hearing, and unduly prejudicial[23]. Thus, while recusal is not warranted here, this determination does not reduce the responsibility and necessary obligation of the Parties to ensure that all of their settlement and resolution discussions, terms and negotiations remain between them, are not (further) shared with the hearing officer, or otherwise sought to be admitted into the hearing on the merits in this matter[24].
The challenged disclosures and the Settlement Agreement Document are specifically found to be irrelevant, unreliable and prejudicial to the District, and no extenuating circumstances exist wherein this admission of this information would outweigh the prejudicial impact, either[25]. Further, Parent and Student shall not submit any settlement offers or negotiation communications, including but not limited to the Settlement Agreement Document, as proposed exhibits for the hearing on the merits in this matter. That Document has already been excluded from the record of these proceedings. Both the decision to so exclude it and this Order precluding it from being presented again for admission as an exhibit are made with prejudice.
ORDER
I decline to recuse myself from this matter and Springfield’s Motion is DENIED. Further, Parent is PROHIBITED with prejudice from submitting any settlement offers or negotiation communications, including but not limited to the Settlement Agreement Document, as proposed exhibits for the hearing on the merits in this matter.
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: August 29, 2023
[1] The procedural history of this matter has been set forth in prior Rulings and is not repeated here, unless relevant to the underlying Motion. Specifically, the Parties are directed to refer to the Ruling on Challenge to Sufficiency of Hearing Request issued on April 18, 2023, the Ruling on Challenge to Sufficiency of Amended Hearing Request issued on May 16, 2023, and the Ruling on Defendants’ Motions to Dismiss issued on June 12, 2023.
[2] This email is dated July 10, 2023, but as it was filed after the close of the business day on July 10, 2023, it is deemed filed on July 11, 2023, the next business day.
[3] Although the District objects to this email having been sent to the Hearing Officer in the first place, the email, but not the attached Settlement Agreement document was attached by the District, this time, as an exhibit to the Motion.
[4] While irrelevant to my analysis in the instant Motion, I note that Parent fails to explain the basis for her right to disclose any educational records of Student in this matter, as he is over the age of 18 and there is nothing in the record in this matter indicating that on July 11, 2023 Parent had legal guardianship of Student or other educational decision-making authority for Student.
[5] 20 USC 1415 (b)(6) and (f)(1)(A).
[6] 20 USC 1415 (f)(3)(A); see 34 CFR 300.511(c)(1); 603 CMR 28.08(3)(c) (“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”).
[7] In Re: Student v. Brookline Public Schools – BSEA # 23-03670, 29 MSER 101 (Figueroa, 2023); see In Re: Amherst-Pelham Regional School District and Wendy – BSEA #22-06283, 28 MSER 31 (Reichbach, 2022).
[8] In re: Danvers Public Schools – BSEA # 17-01031, 23 MSER 5 (Oliver, 2017).
[9] In re: Danvers Public Schools – BSEA # 17-01031, 23 MSER 5 (Oliver, 2017); In Re: Ludlow Public Schools, Ruling on Motion for Recusal – BSEA #1509319, 21 MSER 135 (Scannell, 2015); see In re: Student v. Northborough-Southborough Regional School District – BSEA # 22-01162, 27 MSER 411 (Kantor Nir, 2021).
[10] In Re United States, 666 F.2d 690, 694 (1st Cir. 1981); see In re: Student v. Northborough-Southborough Regional School District – BSEA # 22-01162, 27 MSER 411 (Kantor Nir, 2021).
[11] In Re: Ludlow Public Schools, Ruling on Motion for Recusal, BSEA #15-09319, 21 MSER 135 (Scannell, 2015) quoting In Re: Brockton Public Schools and Xylon – BSEA # 11-0374, 16 MSER 367 (Byrne, 2010); In Re: Duxbury Public Schools and Ishmael – BSEA # 09-1986, 14 MSER 363 (Byrne, 2008); In Re: Marblehead Public Schools – BSEA # 02-2828, 8 MSER 84 (Crane, 2002); see In Re: Student v. Brookline Public Schools – BSEA # 23-03670 29 MSER 101 (Figueroa, 2023); In Re: Amherst-Pelham Regional School District and Wendy – BSEA #22-06283, 28 MSER 31 (Reichbach, 2022).
[12] In re: Danvers Public Schools – BSEA # 17-01031, 23 MSER 5 (Oliver, 2017).
[13] Fed. R. Evid. 408(a) provides: “Prohibited Uses. Evidence of the following is not admissible–on behalf of any party–either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering–or accepting, promising to accept, or offering to accept–a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim–except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. See Massachusetts Proposed Rule 408 (“‘Compromise and Offers to Compromise’: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”) adopted in principle by Morea v. Cosco, Inc., 422 Mass. 601, 603, 664 N.E.2d 822, 824 (1996) (“For the future, unless admission of the evidence is relevant for some other purpose, no evidence of a settlement or the amount of the settlement shall be admissible”).
[14] Fed.R.Evid. 408 citing Charles T. McCormick, Handbook of the Law of Evidence §§ 76, 251, (1st ed. 1954); see 19 Mass. Prac., Evidence § 408.1 (3d ed.) (“Compromise and offers of compromise in general”. “In Massachusetts the rule extends beyond proof of the bare fact of the offer and its precise terms, and also excludes proof of anything that occurred during the negotiations and constituted an inseparable part of the effort to compromise—including declarations and admissions made for that purpose and with that end in view. This rule of exclusion obtains, whether the offer of compromise was made orally or in writing, or whether it was made directly to a party or through an agent.… The reason for this is clear. The rule which excludes offers of compromise when offered in evidence of the validity or amount of a claim, rests upon a sound principle of public policy favoring the settlement of disputed claims out of court.”) citing Chase v. Chase, 271 Mass. 485 (1930) (additional citations omitted).
[15] See M.G.L. c. 30A § 11(2) (“Unless otherwise provided by any law, agencies need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs…”).
[16] Slive & Hanna, Inc. v. Massachusetts Comm’n Against Discrimination, 100 Mass. App. Ct. 432, review denied, 488 Mass. 1109 (2021) (“We assume, without deciding, that the evidentiary rule against the admission of settlement negotiations in civil cases applies to agency proceedings in the MCAD. ‘As is well established, evidence of a compromise offer is inadmissible to prove or disprove the validity or amount of a disputed claim.’”) citing Filbey v. Carr, 98 Mass. App. Ct. 455, 457 (2020). Accord Mass. G. Evid. § 408(a) (2021).
[17] 603 CMR 28.08(5)(c) “[t]he Special Education Appeals hearing officer shall have the power and the duty to … receive and consider all relevant and reliable evidence”.
[18] Fed.R.Evid. 403 adopted in principle in Massachusetts in Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422-23 (1988) (“Instead, discretion is vested in the judge to determine whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice to the opponent of its admissibility”).
[19] Similarly, the IDEA favors early resolution of due process proceedings, prior to a hearing, such as, for example the 2004 IDEA’s addition of the resolution process. See Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities 71 Fed. Reg. 156, 46701 (“Parties should keep in mind that the resolution process offers a valuable chance to resolve disputes before expending what can be considerable time and money in due process hearings”).
[20] Hearing Rule IX(C) (“Evidence shall be admitted only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs…. At the hearing, the Hearing Officer may permit or request the introduction of additional documentary evidence where no prejudice would result to either party”).
[21] 603 CMR 28.08(5)(c); Hearing Rule IX(B).
[22] Id.
[23] Hearing Rule IX(C); see M.G.L. c. 30A § 11(2); Slive & Hanna, Inc. v. MCAD, 100 Mass. App. Ct. at 442 (2021); Fed.R.Evid. 408; 19 Mass. Prac., Evidence § 408.1 (3d ed.).
[24] The BSEA encourages parties to act cooperatively and requires that they behave appropriately through the due process proceedings. See Hearing Rule V(A) (“The parties are encouraged to exchange information cooperatively and by agreement prior to the hearing”); Hearing Rule IX(B)(15) (“The Hearing Officer may … censure, reprimand and otherwise ensure that all participants conduct themselves in an appropriate manner). Despite the extensive litigation history between and continuing with the Parties (discussed extensively in my Ruling on Motions to Dismiss), I appreciate their professional and respectful interactions to date in this matter and expect that they will continue to act accordingly and in adherence with all of the Rulings and Orders that have been and will be issued.
[25] Further, while Parent’s challenged disclosures are not admissible for the reasons stated, I also note my disagreement with the District’s contention that disclosure of the settlement terms would constitute an admission of liability by the District. See Massachusetts Proposed Rule 408 (“‘Compromise and Offers to Compromise’: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim.”) adopted in principle by Morea v