COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Nelson1 and the Taunton Public Schools
BSEA #10-8142
Rulings
This matter comes before the Hearing Officer on the Motions of the Parent:
1) To Rescind her assent to submit this matter for Decision on Documents; 2) For a Change in Venue; and 3) For Recusal, submitted on January 10, 2011. Taunton Public Schools (“School”) submitted Oppositions to all the Motions on January 25, 2011. The School also filed a Motion to Dismiss with Prejudice on January 25, 2011. The Parent submitted a Response to the School’s Motion to Dismiss on February 18, 2011.
All outstanding motions are discussed below. Before turning to the Parties’ legal arguments a brief review of the procedural history is warranted.
Procedural History
The Parent filed a hearing request on June 10, 2010, alleging that the School had failed to respond to her December 4, 2009 request for a transitional evaluation for her son, causing him significant educational harm. The Parent has at all times been represented by an advocate. The School is represented by a lawyer. A Pre-hearing Conference was held on August 11, 2010. The School’s Motion to Dismiss the Parent’s Claims, filed on June 30, 2010, was Denied. The Parent’s claims were clarified, discovery parameters discussed and hearing dates selected. A confirming Pre-hearing Order was issued on August 13, 2010 setting out the issues for hearing and establishing an October 14, 2010 hearing date.
The Parties engaged in Discovery throughout September 2010. The Hearing date was converted to a pre-hearing, over the objection of the School, in order to handle extensive discovery related disputes, including parental claims that the School was withholding student records. The Pre-hearing was also necessary to assist the Parent in preparation of documentary evidence in advance of the hearing. At the pre-hearing the Hearing Officer reviewed the parties’ proposed exhibits, ruled on substantive and procedural objections to their inclusion in the hearing record, and advised the Parent on proper presentation of hearing exhibits. The documents were returned to the Parent for preparation consistent with the BSEA Rules and the Hearing Officer’s rulings. The Parties were ordered to exchange and submit all proposed hearing exhibits by November 17, 2010 in order to permit sufficient time for consideration of Summary Judgment Motion(s) prior to the hearing date. The Pre-hearing Conference was tape recorded.
On October 19, 2010 the BSEA issued confirming written Rulings on all then outstanding Motions and on the School’s Objections to Parent’s proposed hearing exhibits. The Order established a hearing date of January 6, 2011. On October 29, 2010 the BSEA issued an Order requiring the School to furnish a complete copy of the Student’s educational record to the Parent, without charge, no later than November 10, 2010.
The School submitted its Hearing Exhibits by November 17, 2010. The Parent did not. On November 30, 2010, Taunton’s attorney certified that the Parent had viewed in person and had been provided with a true and free copy of the Student’s complete school record by the November 10, 2010 deadline established in the October 29, 2010 BSEA Order. According to the School, the Parent spent more than six hours at Taunton High School, where the Student’s records are located, reviewing the entire student educational file held by the School. The School copied all documents requested by the Parent, a total of 1,025 pages.
On December 7, 2010 the School’s Motion to Close the Evidence was Granted. No Opposition had been filed by the Parent. The Order confirmed that the hearing would take place on January 6, 2011 in Malden.
On December 22, 2010 the Parent submitted an Objection to the December 7, 2010 Order alleging that the Parent had never received a complete copy of the Student’s Records and stating “it is necessary to obtain the ‘file drawer’ that is full of the Student’s Records”. The School disputed the Parent’s assertions.
On December 28, 2010, the Hearing officer unilaterally ordered a change in the location of the Hearing, requiring the School to secure a room that “has immediate and ongoing access to the Student’s permanent school records” in order to address the Parent’s ongoing concerns that she had not been afforded a copy of all of the Student’s educational records. The Parties were advised that the Parent would have another opportunity to review the student records held by the school before the hearing started and, should any documents be discovered in the file that had not previously been supplied to the Parent, the hearing would be postponed for two weeks. The Parties were also advised that absent discovery of previously unsupplied documents the hearing would proceed as scheduled. On December 30, 2010, the School notified the Hearing Officer and the Parent that it had reserved a room at Taunton High School. On December 30, 2010, the Parent submitted her proposed hearing exhibits and witness list. The Parent did not submit a Motion for Leave to Submit Exhibits Late, a Motion to Postpone, a Request to Change the location of the Hearing, or a Request for a conference call in advance of the Hearing.
On January 6, 2011, the Parent and her advocate, School representatives, the School’s witnesses, and the Hearing Officer convened at Taunton High School. No witnesses on behalf of the Parent were in attendance.
The Hearing Officer proposed beginning with an examination of the Student records. The Parent declined to review the Student’s school records. She requested that the Hearing not go forward due to safety concerns. The Parent also requested an immediate location change to her office in an adjoining community. The Hearing Officer denied both requests. The School’s Motion for Immediate Dismissal with Prejudice was also Denied.
The Hearing Officer outlined three options: a) proceed with the hearing; b) the Parent could withdraw or leave the hearing, either of which would result in a Dismissal with Prejudice; c) the Parties could agree to submit the issues on documents alone for BSEA Decision. The Parent objected to all options. The Hearing Officer examined all proffered Parent exhibits to ensure conformity with prior rulings and admissibility, despite the late submission. After meeting for four hours the Parent (on the advice of her advocate) and the School agreed in writing to the submission on documents alone pursuant to BSEA Rule XII (Administrative Record). The hearing date was released and the parties left.
On January 10, 2011 the Parent submitted Motions to Rescind her Agreement to a Decision on Documents, to Change the Location of the Hearing, and for Recusal of this Hearing Officer. The School renewed its Motion to Dismiss.
I. Motion to Rescind
The BSEA offers parties to special education appeals a variety of avenues, formal and informal, to secure resolution of their dispute in a timely, efficient, responsive and cost-efficient manner. Most of these dispute resolution mechanisms are voluntary. The parties may choose which method most closely matches their evidence, skills, and time. A Decision without a Hearing is one of the voluntary dispute resolutions mechanisms. BSEA Rule XII; 801 CMR 1.01(10)(c). It is designed to offer parties whose primary dispute involves a question of law rather than fact, or where oral testimony would add little to an explicit documentary record, a less onerous, more efficient path to a final, enforceable decision than a full due process hearing. Having previewed the documents to be offered into evidence in this matter and having supervised the parties’ pre-hearing conduct, the Hearing Officer made the determination that a Decision on the Documents would afford the parties a fair and complete consideration of their competing claims. That method was therefore suggested to, and accepted by, both parties on the day they would otherwise have proceeded to Hearing. One might infer under these circumstances that the Parent’s subsequent request to rescind her agreement is an attempt to achieve the objective she originally sought, i.e., a postponement of the January 6, 2011 hearing, rather than a genuine change of heart. Noting that the Parent is without competent legal representation, I decline to make such a bold inference.
Instead, it is sufficient to note that the BSEA Rule XII procedure is always voluntary, that no significant period of time elapsed between the time the Parent initially agreed to submit her claims for Decision on Documents alone and the time she sought to rescind her agreement, and that the procedural consequences to the School and to the Parent of rescinding the agreement are substantially equivalent. Therefore, the Parent’s Motion to Rescind her January 6, 2011 agreement to submit this matter for Decision on Documents pursuant to BSEA Rule XII is GRANTED and this matter shall proceed to hearing.
II. Motion to Change Venue
BSEA Hearings are usually held at the BSEA office in Malden, MA. Upon request, and for the convenience of the parties, witnesses and/or hearing officer, a hearing may be held at another neutral location, typically a court reporter’s conference room in Worcester or Springfield. In this matter, in order to address the Parent’s ongoing concerns about access to her son’s student records, the January 6, 2011 hearing was relocated to Taunton High School, the repository of those records. (See procedural history, supra .) The Parent now seeks to proceed with the due process hearing at the Division of Administrative Law Appeals. 801 CMR 1.01(7)(E). In support of her request, the Parent argues that her physical safety cannot be assured at any location within the Taunton Public Schools and that she cannot obtain an impartial hearing at the BSEA Offices in Malden. The School opposes a change of venue, asserting that the Parent’s Motion is an impermissible request for reconsideration of a prior ruling. 801 CMR 1.01(7)(I). After careful consideration of the Parent’s request it is my determination that the hearing should proceed in the normal course at the BSEA offices in Malden. The reasons for this ruling are: first, while the BSEA is a component of the Division of the Administrative Law Appeals (“DALA”), it is a separate entity with its own hearing rules, administrative protections and its own locations that are specially designed to address the issues commonly associated with these highly emotionally charged hearings. M.G.L.c. 71B § 2A. The BSEA has no authority to compel DALA to make any of its physical facilities available to the BSEA. Second, the Malden location has the building and peripheral security necessary to address the Parent’s concerns for her safety. Third, the hearing rooms at the BSEA are separate from the administrative office. There is no visual or auditory access between them and therefore no danger of the “creeping bias” feared by the Parent. Fourth, the Parent has declined to further review the Student’s records in the Taunton Public Schools and therefore ongoing access to those records is no longer a necessary element of hearing location. Fifth, the Malden location is reasonably convenient for the parties, proposed witnesses and Hearing Officer. Therefore, the Parent’s Motion to Change the Venue of the Hearing to DALA is DENIED .
III. Motion for Recusal
The Parent’s Motion for Recusal has two components. First, she alleges that she is unable to obtain a fair hearing from any BSEA Hearing Officer and seeks transfer of this matter to a DALA Magistrate. Second, the Parent contends that the current BSEA Hearing Officer is “not impartial” and should recuse herself. The School opposes Recusal and posits that it would be substantially prejudiced by assignment of a new hearing officer unfamiliar with the parties and the history of this matter at this stage of the proceedings. After careful consideration of the arguments of the parties, I find that recusal is not warranted in this case.
First, DALA Magistrates may not entertain special education disputes and therefore transfer to a DALA Magistrate is not possible. The BSEA has exclusive jurisdiction over special education disputes. M.G.L.c. 71B § 2A; 20 U.S.C. § 1415(1)(A); 20 U.S.C. § 1415 (f)(3); 34 CFR 300.511.
Second, the Parent has not demonstrated the existence of any of several factors that might prompt recusal of this hearing officer. Motions for Recusal must be considered seriously by the challenged decision-maker. It is of grave importance to the administration of justice that all participants in a judicial or quasi-judicial proceeding have trust and confidence in the impartiality and the expertise of the person conducting the proceeding. It is also important that the administrative functions of a due process entity be efficient, fair and responsive to all interested participants, and not subject to disruption or delay by a very small minority of individuals.
Weighing those two objectives, and seeking to reconcile them, a challenged hearing officer must examine her own professional qualifications to hear the type of appeal presented, must be alert to any objective bars that arise in the particular matter before her; must consider any subjective biases or prejudgments she may have about the parties or the subject matter; and must anticipate how her conduct of the matter might “appear” to the parties and the public. Brockton Public Schools , 16 MSER 367 (2010); Duxbury Public Schools , 14 MSER 363 (2008); Marblehead Public Schools , 8 MSER 84 (2002).
In the matter at hand, I consider the elements which might support recusal:
1. Professional Qualifications
The parent posed no challenge on this basis and therefore disqualification is not warranted.
2. Objective Bars
Objective factors which usually warrant recusal include any personal or professional connection the hearing officer might have with a hearing participant, or any financial interest the hearing officer may have in the outcome of the matter, that might reasonably compromise her ability to render a fair decision. These factors include but are not limited to: potential relationship-based bias due to a familial tie with a participant; residence within the school district or a prior association with counsel. In this matter the Parent has not alleged, nor is there any reasonable support for finding, the existence of any objective factor that would require recusal. I have no current or historical familial, professional or financial connection to any party, potential witness, public entity or counsel in this matter. Therefore I find that there is no objective bar to continuing as Hearing Officer in this matter.
3. Subjective Factors
The Hearing Officer must also examine her own emotions and conscience to determine whether she is truly capable of conducting an unbiased, impartial due process proceeding. I have made this examination. Indeed I make this examination with each ruling or event in all matters before me. I have concluded that I do not have any impermissible bias or prejudgment, that I am capable of fairly presiding over this matter without prejudice to either party and of rendering a decision based solely on the evidence presented and the applicable law.
4. Appearance
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, 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 USC § 455; Boston’s Children First , 244 F.3d 164 (1 st Cir.2001); Demoulas v. Demoulas Super Markets , 424 Mass 501 (1997); Commonwealth v. Gogan , 389 Mass. 255 (1983).
Here, the Parent’s argument in support of disqualification in this hearing rests both on her dissatisfaction with her experience in a prior hearing before a different hearing officer, and her dissatisfaction with the procedural course of the instant hearing, including her objections to rulings made in her favor. Unsatisfactory experiences and misperceptions, even a series of them, do not in themselves indicate partiality or bias on the part of the hearing officer and do not, without more, provide sufficient support for recusal. While reasonable people may disagree on the substantive merits of any decision or may experience discomfort during any part of the hearing process, I cannot find on this record that a reasonable member of the public could point to any factor or circumstance causing doubt as to my impartiality. Therefore I find that recusal is not warranted on the basis of appearance of partiality.
5. Reassignment
While there is no reasonable basis for granting the Parent’s Motion for Recusal, there remains, nonetheless, the duty to assist inadequately represented litigants to the extent possible to present their claims. The BSEA and the hearing officer may offer technical assistance to a pro se or inadequately represented party so long as the hearing officer does not dispense legal advice and the technical or administrative assistance that is given does not significantly prejudice the other party/parties. Here, the real potential for procedural and substantive harm to the School’s defense, along with the substantial risk of disruption to the administrative processes at the BSEA, that a late stage reassignment is likely to produce, significantly outweigh the discomfort that the Parent may experience in continuing with the current hearing officer. Therefore I find that referral of this matter to the Director of the BSEA for consideration of the Parent’s Request for Assignment of a Different Hearing Officer is neither appropriate nor warranted.
IV. School’s Motion to Dismiss With Prejudice
On January 25, 2011 Taunton submitted a Motion to Dismiss the Parent’s appeal with prejudice. In doing so, Taunton renewed and supplemented the Motion to Dismiss it had presented on the January 6, 2011 hearing date and which had been denied. The Parent submitted a Response on February 18, 2011.
A special education claim filed at the BSEA may be dismissed when the moving party falls to prosecute or proceed with a case or when a party fails to comply with BSEA Rules or an Order of a Hearing Officer. BSEA Rule XVII; 801 CMR 1.01(7)(g). Dismissal with prejudice is justified when there is a clear record of intentional delay and/or unproductive conduct by one party that results in substantial prejudice to the other party. Lexington Public Schools , 16 MSER 151 (2010); Harwich Public Schools , 14 MSER 74 (2008); Medford Public Schools , 10 MSER 18 (2004).
In this matter, the School’s Motion to Dismiss accurately summarizes the procedural history documented in the administrative record. Since filing her hearing request in June 2010, the Parent has failed to proceed promptly with prosecution of the limited issues raised in the hearing request. The Parent has ignored deadlines for submission of motions and for completion of discovery. The Parent has failed to adhere to BSEA Rules concerning presentation of motions and preparation of evidence for hearing. The Parent has not complied with direct procedural and substantive Orders from the Hearing Officer. The Parent has repeatedly submitted false, misleading and potentially defamatory documents in contravention of Hearing Officer warnings and direction. All of these actions have had a substantial detrimental affect on the School, the School’s attorney and the BSEA. Typically these actions would also justify dismissal, as now and previously urged by the School. Here, however, I cannot construe the procedural and other improprieties against the Parent, as the offending actions were those of her lay advocate. Were those actions attributable to a lawyer, the client facing dismissal and the BSEA would have several avenues for redress: among them complaints to the Board of Bar Overseers, withholding fees or, in the most serious cases, claims for malpractice. There is no such relief available to the Parent who follows the sometimes inaccurate “legal advice,” the inartful prosecution practices, or simply the poor judgment of a lay advocate.
The Parent must instead rely on the BSEA to look beyond the errors of presentation to discern the relevant facts and appropriate legal arguments that could form the basis of her original claims. When the BSEA is aware that a parent lacks adequate representation in a matter before it, the BSEA must assure that the Parent is notified of her procedural and substantive obligations throughout the hearing process and of the consequences of failing to meet those obligations. The BSEA must also assure that the Parent has every reasonable opportunity to conform her conduct to expected standards, and to present her claims and evidence in a fair, orderly manner. While the BSEA has taken extraordinary procedural steps and given significant direction and latitude to the parent and advocate in this matter in order to accommodate the Parent’s requests and concerns about the hearing process, the BSEA has not explicitly notified the Parent of the serious consequences of continued failure to adhere to BSEA rules and to customary standards of courtesy and decorum in quasi-judicial proceedings. Without such a warning, dismissal with prejudice of the Parent’s limited claims is not supportable. I take that opportunity now.
The School’s Motion to Dismiss the Parent’s Appeal With Prejudice has substantial support on this record. There is no evidence though that the Parent was ever warned that her conduct or writings, or those of her advocate, could extinguish her special education claims. At this time therefore I find that the School’s Motion to Dismiss should not be granted. From this time all BSEA Rules will be strictly enforced and variance from those Rules will be disfavored. The Parent is notified that the BSEA will expect that all further filings will conform to BSEA Rules regarding content and timelines, that all communications with the BSEA and the School’s representatives will be in writing and will be professional and courteous, and that the behavior of the Parent and her advocate at the hearing will meet established standards of decorum as set out in the BSEA Rules and the Code of Adjudicatory Procedure. Failure to conform to these expectations will expose the Parent’s claims in this matter to Dismissal with Prejudice.
V. Conclusion
A.) 1. The Parent’s Motion to Rescind her January 6, 2011 Agreement to submit this matter for Decision on Documents pursuant to BSEA Rule XII is GRANTED;
2. The Parent’s Motion to Change the Venue of the Hearing to the Division of Administrative Law Appeals is DENIED;
3. The Parent’s Motion for Recusal is DENIED;
4. The School’s Motion to Dismiss BSEA #10-8142 with prejudice is DENIED.
B.) The issues for hearing, as set out in previous BSEA orders, are:
1. Whether Taunton Public Schools appropriately responded to the Parent’s December 4, 2009 Request for a Transitional Services Assessment?
2. If not, whether the Student was deprived of a free, appropriate public education as a result?
C.) The Parties have submitted their exhibits for the hearing record. The exhibits were examined by the Hearing Officer, appropriate objections were made and admissibility rulings entered on January 6, 2011. The Parent declined to submit additional documents or offers of proof at that time. The documentary record is therefore closed and supplementation will not be permitted. Each party will be permitted no more than four hours to present its witnesses.
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Date: March 8, 2011 Lindsay Byrne, Hearing Officer
1
“Nelson” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.