Disciplinary hearing opened to the public

Disciplinary hearing opened to the public Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved. Matter of Doe v. City of Schenectady 84 AD3d 1455, (3d Dep't May 5, 2011), is an interesting case. The court holds that police disciplinary hearings can be open to the public. As the court explained: In any event, petitioners' contention that Civil Rights Law § 50-a mandates that disciplinary hearings be closed to the public is belied by both the language of the statute and its legislative history. Section 50-a (1) provides, in pertinent part: All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in [CPL 1.20] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order. Section 50-a created, for reasons that will be discussed below, an exemption from document disclosure that might otherwise occur under the Freedom of Information Law (see Public Officers Law art 6; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 567 [1986]). Nothing in section 50-a mentions the word disciplinary hearing, let alone requires that such hearings be held in private, and we discern no import from this omission other than the obvious – that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended (see Pajak v Pajak, 56 NY2d 394, 397 [1982]; Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 699-700 [2010], lv granted 15 NY3d 713 [2010]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 74 ["[T]he failure of the Legislature to include [a] matter within the scope of an act may be construed as an indication that its exclusion was intended."], § 94 ["The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction."]; Bright Homes v Wright, 8 NY2d 157, 162 [1960] ["Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist."]; People v Olah, 300 NY 96, 102 [1949] ["A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written." (citation omitted)];Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1339 [2008] ["In construing a statute, a court must attempt to harmonize all its provisions and to give meaning to all its parts, considered as a whole, in accord with legislative intent. Such intent and meaning is best determined from the plain language of the statutory text." (citations omitted)]). The legislative history of Civil Rights Law § 50-a is similarly unavailing to petitioners' position. The "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination" (Matter of[*4]Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 95 [1985], affd 67 NY2d 562 [1986] [citation omitted]; see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [2001], lv denied 96 NY2d 710 [2001]; Carpenter v City of Plattsburgh, 105 AD2d at 298; Senate and Assembly Introducer Mem in Support, Bill Jacket, L 1976, ch 413; Mem of Div of Criminal Justice Servs, Bill Jacket, L 1976, ch 413). The Court of Appeals has confirmed that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 569 [internal quotations marks and citation omitted]). Significantly, none of the legislative history mentions the topic of disciplinary hearings. Mitchell H. Rubinstein NYPPL Comment: The Commissioner's Regulations [see 8 NYCRR 82-1.9] provide that unless the employee notifies the hearing officer at least twenty-four hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. This provision appears to be inconsistent with present case law as well as placing a burden on the employee that does not appear to be mandated by law.

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