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Tuesday, June 14, 2011

Essentially there are not to be any “Star Chamber” proceedings for Section 75 hearings without a court order*

Essentially there are not to be any “Star Chamber” proceedings for Section 75 hearings without a court order*
A footnote to “Testifying in a court room closed to the public, Bobb v Senkowski, CA2, 196 F.3d 350,” concerns the issue of holding Civil Service Law Section 75 disciplinary hearings that are closed to the public.

The basic rule: Unless the employee asks that it be closed and that request is granted by the hearing officer or agreed to by the appointing authority, the public may not be barred from the proceeding.

As to any application to close the hearing to the public, in the absence of the employer's agreement to do so, the employee must obtain a court order closing the proceeding to the public. By the same token, should the appointing authority wish the disciplinary hearing to be closed to the public, it must obtain a court order to that effect absent the employee's agreement to have the hearing closed to the public.

In contrast, the Commissioner of Education, in implementing Section 3020-a, adopted a rule [see 8 NYCRR 82-1.9] mandating that the hearing be closed to the public unless the accused individual makes a timely request to the hearing officer to have the hearing open to the public.**

The courts, however, have taken a somewhat different view in cases involving disciplinary action taken against a "professional" by an "oversight" or licensing agency for alleged professional misconduct. As the Court of Appeals noted in McBarnette v Sobol, 83 NY2d 333: ... even though the complaints are submitted to the physician, because these proceedings have traditionally been regarded as confidential (see, Doe v Office of Professional Med. Conduct of N.Y. State Dept. of Health, 81 NY2d 1050; Matter of Johnston Newspaper Corp. v Melino, 77 NY2d 1, 10; Matter of Capoccia, 59 NY2d 549, 553), the complainants' interests in privacy regarding these matters have not been abandoned. The policy of confidentiality that we would recognize absent the statute, because such policy "serves the purpose of safeguarding information that a potential complainant may regard as private or confidential and thereby removes a possible disincentive for filing complaints," remains intact (Matter of Johnston Newspaper Corp. v Melino, supra, at 10-11). This confidentiality also protects the accused physician by preventing any unwarranted mar upon that professional's reputation (id. at 11).

The confidential and safeguarded nature of proceedings involving potential discipline of licensed professionals has been reaffirmed by our recent holding that disciplinary proceedings should not be open to the public and disclosure should not occur before the proceedings have been finally determined (see, Doe v Office of Professional Med. Conduct of N. Y. State Dept. of Health, supra; see also, Matter of J.P. Chassin, 82 NY2d 694 [proceedings involving ophthalmology specialist must remain confidential until finally determined]).

The courts [and in the case of educators, the Commissioner of Education] have apparently decided to treat professional disciplinary matters, i.e., those involving physicians, engineers, lawyers and other "licensed" professionals differently than employees in the public service, with a then finer distinction drawn between those in the classified service such as those whose disciplinary action is subject to Civil Service Law Section 75 and those employed in education [serving in an unclassified service position] who must be licensed to teach or perform administrative duties in the public schools with respect to disciplinary action taken pursuant to Education Law Section 3020-a.

It appears that in a McBarnette situation the courts take the position that a "professional's reputation" could be irreparably injured notwithstanding the individual's acquittal or exoneration of the allegations made while in an employee disciplinary action the acquittal of the individual typically results in reinstatement with back salary by the same employer. The Commissioner seems to fall between these two views, permitting an open hearing only in those instances where the accused demands the hearing be open to the public.

* The Star Chamber Court, located in Westminster Palace, London, England, is so named because its sky-like ceiling was painted with stars. Initially it conducted its proceedings in public. Through political evolution, by the reign of Charles I it “had become a byword for misuse and abuse of power,” frequently conducting its sessions in secret. In 1641 the court was abolished by the so-called “Long Parliament.” Today Star Chamber is a euphemism for arbitrary proceedings conducted in secret to the detriment of personal rights and liberty.

** The genesis of this rule may reflect the fact that the disciplinary files of the Department of Education are “confidential and not subject to disclosure at the request of any person, except upon the order of a court in a pending action or proceeding” (Education Law § 6510 [8]), and thus a Section 3020-a disciplinary hearing should not be automatically open to the public.

The Bobb decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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