Thursday, June 22, 2017

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?


Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?
2017 NY Slip Op 04624, Appellate Division, Fourth Department

The Board of Education [School Board] sought to remove one of its members [Member] from her position on the School Board pursuant to Education Law §1709(18).

Subdivision 18 of §1709 sets out the relevant procedures to be followed in the event a school board seeks to "remove any member ... for official misconduct" and requires that a "written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal."

Member challenged the School Board's procedure in holding the hearing concerning her removal from the board, contending that the School Board had violated her First Amendment right of access when it closed the first three days of the Member's removal hearing to general public. Supreme Court denied her motion for summary judgment and Member appealed.

The Appellate Division unanimously affirmed the Supreme Court's ruling and, addressing the School Board's action barring the public from "the first three days" of the hearing, said:

1. "The First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the government from 'abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances';

2. "[A] trial courtroom ... is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and the quality of what takes place;

3. "The United States Supreme Court has applied a two-part test to determine whether there was a right of access under the First Amendment [see Press-Enterprise Co. v Superior Ct. of Cal., County of Riverside, 478 US 1, 8-10], and the [New York State] Court of Appeals has used that test to determine whether there is a right of access to a professional disciplinary hearing;

4. "The test requires a court to consider 'whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question'; and

5. "Once it has been determined that there is such a right of access, then the proceeding 'cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'"

The Appellate Division found that Member failed to submit evidence establishing that, as a matter of law, removal hearings conducted pursuant to Education Law §1709(18) have historically been open to the public and that the public has played a significant positive role in such proceedings.

Accordingly, the court concluded that Supreme Court "properly denied [Member's] motion on the ground that [Member] failed to meet her burden of establishing as a matter of law that there is a First Amendment right of access to an Education Law §1709(18) removal proceeding."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_04624.htm

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