April 29, 2020

Application to quash a subpoena ad testificandum


Following an investigation, a tenured high school principal [Principal] employed by the New York City Department of Education [NYCDOE]  was served with charges and specifications of misconduct alleging the improper utilization of school funds for inappropriate or personal reasons.

An Education Law §3020-a disciplinary hearing was conducted and 23 of the charges and specifications filed against Principal were sustained. The Hearing Officer concluded that the appropriate penalty to impose would be termination from service. The Chancellor of NYCDOE sustained the findings of the Hearing Officer that Principal was guilty of misconduct but, citing mitigating factors including Principal's "years of unblemished service," reduced the penalty to [1] a six-month suspension without pay and [2] removal from the position of principal and [3] assignment to a nonsupervisory administrative position.

Principal subsequently entered into a "stipulation of settlement" with NYCDOE pursuant to which, among other things, NYCDOE agreed 

[1] not terminate Principal; 

[2] suspended Principal for six months without pay; 

[3] reinstate Principal to her tenured teaching position; and 

[4] assign Principal to a nonteaching position. In addition  NYCDOE and Principal mutually agreed to release the other from any future claims related to the disciplinary matter.

The a complication arose. 

Principal's representative in the §3020-a disciplinary action was a union-assigned attorney [Attorney]. During the course of the disciplinary hearing, Attorney applied for and accepted a position as executive deputy counsel with NYCDOE, whereupon Attorney recused herself from representing Principal in the then ongoing §3020-a disciplinary action. 

Principal continued pro se* through the remainder of the disciplinary hearing and entered into the stipulations of settlement described above.

Based upon the disciplinary findings, New York State Department of Education [SED] commenced a decertification proceeding to determine if Principal was of good "moral character" and entitled to retain her teaching certificate. SED then moved to apply the findings of fact made by the Hearing Office in the disciplinary hearing in the decertification hearing under color of the doctrine of collateral estoppel.

The Hearing Officer in the SED proceeding granted SED's motion subject to the qualification, among others, that collateral estoppel would not apply if Principal lacked "competent counsel" at the disciplinary hearing. At Principal's behest, the  Hearing Officer  in the decertification proceeding issued a subpoena ad testificandum** requiring Attorney, now a NYCDOE employee and nonparty witness, to testify at the decertification hearing to assist in Principal's defense against the application of collateral estoppel based upon her claim that she lacked competent counsel at the disciplinary hearing.

The Hearing Officer denied NYCDOE's motion to quash the subpoena, finding that Attorney's testimony would be relevant to Principal's defense that she lacked competent counsel. NYCDOE then moved in Supreme Court to quash the subpoena. Principal opposed the motion and sought a court order to compel compliance with the subpoena.

Supreme Court granted the motion to quash, finding, among other things, that Attorney's testimony was immaterial to the decertification hearing in that it did not concern Principal's moral character. Principal appealed the Supreme Court's decision.

The Appellate Division, explaining that the "limited issue" it was whether the subpoena ad testificandum issued in the pending SED administrative decertification matter was properly quashed by the Supreme Court.

Noting that a subpoena ad testificandum will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry, the Appellate Division, citing Kapon v Koch, 23 NY3d at page 39, said that the party moving to quash bears "the burden of establishing that the subpoena should be [quashed] under such circumstances."

Principal sought to subpoena Attorney in order to defend — in the decertification proceeding — against SED's request to collaterally estop Principal from challenging the factual findings made at the §3020-a disciplinary hearing.

Opining that factual findings made in the course of a disciplinary hearings have been given collateral estoppel effect, provided the party to be precluded "had a full and fair opportunity to be heard with respect to the charges of misconduct," the Appellate Division pointed out that the SED Hearing Officer recognized this issue and only provisionally granting SED's motion to apply collateral estoppel in the ongoing decertification proceeding.

As to Principal's contention that she "lacked competent counsel" in the §3020-a disciplinary proceeding, the Appellate Division said that the SEC Hearing Officer noted that "[e]vidence admitted to date shows that while representing ... [Principal] in the [§3020-a disciplinary] proceeding ... [Attorney] was actively seeking employment with [NYCDOE] [and, d]uring the course of the [disciplinary] proceeding .... [Attorney] was offered and accepted a position with [NYC]DOE." 

This alone, said the Appellate Division, is sufficient to allow Principal to inquire into Attorney's handling of her [§3020-a disciplinary] action "for the purpose of avoiding the application of the doctrine of collateral estoppel." 

In other words the Appellate Division deemed Attorney's testimony "highly relevant to whether collateral estoppel will be applied in the pending SED decertification proceeding."
 
Accordingly, the court found that NYCDOE had not satisfied its burden of proof with respect to its motion to quash the subpoena. While stating that it "express[es] no opinion on the ultimate merits of the collateral estoppel defense or any other issue," the Appellate Division concluded that Attorney's testimony at the decertification proceeding "is not 'utterly irrelevant' to the inquiry regarding the preclusive effect, if any, to be given to the factual findings made at the disciplinary proceeding."

Thus, it was error for Supreme Court to have quashed the subpoena.

* To act as one's own attorney.

** A subpoena ad testificandumrequires a person to come to court to testify in the event the person declines to come on his own. Another type of subpoena, a subpoena duces tecum, is used to require an individual to bring specified documents, papers or writings to the court to be used as evidence.

The decision is posted on the Internet at:

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