After two days of hearing secret testimony about a school board member’s alleged misconduct, the Hamburg Central School District’s lawyer said the sessions must be kept confidential because the proceedings are quasi-judicial.
But if the closed-door hearings are quasi-judicial, then they should be as open as a trial in a courtroom because they would not be covered by the state’s Open Meetings Law, according to the state’s expert on open government.
Nonetheless, school district attorney Andrew J. Freedman said the hearings, which are to resume this week, will remain closed.
And so it goes in Hamburg, where voters last month cast ballots in hopes that the notoriety their district has acquired in recent years would settle down. Then last week, the public was told to leave a school building during the hearing concerning the board member and the doors were locked behind them, raising more questions about the process.
The School Board has charged one of its members, Catherine Schrauth Forcucci, with official misconduct and could remove her from office if it finds her guilty. The board majority has closed the hearings. Schrauth Forcucci wants the hearings open.
“She wanted the opportunity to do this in public for people to see what she was being accused of, hear what people were saying, the manner that they deliver their testimony, how she refuted that, and to draw their own conclusions,” said her attorney, Margaret Murphy. “And in the end, that’s what we do in a democracy.”
The board heard testimony last week from Superintendent Richard Jetter, presumably talking about an incident Sept. 24, 2013 when Schrauth Forucci went to the administration building and demanded to see the district’s legal bills.
She is accused of berating and/or verbally attacking Jetter and invading his “personal space,” and refusing to leave on that day and three other occasions. His testimony is expected to continue this week.
She also is accused of similar charges in seven other incidents or interactions, as well as not returning executive session materials. One incident resulted in Boston Valley Principal James Martinez filing a harassment charge against her in Hamburg Village Court.
School Board attorney Freedman first raised the quasi-judicial argument for keeping the hearings closed at the start of the second session, Wednesday evening.
“It’s not an executive session and it’s not an open meeting. It’s neither. It’s a quasi-judicial proceeding,” Freedman explained later. “You’re allowed to do this without the public.”
But Robert J. Freeman, executive director of the state’s Committee on Open Government, said New York’s Court of Appeals issued a ruling in a different case that indicates quasi-judicial hearings should be open to the public.
“Even though the Open Meetings Law does not apply, a decision rendered by the state’s highest court suggests that this proceeding, characterized by the district lawyer as ‘quasi-judicial,’ should be open,” Freeman said.
The appeals decision involved an unemployment insurance hearing where the administrative law judge granted a motion to close the hearing to the public.
It said that while “an unemployment compensation hearing is not a criminal judicial proceeding,” the procedures of a judicial proceeding are appropriate to follow.
There is not a single definition of a “quasi-judicial” proceeding, but Freeman believes it includes proceedings where the body has the authority to take final action. Others suggest a quasi-judicial proceeding occurs when evidence is taken, parties are heard and there is a decision that can be reviewed by the courts.
So are the Hamburg school board hearings about one of its members quasi-judicial or not?
School Board attorney Freedman said he would take another look at the issue. The state law allowing the hearing is vague on details.
“There isn’t much guidance. We’re making new law,” he said. “It may mean that I have to take second or third looks to make sure what is going on is required.”
If the hearing is not quasi-judicial, then the board could hold it behind closed doors under the Open Meetings Law, because it concerns matters relating to the removal of a particular person.
The School Board has held two sessions, and will hold three more this week.
“One of our obligations is to protect the privacy and the confidentiality of the proceeding,” Freedman said.
Apparently part of protecting the confidentiality is keeping community members from being close enough to hear what is going on in the conference room in the Abbott Road administration building.
After the public and reporters were locked out of the building on a rainy night last Tuesday, reporters were told the building was being locked for security reasons, in light of the vandalism to the superintendent’s car last month.
But a board member and Freedman said another reason the public was told to leave the building is because the hearing has become loud at times as incidents involving Schrauth Forcucci are revisited.
“Quite frankly, you might hear some of the testimony,” Freedman said.
It’s hard to tell how fast the hearing is progressing, but board members have so far have heard from a single witness, Jetter.
Freedman said it may be moving a little slower than anticipated, but there is a lot of evidence to review.
“Once the proceeding began, it was just apparent it was just a fair, efficient way for this process to occur,” Freedman said. “I had mentioned before when the charges first arose that we didn’t want to create a spectacle, and being able to sit in this room with the stakeholders who will be deciding it was clearly efficient and met the goal that the district had when the charges were brought.”