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The Hamburg School District plans to appeal the order issued today by a State Supreme Court justice that “temporarily restrained” the School Board “from conducting a hearing in executive session on the proposed removal” of a member of the board.

Andrew Freedman, attorney for the district, said the district plans to appeal the restraining order to the State Court of Appeals on Friday.

Justice Diane Y. Devlin said in court today that the board can continue the disciplinary hearing against Catherine Schrauth Forcucci, which began last week, only if it is open to the public.

Under Devlin’s order, the closed session that had been scheduled for 6:30 p.m. today could not be held. Whether a hearing is scheduled for 6 p.m. Friday will be held depends on what happens in court Friday.

The board did not resume the hearing tonight, but reporters were again locked out of the building when the board went into executive session.

A court official said attorneys for the board indicated they would not open the hearing.

Andrew Freedman, attorney for the school district, said the district plans to appeal the restraining order to the State Court of Appeals on Friday.

Devlin’s order was to remain in effect until Wednesday, when she had scheduled another court hearing on the matter, with attorneys for Schrauth Forcucci, and the School Board present.

The judge issued her order after Margaret A. Murphy, Schrauth Forcucci’s attorney, filed papers asking the court to order the School Board to allow the public to observe the disciplinary hearing.

The board majority in April charged Schrauth Forcucci with official misconduct, claiming she berated and criticized Hamburg school officials and disrespected the board president, violating board policy and the district’s code of conduct.

The board had been conducting the hearing in secret, and its attorney said the board is following the Open Meetings Law, which allows a board to go into executive session for matters relating to the removal of a person from office.

Schrauth Forcucci has repeatedly asked that community members be allowed to attend the hearing.

Murphy said in court papers that the closed hearing violates Schrauth Forcucci’s rights under the First Amendment and the state Constitution.

She also said the hearing is a quasi-judicial proceeding and cited rulings by the state Court of Appeals in two cases that such proceedings are presumed to be open to the public.

She also said the Open Meetings Law does not apply to this proceeding, meaning that the law’s exemption allowing the board to go into executive session on matters involving removing a board member does not apply.

“She’d like to have these matters heard in a public session, so the public who elected her to his position, can hear what has been alleged against her, hear how she’s refuting those charges,” Murphy said.

At today’s hearing, Murphy noted that impeachment proceedings against U.S. presidents were not held behind closed doors.

“It was done in public because they’re elected officials who must be held accountable to the public,” she told the judge.

She said her client also is an elected official and entitled to a public hearing on the charges against her, adding that her reputation has already been tainted by the allegations.

Jill Yonkers, of the Hodgson Russ law firm, one of the attorneys representing the School Board, said impeachment proceedings involve federal law, while this case involves state education law.

She said a judge ruled two years ago in a case involving the Lewiston-Porter School District that state education law doesn’t require a disciplinary hearing to be open.

After listening to arguments from both sides, Devlin said the Hamburg hearing should be open, noting that she had not yet seen any case law from the School Board attorneys saying the hearing should be held in executive session.

The School Board attorneys said they had just received Murphy’s legal papers and have not had time to file a full response. They are expected to do so by Wednesday’s 9:30 a.m. court hearing.

email: jstaas@buffnews.com

and bobrien@buffnews.com