Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Accused employee does not have a right to discovery in Section 75 disciplinary proceedings

Accused employee does not have a right to discovery in Section 75 disciplinary proceedings
Matter of Utica City School Dist. v Fehlhaber, 59 AD3d 957

The Utica City School District filed Section 75 disciplinary charges against Craig S. Fehlhaber, its Superintendent of Buildings and Grounds. The proposed penalty to be imposed: termination.

Fehlhaber asked Supreme Court to issue a subpoena duces tecum pursuant to CPLR 2307* requiring the District to give him e-mails sent or received by the Superintendent of the School District, and certain member of school district's Board of Education relating to public matters and a list of the e-mail addresses used by members of the Board of Education, including privately maintained e-mail addresses "where public business is believed or known to be conducted."

The Appellate Division sustained Supreme Court?s denying Fehlhaber?s motion, finding that the demand for such material ?overly broad ? and [Fehlhaber] failed to establish the requisite ?factual predicate' [that] would make it reasonably likely that documentary information will bear relevant and exculpatory evidence.?"

In the words of the Appellate Division, ?the motion was nothing more than a fishing expedition and an attempt to circumvent the fact that there is no right to discovery** in a proceeding pursuant to Civil Service Law §75.?

* Typically ?a library, department or bureau of a municipal corporation or of the state? may decline to provide documents or records pursuant to an attorney?s subpoena, in which case it is necessary to obtain a judicial subpoena for this purpose. In some instances the hearing officer has statutory authority to issue a subpoena as is the case in disciplinary proceedings conducted pursuant to Section 3020-a of the Education Law. [see Section 3020-a 3. c. (iii) (A).]

** In contrast, Section 3020-a 3. c. (iii), in pertinent part, provides that the hearing officer may ?(C) hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements), investigatory statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee's defense.?

Full post as published by New York Public Personnel Law on March 01, 2010 (boomark / email).