The long-running hearing to remove a Hamburg School Board member may or may not be quasi-judicial, but one thing seems clear: whether it will continue to be held in secret will be up to a judge.
The drama shifted to the courtroom Thursday in the district that has seen more than its share of turmoil in recent years.
School Board members canceled the scheduled closed-door proceedings Thursday night, but the hearing may resume tonight.
The district is appealing a temporary restraining order issued Thursday, and is hoping the Appellate Division of State Supreme Court will allow the hearing to continue in executive session.
State Supreme Court Justice Diane Y. Devlin said Thursday the board can continue the hearing only if it is held in public.
She issued a temporary order that was to remain in effect until Wednesday, when district representatives and the attorney for board member Catherine Schrauth Forcucci are to appear before her again.
But Andrew Freedman, the attorney for the district, said he is asking the Appellate Division to review Devlin’s decision.
The board, without Schrauth Forcucci, met with Freedman Thursday evening to review the latest legal developments.
“After a robust exchange of ideas, and beliefs and emotions, and philosophies, the board is going to await further direction from the court before it proceeds,” he said.
The School Board is in the midst of a hearing that could lead to the removal of Schrauth Forcucci for official misconduct. She has repeatedly said she wants the hearing conducted in public, but the board has held it in a closed executive session.
A fourth day of testimony was planned for Thursday night, and a fifth session was scheduled tonight. Freedman said while the board waits to hear from the court, “the district will act as it always has here, in conformity with the law.” If tonight’s session is canceled, it will be announced on the district website, he said.
Margaret A. Murphy, the attorney for Schrauth Forcucci, 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.
Freedman told the judge that if she ordered the board to hold an open disciplinary hearing, it would “disrupt the educational environment”at a time when students and teachers are busy with final exams.
He noted that if the hearing were opened and the media covered it, students would be talking about the hearing testimony instead of focusing on their exams.
The judge suggested putting off any public hearing until after exams so it would not disrupt the end of the school term and exams.
But Freedman noted that one board member’s term is up June 30 and said putting off the hearing “would be severely prejudicial to my client.”
However, the School Board has allowed Cameron Hall, who will take office July 1, to sit in on the hearing so in the event it runs beyond June 30, he would be able to vote on whether to remove Schrauth Forcucci.
Freedman asked Devlin to reconsider her decision to order the board not to hold any more closed hearing sessions until Wednesday, when the court will hear more legal arguments in the case.
He said that it would result in the board losing two hearing days, referring to Thursday’s and today’s sessions.
Murphy said that given the number of witnesses expected to testify at the hearing and the fact that only one has testified so far, it is unlikely the hearing will be finished by June 30.
Freedman and Jill Yonkers, another attorney for the School Board, stressed the need to keep the hearing closed in order to protect school officials who fear for their safety if the hearing is opened.
They cited vandalism to the superintendent’s home and car, noting that someone left a note on the car threatening him.
There are questions that will arise from any Appellate Court ruling on the hearing:
•If the judge rules the hearing should be open, how would that work, after 10 hours and 25 minutes of the proceeding has already taken place in secret?
Would it have to start over? Would the previous testimony remain secret, and new testimony be held in an open session?
One possibility would be to follow the solution offered by the Court of Appeals in the case cited for opening up quasi-judicial proceedings, said Robert J. Freeman, executive director of the New York State Committee on Open Government.
In that case, Herald Co. Inc. v. Weisenberg, the court decided that the press should not have been excluded from a quasi-judicial hearing, and that a transcript should be made available.
Freeman suggested that a transcript of the first three days be made public.
• Where would it be held if it is open? The board has held the hearing to date in the board conference room in the administration building. Tables are situated in an oval, with the hearing officer and stenographer on one end. There is a row and a half of seats for the public.
Board meetings have been held in the small conference room in the administration building, but moved to the Middle School and then Union Pleasant Elementary School as attendance grew.
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