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Elements essential to a grand jury making a finding concerning a public official?s performance of his or her duties

Elements essential to a grand jury making a finding concerning a public official?s performance of his or her duties
Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007. 2009 NY Slip Op 00921, Decided on February 6, 2009, Appellate Division, Fourth Department

It is a rather rare occurrence for a grand jury to be asked to consider alleged misconduct by of public officer. In Second Report the Appellate Division considered the basis for a grand jury making a finding concerning a public official?s performance of his or her duties.

The issue arose when the ?first named public official? in a report by a Grand Jury, a public official of Seneca County, appealed a County Court?s decision directing that a grand jury report be filed as a public record.

The Appellate Division sustained the official?s appeal, indicating that "Without a [clear and adequate charge] as to . . . [the official's] duties, it was not only impossible for the Grand Jury to determine that [the official ] was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allowed the Grand Jury to simply substitute its judgment for that of [the official]"
The court said that it was "incumbent upon the prosecutor to instruct the Grand Jury regarding the duties and responsibilities of the public servant who is the target of the probe," citing Morgenthau v Cuttita, 233 AD2d 111, lv denied 89 NY2d 1042.

In this instance the court agreed with the official?s complaint that the special prosecutor's instructions concerning the official's duties were vague and inadequate.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00921.htm

Full post as published by New York Public Personnel Law on February 13, 2009 (boomark / email).