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

Labor & Employment Law

: New York Public Personnel Law

Special Grand Jury?s report ordered sealed after public officer who was the target of the investigation resigned from public office

Special Grand Jury?s report ordered sealed after public officer who was the target of the investigation resigned from public office
Matter of Seventh Report of Seneca County Special Grand Jury of Jan. 2007, 60 AD3d 1446

Seneca County Court Justice Dennis F. Bender directed that ?Report Number 7 of the January 2007 Seneca County Special Grand Jury" be accepted and then directed that the report be sealed and that all references to a named individual ?who was a target of the investigation in question, and resigned from the public office in which he had been employed? be redacted.

R. Michael Tantillo, the special prosecutor, appealed.

The Appellate Division affirmed Justice Bender?s ruling, noting that Section 190.85(1)(a) of the Criminal Procedures Law provides that a grand jury may submit a report "[c]oncerning misconduct, non-feasance or neglect in public office by a public servant ? as defined by Penal Law §10.00 (15) ? as the basis for a recommendation of removal or disciplinary action.?

Here, however, said the court, ?[w]here, as here, a public servant has voluntarily resigned from public office, a Grand Jury report no longer contains a viable recommendation of either removal or disciplinary action and is, therefore, no longer acceptable under the terms of CPL 190.85,? citing Matter of Onondaga County District Attorney's Off., 92 AD2d 32.

In this instance, said the court, ?[t]he grand jury report thus should be sealed with respect to that public servant? because ?[a]lthough respondent was subsequently employed in another public office, that subsequent position was distinct from the prior position in which he engaged in the alleged misconduct."

The allegations of misconduct considered by the Grand Jury therefore "do not pertain to [a] person presently employed [in] the public office in question."

Justices Fahey and Pine dissented, noting that in Matter of Onondaga County District Attorney's Office, 92 AD2d 32, ?this Court concluded that a court's central inquiry when examining the circumstances surrounding the resignation of a named party in a grand jury report is whether that party continues to be a ?public servant.??

Concluding that the individual?s action ? resigning ? was "an obvious means of circumventing the statutory scheme," Justices Fahey and Pine said that they would reverse the County Court?s order and direct the filing of the report as a public record.

Full post as published by New York Public Personnel Law on February 11, 2010 (boomark / email).