Opinion
February 24, 1977
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Lombardi, Reinhard Walsh, P.C. (Richard P. Walsh, Jr., of counsel), for petitioner.
John E. Roe, Corporation Counsel (John M. Devine of counsel), for respondents.
On this appeal petitioner contends that the determination should be annulled for the reason, inter alia, that the denial of his request that the hearing on the charges in question be opened to the public was violative of his right to due process of law.
The hearing was held pursuant to section 75 Civ. Serv. of the Civil Service Law, wherein petitioner faced possible suspension or demotion in his employment, dismissal from employment or a fine to be deducted from his wages (Civil Service Law, § 75, subd 3). Employment rights have been held to be within the liberty and property concepts of both the Fifth and Fourteenth Amendments and entitled to their protection, and when the State or a subdivision thereof conducts a hearing which may result in deprivation of employment, or the imposition of a fine or other monetary penalty, the affected employee is entitled to procedural due process. Due process requires that, when requested by an employee, the hearing be open to the press and the public. This accords not only with the Federal judicial tradition but also to general practice in administrative proceedings (Fitzgerald v Hampton, 467 F.2d 755; Matter of Randall v Toll, 74 Misc.2d 315; 2 Am Jur 2d, Administrative Law, §§ 229, 412). While valid reasons may sometimes exist for denying the request for an open or public hearing, none are set forth in the instant case. Accordingly, we conclude that petitioner's request for an open hearing should have been granted, and that the matter must be remitted for that purpose. We pass on no other issues.
The determination should be annulled, and the matter remitted for further proceedings not inconsistent herewith, without costs.
SWEENEY, KANE, MAHONEY and MAIN, JJ., concur.
Determination annulled, and matter remitted for further proceedings not inconsistent herewith, without costs.