Norm Pattis ()
I generally try to stay out of administrative hearings of any sort. Putting on evidence without the reliance on the code of evidence seems too much like, well, sex without a condom. Poking and prodding without protection is going to yield all sorts of infection.
So when I appeared the other evening before a municipal police commission on behalf of a fired cop trying to get his job back, I was more than a little uncomfortable. The city was permitted to offer as a full exhibit an Internal Affairs report. We objected, of course. But hearsay is not a cognizable objection in administrative fora. The document became a full exhibit.
Once the city had finished examining the witness who relied on all the multiple levels of hearsay to recommend discipline, I began my cross-examination. The objections started flying fast and furious, then. “Relevance,” my adversary hissed. “Sustained,” the chairman said. But wait? I thought the rules of evidence didn’t apply. I can’t question the witness on matters related to this investigation, including his bias, and the bias of the administration?
Move on, I was told. Focus on the issue before the commission. The chairman did not want to hear about the fact that I was questioning the witness within the scope of the questions the city’s lawyer had just asked. “She opened the door,” I said.
Move on, counsel.
So I did.
I started questioning the witness about the contents of the document the city had offered as a full exhibit. More objections now. When I referred to the fact that one of the hearsay declarants referred to in the report told officers she took medication for schizophrenia – a fact noted in the report – it was if I had tossed a Molotov cocktail. I was violating the witness’s privacy rights, the city intoned.
Nope. The witness told that to the cop.
Besides, I was questioning the witness at the hearing about a document he had just testified about using a document the city had moved into evidence.
The commission quickly went into executive session. Afterward, it was suggested the city could withdraw the exhibit if it were submitted in error, and the city could offer a redacted exhibit in its stead, removing the material that reflected what a witness had told an officer about her medical condition. The city took the invitation to do so, and the hearing was adjourned.
Along the trip down this tortured boulevard, both the lawyer for the city and I lost our tempers. She accused me of grandstanding; I referred to her lawyering as incompetent in the handling of exhibits. As is usually the case in contested matters where I let my temper do the talking, I said some things I regret, and I am sure I did not show the tribunal the respect it deserved.
So when the hearing was set to resume, I wasn’t altogether surprised when my adversary called in sick. What did surprise me was the call my office received. There will be no evidence that night, and our client was not required to attend. But the chairman wanted me to attend the meeting nonetheless so that he could describe his “policies about how the hearing” will be conducted.
I informed the commission staffer I would not attend such an ex parte hearing; that I’d never heard of such a thing. And I did not attend.
I tossed and turned that night wondering if I would now get the Rich Gudis treatment. He was grieved for his too aggressive representation of union members before the East Haven Police Commission.
I’ll keep you posted.
In the meantime, a word of advice: When in administrative hearings expect the unexpected. You will rarely be disappointed.
Norm Pattis is a criminal defense lawyer and a civil rights lawyer in Bethany. Most days he blogs at www.pattisblog.com.