Monday, March 15, 2010
Authority of the New York City’s Department of Investigation to compel an individual to comply with an “investigative subpoena”
Matter of Parkhouse v Stringer, 12 NY3d 660
Virginia Parkhouse's testimony at a public hearing before a New York City agency prompted a complaint by a public official, followed by a subpoena to Parkhouse from the New York City Department of Investigation (DOI). Parkhouse petitioned the court to quash the subpoena, claiming that it exceeds DOI's investigative authority and interferes with her First Amendment rights.
The Court of Appeals said that it “recognize the importance of protecting citizens who speak publicly to their government from intrusion and harassment that may result from official displeasure with what they say.” Noting that applying the special scrutiny test “an investigative subpoena will be upheld only where sufficient facts are shown to justify the inquiry,” the court ruled that in this instance “DOI has made such a sufficient showing and, accordingly, its subpoena was valid.”
The facts underlying DOI’s issuing its subpoena are set out in the decision.*
Significantly, one of the arguments advanced by Parkhouse was that because she is neither a city employee nor a person doing business with the city and thus she was not subject to the jurisdiction of DOI, as New York City Charter §803(d) provides that "the jurisdiction of the commissioner shall extend to any agency, officer, or employee of the city, or any person or entity doing business with the city, or any person or entity who is paid or receives money from or through the city or any agency of the city."
The Court of Appeals said that §803(d) has not been read as a limitation on the witnesses DOI may subpoena, citing Matter of Weintraub v Fraiman, 30 AD2d 784, aff’d 24 NY2d 918.
The Weintraub decision holds that DOI’s inquisitorial power "reaches any person, even though unconnected with city employment, when there are grounds present to sustain a belief such person has information relative to the subject matter of the investigation."
* The decision indicates that DOI was investigating the content of Parkhouse's statement at the hearing, alleged to constitute an “inaccurate reading of the Borough President's letter,” and quoting from Herbert v Lando, 441 US 153, states that the “spreading false information in and of itself carries no First Amendment credentials … as there is no constitutional value in false statements of fact….”
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