Monday, May 13, 2013

The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.


The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.
O'Connor v Ginsberg, 2013 NY Slip Op 03363, Appellate Division, Third Department

In 2009, the Commission on Public Integrity notified the then President and Chief Executive Officer of the State University of New York Research Foundation [CEO] that it had received information indicating that he may have violated Public Officers Law §74 (3) (d), (f) and (h). The information received by the Commission alleged that he had secured employment for an individual "for which she was not qualified and for which she did little or no work," and had given her privileges that he did not confer on the other Research Foundation employees.*

During the course of its investigation the Commission made several attempts to secure the CEO’s sworn testimony concerning these allegations on a voluntary basis. These efforts were unsuccessful and the Commission issued a subpoena requiring the CEO to appear before it. This resulted in the parties entering into an agreement whereby “in exchange for the Commission's withdrawal of the subpoena, [the CEO] would appear voluntarily for a sworn interview on a date certain. The agreement also provided that the CEO would be given an opportunity to provide an unsworn statement or explanation concerning the matters under investigation.

After the CEO failed to appear on the date scheduled the Commission issued a Notice of Reasonable Cause (hereinafter NORC)** alleging that the CEO had knowingly and intentionally violated Public Officers Law §74 (3) (d), (f) and (h). The CEO’s attorney notified the Commission that the subpoena that accompanied the NORC requiring the CEO to provide testimony “informed the Commission that the subpoena was ineffective and, thus, [the CEO] would not be appearing to give testimony.”

The CEO then sought a court order “directing [the Commission] to commence an administrative hearing on the NORC on a fixed date and to appoint an independent hearing officer to preside over the hearing.” The Commission opposed the CEO’s petition and asked the court for an order compelling the CEO to comply with its subpoena.

Supreme Court dismissed the CEO’s petition, finding that he had failed to demonstrate a clear legal right to the relief sought. The court also denied Commission’s motion, concluding that the Commission's power to issue a subpoena was limited to the investigatory period preceding the issuance of the NORC. ***

The Appellate Division expressed a different view, stating that the Commission's interpretation of its regulation****was consistent with the overall purpose and spirit of Executive Law §94, which is to "strengthen the public's trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and fair and just resolution of all matters." 

Accordingly, said the court, its investigatory powers were not truncated upon its issuing a NORC.

The Appellate Division pointed out that “[f]ollowing the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations. Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute.”

Further, interpreting the regulation as “precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.”

The Appellate Division concluded that the Commission's investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a NORC.

Observing that the CEO “has continually resisted efforts by the Commission to secure his testimony,” the Appellate Division opined “the Commission should not be hamstrung by [the CEO’s] tactics …. To do so would abridge the Commission's statutory power to conduct an investigation and subpoena witnesses and ultimately impede its truth seeking function.”

* Subsequently the Commission issued a second letter in January 2010, which superceded and replaced the first letter, clarifying that the alleged misconduct related to acts occurring after April 25, 2007, the effective date of legislation that deemed the Research Foundation to be a "state agency" subject to the provisions of the State Code of Ethics set forth in Public Officers Law §74.

** See Executive Law §94 former [12] [b].

*** Supreme Court agreed with the Commission and dismissed the CEO’s petition. The CEO did appeal that ruling by Supreme Court but subsequently elected not to pursue it.

**** The Appellate Division pointed out that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference and should be upheld if not irrational or unreasonable, citing Transitional Services v NYS Office of Mental Hygiene, 13 NY3d 801.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03363.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.