In Matter of Condon v. Inter-Religious Foundation for Community Organization Inc.

• Decision Date: 11 January 2008
• Docket Number: No. 406703/07,406703/07
• Citation: 18 Misc.3d 874,2008 NY Slip Op 28005,850 N.Y.S.2d 841
• Parties: In the Matter of RICHARD J. CONDON, as Special Commissioner of Investigation for the New York City School District, Petitioner, v. INTER-RELIGIOUS FOUNDATION FOR COMMUNITY ORGANIZATION, INC., Respondent. In the Matter of RICHARD J. CONDON, as Special Commissioner of Investigation for the New York City School District, Petitioner, v. LUCIUS WALKER, JR., Respondent.
• Court: New York Supreme Court

18 Misc.3d 874

850 N.Y.S.2d 841

2008 NY Slip Op 28005

In the Matter of RICHARD J. CONDON, as Special Commissioner of Investigation for the New York City School District, Petitioner, v. INTER-RELIGIOUS FOUNDATION FOR COMMUNITY ORGANIZATION, INC., Respondent.

In the Matter of RICHARD J. CONDON, as Special Commissioner of Investigation for the New York City School District, Petitioner, v. LUCIUS WALKER, JR., Respondent.

No. 406703/07

Supreme Court, New York County.

January 11, 2008.

New York Civil Liberties Union, New York City (Palyn Hung of counsel), for respondents.

Ann E. Ryan, Special Counsel, New York City, for petitioner.

OPINION OF THE COURT

JUDITH J. GISCHE, J.

Petitioner, Richard J. Condon, is the Special Commissioner of Investigation for the New York City School District (SCI). On or about September 10, 2007, the SCI served two separate subpoenas duces tecum respectively on the custodian of records for the Inter-Religious Foundation for Community Organization, Inc. (IFCO) and Reverend Lucius Walker, Jr. Reverend Walker is the founder and executive director of IFCO (collectively respondents).

The SCI has brought two separate petitions, pursuant to CPLR 2308, compelling compliance with such subpoenas. IFCO and Reverend Walker are jointly represented. Based upon substantially identical submissions and arguments, they each move to quash the subpoena directed toward them and dismiss the respective petitions. Since both petitions and the cross-motions raise substantially identical issues, they are consolidated for determination in this single decision and order.

The facts pertinent to the petitions and cross-motions are largely not in dispute. The Department of Investigation was established by the New York City Charter to investigate matters of concern to the city and its inhabitants. (General City Law § 20 [21]; New York City Charter ch 34.) In 1990, the Mayor of the City of New York issued Executive Order No. 11, which required that a Deputy Commissioner of Investigation, independent of the Board of Education (BOE), be appointed to investigate corruption, conflicts of interest, unethical conduct and other misconduct within the New York City School District. The title was changed to Special Commissioner of Investigation for the New York School District by Executive Order No. 34 of the Mayor of the City of New York in 1992, and Commissioner Condon is currently that Special Commissioner.

In April 2007 it came to Commissioner Condon's attention that BOE employees at the Beacon School in Manhattan were escorting groups of students on trips to Cuba that may have been in violation of federal laws restricting such travel. There is no dispute that Beacon, its employees and students operate within the auspices of the New York City School District. Commissioner Condon's office initially learned about these events through an article that appeared in the New York Post on April 16, 2007 and from a BOE employee who was asked by a reporter about a "tip" that five Beacon students and their teacher had been detained at the United States border during a recent spring break vacation. There is also information that BOE's permission for the last trip had been requested, but denied.

As a result of this preliminary information, Commissioner Condon initiated an investigation into these allegations. According to Commissioner Condon, the investigation is to determine, inter alia, whether any travel to Cuba was planned, arranged and taken by BOE employees and students of Beacon and whether any BOE employees committed "misconduct" in the planning, authorizing, facilitating or taking of such travel. Included within the investigation is whether BOE employees effectively informed the students, their parents or guardians, and BOE administrators of the federal government's restrictions concerning travel to Cuba. According to petitioner, and not disputed by respondents, the evidence developed thus far indicates that there have been at least four trips to Cuba by faculty and students of Beacon since 1999 and that some, if not all, of the trips were in violation of federal law. Commissioner Condon also claims that there is evidence that IFCO was involved in arranging some of these trips.

Respondents neither confirm nor deny IFCO's involvement in arranging these trips to Cuba. IFCO describes itself as the umbrella organization for Pastors for Peace, with a stated mission of defending the human rights of victims in Central America and the Caribbean. IFCO opposes the embargo against Cuba and "advocate[s] people to people contact for people of the United States anxious to understand why our government insists on punishing our brothers and sisters in Cuba in defiance of God's law and international law."

As a consequence of its findings thus far, petitioner issued the subject subpoenas in furtherance of the investigation. Neither IFCO nor Reverend Walker are the target of the subpoenas. The subpoenas provide in relevant part that the following documents be produced:

"Any and all records pertaining to travel to Cuba by students, staff and faculty of The Beacon School for the period of January 1, 2003 to the date of the subpoena. The records demanded include but are not limited to:

"1. Applications, including any supporting documentation;

"2. Permission slips;

"3. Itineraries, including arrangements related to transportation, lodging and food;

"4. Payments and/or contributions received from the students, faculty, staff and/or school; and

"5. Payments made on behalf of the students, faculty, staff and/or school, including for, but not limited to, transportation, lodging and food."

Discussion

An agency of the government may conduct an inquiry into the affairs of those within its jurisdiction if it can establish: (1) its authority for engaging in an investigation and issuing the subpoenas, (2) that the evidence sought is reasonably related to the subject matter of the inquiry, and (3) that there is an authentic factual basis to warrant the particular investigation. (Matter of Levin v Murawski, 59 NY2d 35 [1983].) IFCO and Reverend Walker raise legal objections that they believe not only justify their failure to comply with the subpoenas, but warrant quashing them and dismissing the petitions. They argue that the subpoenas: (1) are facially deficient, (2) exceed Commissioner Condon's authority to act, and (3) violate the 1st, 4th and 5th Amendments of the United States Constitution.

A. Facial Sufficiency of the Subpoenas

Respondents claim that the subpoenas are facially defective because they fail to contain a sufficiently particularized statement describing the nature of the investigation. They further argue that to the extent that Commissioner Condon has "cured" the defects by providing additional information in these petitions, the court should nonetheless quash them as a matter of public policy. The court rejects both of these legal propositions.

An investigative subpoena issued by an administrative agency is generally referred to as an office subpoena. (See Virag v Hynes, 54 NY2d 437 [1981].) Such subpoenas may be challenged by a motion to quash. Case law is clear that only after the motion is made must the issuer then come forward with a factual basis to establish the relevancy of the materials sought before the witness will be compelled to comply with the subpoenas. (Virag v Hynes, supra; Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 NY2d 916 [1969].) All the issuer must then show is that the materials sought have a reasonable relation to the subject matter under investigation and to the public purpose to be achieved. (Matter of N. v Novello, 13 AD3d 631 [2d Dept 2004].)

Contrary to respondents' arguments, there is no statutory and/or common-law precedent which requires that the burden must be satisfied by only looking to the face of the subpoena or prior to the making of a motion to quash. In this regard, Harlem Teams for Self-Help v Department of Investigation of City of N.Y. (122 Misc 2d 1066 [Sup Ct, NY County 1984]), relied upon by respondents, does not hold to the contrary. In Harlem, the court was not reviewing the challenged subpoenas for facial sufficiency; it was reviewing whether the agency had made the requisite showing of materiality and relevancy sufficient to support the subpoena at all. In making such evaluation, the court looked at the facial sufficiency of the subpoenas as well as the affidavit of the Commissioner submitted on the motion to quash. The court did not develop any standard by which to evaluate the facial sufficiency of office subpoenas.

Nor is the court persuaded by respondents' arguments that the actual subpoenas are overbroad. They are limited to specific events and time periods relevant to travel to Cuba by Beacon students chaperoned by Beacon employees. Even were the subpoenas somehow facially improper, the remedy is not to quash, but to limit their scope to permissible parameters. (New York State Commn. on Govt. Integrity v Congel, 142 Misc 2d 9 [Sup Ct, NY County 1988], affd as mod 156 AD2d 274 [1st Dept 1989], appeal dismissed 75 NY2d 836 [1990].)

B. Commissioner Condon's Scope of Authority

Respondents make two categories of arguments that the subpoenas issued exceed Commissioner Condon's authority to act. First, they argue that matters of travel to Cuba are exclusively within the domain of the federal government. Second, they argue that the matters being investigated are beyond the jurisdictional authority conferred by Executive Order No. 11.

Respondents argue that foreign relations, and specifically foreign policy with respect to Cuba, is exclusively within the domain of the federal government. In so arguing, they rely upon the Supremacy Clause of the United States Constitution and federal laws and regulations imposing a trade embargo with Cuba. They collaterally argue that SCI's investigation will interfere with a pending federal...