New York State Com'n on Government Integrity v. Congel

• Decision Date: 21 December 1989
• Citation: 548 N.Y.S.2d 663,156 A.D.2d 274
• Parties: NEW YORK STATE COMMISSION ON GOVERNMENT INTEGRITY, Petitioner-Respondent-Appellant, v. Robert J. CONGEL, et al., Respondents-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 663

548 N.Y.S.2d 663

156 A.D.2d 274

NEW YORK STATE COMMISSION ON GOVERNMENT INTEGRITY Petitioner-Respondent-Appellant, v. Robert J. CONGEL, et al., Respondents-Appellants-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 21, 1989.

J.M. McGuire, for petitioner-respondent-appellant.

S.M. Litvack, for respondents-appellants-respondents.

Before MURPHY, P.J., and KUPFERMAN, ROSS, ROSENBERGER and RUBIN, JJ.

MEMORANDUM DECISION.

Orders of the Supreme Court, New York County (Kristin Booth Glen, J.), both entered on or about December 20, 1988, which (1) granted that part of petitioner's motion, pursuant to CPLR 2308(b), to compel respondents to comply with subpoenas ad testificandum served upon them by petitioner, but which denied the motion insofar as it sought compliance with subpoenas duces tecum, and (2) upon reargument, adhered to its original decision, respectively, modified, on the law, to grant petitioner's motion to compel as to the subpoenas duces tecum, and except as so modified, affirmed, without costs.

At issue upon this appeal is the enforceability of subpoenas duces tecum and ad testificandum issued by petitioner New York State Commission on Government Integrity to respondents Congel, Ungerer and Kenan. Respondents are principals of the Pyramid Companies, a real estate development group based in Syracuse. The subpoenas were issued in connection with petitioner's investigation of the circumstances attending the expenditure by persons and entities affiliated with Pyramid of hundreds of thousands of dollars in Town Council elections held in Poughkeepsie, New York in 1985. The money was apparently funneled into the Town Council campaign without the knowledge of either the voters or the candidates to help secure the election of candidates sympathetic to Pyramid's previously rejected proposal to construct a large shopping mall in Poughkeepsie.

The Commission's investigation of the Poughkeepsie election was begun in July 1987 pursuant to a broad grant of investigative authority contained in Executive Order 88.1 (9 NYCRR 4.88), the order establishing the Commission, signed by Governor Cuomo on April 21, 1987. The Commission was established as a successor to the State-City Commission on Integrity in Government, the latter agency having recommended in its report to the Governor the appointment of a new commission with investigative powers "including the authority to compel the attendance and testimony of witnesses and the production of records" (Executive Order 88.1, preamble). The Governor concurred with this recommendation, observing in his order, "it is my judgment that it is of compelling public importance that weaknesses in existing laws, regulations and procedures relating to government integrity be further investigated and addressed" (Executive Order 88.1, preamble). The new commission appointed by the Governor was accordingly authorized "to investigate the management and affairs of any department, board, bureau, commission (including any public benefit corporation) or political subdivision of the state in respect to the adequacy of laws, regulations and procedures relating to maintaining ethical practices and standards in government, assuring that public servants are duly accountable for the faithful discharge of the public trust reposed in them, and preventing favoritism, conflicts of interest, undue influence and abuse of official position, and to make recommendations for action to strengthen and improve such laws, regulations and procedures" (Executive Order 88.1, I). As is here relevant, the new commission was specifically directed to "[I]nvestigate weaknesses in existing laws, regulations and procedures relating to campaign contributions and campaign expenditures, and determine whether such weaknesses create an undue potential for corruption, favoritism, undue influence or abuse of official position or otherwise impair public confidence in the integrity of government" (Executive Order 88.1 II[5]. In addition the Commission was directed to "[I]nvestigate weaknesses in existing enforcement machinery for laws, regulations and procedures relating to unethical practices, and determine whether such weaknesses create undue potential for corruption, favoritism, undue influence or abuse of official position or otherwise impair public confidence in the integrity of government" (Executive Order 88.1 II[3]. To carry out its assignment, the Commission was vested with the investigative powers of the Attorney General enumerated in § 63 of the Executive Law, among which is the power to subpoena witnesses and documents. The possibility that the Commission would, in the course of its inquiry, come across evidence of criminal wrongdoing was contemplated in the Order which provided that "such evidence shall promptly be communicated to the appropriate law enforcement authorities" (Executive Order 88.1 VII). In this regard the Order further provided, "[T]he Commission shall cooperate with prosecutorial agencies to avoid jeopardizing ongoing investigations and prosecutions." (Id.)

The subpoenas in question were issued in December, 1987, after attempts by the Commission at eliciting the respondents' voluntary disclosure of the sought-after testimony and documents met with failure. When, well beyond the return date, responsive documents remained unproduced and there appeared no prospect that they would be produced, the Commission moved pursuant to CPLR 2308(b) to compel compliance with the subpoenas. The motion to compel was granted as to the subpoenas ad testificandum, but denied as to the subpoenas duces tecum.

The motion court denied enforcement of the subpoenas duces tecum because it was of the view that the disclosure sought went beyond the proper scope of the Commission's inquiry. The court noted that at the time the subpoenas were served the Commission's investigation of the Poughkeepsie elections had already progressed to the point that the Commission was able to issue a preliminary report citing the Poughkeepsie Town Council campaign as illustrative of the shortcomings of the Election Law's campaign finance disclosure provisions, and of the ineffectiveness of the Board of Elections in monitoring compliance with the Election Law's existing, albeit inadequate, disclosure requirements. Given the information the Commission already possessed, the court was of the opinion that more was unnecessary except for the purpose of ferreting out specific violations of law, a prosecutorial function not within the Commission's purview. The court held that, whether by subpoena or search warrant, the government's elicitation of information is subject to the Fourth Amendment's prohibition against unreasonable searches and seizures and that as the focus of government inquiry narrowed to the investigation of specific instances of wrongdoing there was an obligation on the part of the...