People v. Doe

• Decision Date: 31 December 1981
• Parties: The PEOPLE, etc., Appellant, v. John DOE, Respondent. The PEOPLE, etc., Appellant, v. Lou V. TEMPERA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 768

445 N.Y.S.2d 768

84 A.D.2d 182

The PEOPLE, etc., Appellant, v. John DOE, Respondent.

The PEOPLE, etc., Appellant, v. Lou V. TEMPERA, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1981.

Patrick Henry, Dist. Atty., Riverhead (Steve Fondulis and Mark D. Cohen, Asst. Dist. Attys., of counsel), for appellant.

Stephen P. Scaring, Mineola, for respondent Tempera.

David J. Gilmartin, County Atty., Hauppauge (Eugene R. Kelley, Hauppauge, of counsel), for respondent Board of Public Disclosure.

Before TITONE, J. P., and RABIN, GULOTTA, MARGETT and O'CONNOR, JJ.

MARGETT, Justice.

Our primary task upon this appeal is to determine whether either the Suffolk County Financial Disclosure Law (the Disclosure Law), ¹ the Fourth Amendment to the Constitution of the United States or the common law "public interest privilege" provides a proper basis for quashing a duly issued Grand Jury subpoena duces tecum which demands the production of financial disclosure statements allegedly filed with the Suffolk County Board of Public Disclosure (the board) by a Suffolk County public official pursuant to the Disclosure Law. Our conclusion is that under the circumstances presented here, neither the Disclosure Law, the Fourth Amendment, nor the public interest privilege may be properly relied upon to shield such statements from production before the Grand Jury in compliance with its subpoena duces tecum. Since we perceive no other reason to quash the subpoena in question, we reverse the order of the County Court, 110 Misc.2d 595, 442 N.Y.S.2d 734, and deny the motions to quash made by the board and the public official.

Since the Disclosure Law is of central importance to this appeal, close attention to its terms is warranted. Enacted in 1978, the law declares in section 2 that it is the policy of Suffolk County:

"(1) To insure to the citizens of Suffolk County a county government that is administered free from any conflicts of interest by employees who affect the integrity of the county government;

"(2) To recognize that the citizens of Suffolk County are entitled to a high standard of candor from their public servants;

"(3) To provide a means by which those County employees may disclose those aspects of their business and personal affairs, which, even though they may not relate to the specific duties of the county employee, that reflect upon the integrity of the county government;

"(4) To discourage and detect corruption and the appearance of corruption;

"(5) To instill in the public a sense of confidence and integrity and partiality of its public servants."

In furtherance of this policy, the law requires all employees of the County who are elected County officials, department heads, chief deputy department heads or "exempt personnel graded 32 and above" (§ 4, subd. to file annually with the Board of Public Disclosure ² a completed "Financial Disclosure Statement". The precise form of this statement is also prescribed by the law. As so prescribed, the statement is approximately 10 pages in length, and requests that employees list and describe their assets, liabilities and sources of income and those of their spouses by filling in blanks in response to specific requests stated within the form. The form states that the disclosure statement is submitted "under oath". It bears an "Attestation" at the end by which the employee is to certify by his or her signature that "to the best of knowledge" the statement is "true, correct and complete". A jurat appears below the signature line of the Attestation.

The law requires the board to "review all filed statements to determine whether a conflict of interest or impropriety exists between the public duties of the employee and his private activities" (§ 6, subd. It is silent with respect to when or how often this review is to occur, or what kind of investigation, if any, is to precede the making of the board's determination.

The Disclosure Law further provides that an employee's continued refusal to file a statement or his filing of a fraudulent statement "shall be deemed a misconduct of office" and shall be grounds for dismissal or removal (§ 10, subd. In addition, it contains the following provision with respect to criminal penalties.

"Criminal. If any employee files a statement with the intent to deceive, intentionally misrepresent, or to otherwise fraudulently answer any question set forth in the statement, or to intentionally withhold any information asked or demanded in the statement, and if such deception or misrepresentation is found to be both intentional and material as defined in section 4(7) herein, then such employee shall, upon conviction, be guilty of a Class B Misdemeanor, punishable by a fine of not more than Five Hundred ($500.00) Dollars or imprisonment of not more than three (3) months or both. In all criminal proceedings, the Board, through a designated representative, shall act as the complaining witness." (§ 10, subd. [b].)

The law also contains confidentiality provisions which, by their terms, severely restrict disclosure of the financial statement of any employee who does not consent thereto. Thus, section 3 of the law states the following as one of its four "legislative findings":

"(4) All information obtained by the Board as hereinafter created, and not made public pursuant to this law, shall be considered confidential and any disclosure shall be an unwarranted invasion of personal privacy under the meaning of the Freedom of Information Law." ³

An employee may waive his right to the confidentiality of his statement and authorize the board to file the statement with the Clerk of the Suffolk County Legislature, in which case the statement becomes "a matter of public record" (§ 7). However, if there has been no such waiver, under section 6 (subd. the board may make public an employee's statement or portions thereof only under the following circumstances:

"Where the Board deems a conflict of interest or other impropriety adversely reflecting on the integrity of the county government does exist, and, if, in the sole opinion of the majority of the entire membership of the Board, such conflict warrants a public disclosure, the Board shall cause and direct only the relevant portions of the statement of the particular employee to be filed with the Clerk and the filing thereof shall constitute a public record to be made available to anyone who makes application to examine such record."

Prior to any filing of a statement with the Clerk, the board must state in writing its reasons for making a statement public and must afford the affected employee 21 days within which to respond to the board's stated reasons for public disclosure (§ 6, subd. The board may, "in its discretion", apparently at any time and whether or not in reaction to an employee's response, rescind or modify its initial decision to disclose by a two-thirds vote of its membership (§ 6, subd. Pending the receipt of a response of an employee and the final decision of the board, the board "shall not disclose any information to the Clerk or the public" (§ 6, subd. [g]).

The law also provides that it shall be a "violation of the law" for a board member or other person to disclose any information contained on a disclosure statement "except as authorized by this local law." The violation of law is punishable by a fine of not more than $250, imprisonment of not more than 10 days, or both (§ 11).

The Disclosure Law was drawn into this case in the following way. Early in 1981, a Grand Jury impaneled in Suffolk County commenced an investigation into the facts and circumstances surrounding transactions between certain vendors and consultants and the Suffolk County Department of Labor. On or about May 11, 1981, the Grand Jury called as a witness respondent Lou V. Tempera, the Commissioner of that Department and, as such, its chief executive officer. Tempera testified without having waived immunity. By so testifying, he automatically received "transactional" immunity with respect to the subjects of his responsive testimony, but not with respect to the crimes of perjury and contempt (CPL 50.10, subd. 1; 190.40, subd. 2). On May 21, 1981, as a result of his testimony before it, the Grand Jury indicted Tempera on 11 counts of perjury in the first degree. The indictment alleged, among other things, that Tempera had given perjurious testimony before the Grand Jury in denying that he had ever received "cash money" from anyone employed by, having an interest in, or representing an entity doing business with the Department of Labor or from any vendor or consultant with whom he had personally negotiated a contract between the vendor or consultant and the department. It also alleged that Tempera had committed perjury when he had denied that he had ever received "cash money" in excess of $10,000 in connection with the awarding of any "summer program" administered by the Suffolk County Department of Labor. Five other counts alleged Tempera's perjurious denial of his receipt of certain cash moneys "or about and between 1972 and 1978".

About one week after the Grand Jury had indicted Tempera for perjury, a subpoena duces tecum was served on its behalf upon the Suffolk County Board of Public Disclosure. ⁴ The subpoena demanded the production by the board of any financial disclosure statements that Tempera had filed with it "for the period of 1975 to present." In response, the board ⁵ moved to quash the subpoena, primarily on the ground that compliance therewith was barred by the confidentiality provisions of the Disclosure Law. More specifically, it was the position of the board that its records "have no relationship to criminal proceedings unless so determined by There was no allegation by the board that it had reviewed the subpoenaed documents or that, upon such review, it had determined that no "conflict of interest or other impropriety adversely reflecting on the integrity of the county...