Seelig v. Shepard

• Decision Date: 15 September 1991
• Citation: 578 N.Y.S.2d 965,152 Misc.2d 699
• Parties: In the Matter of the Application of Philip SEELIG, individually and as President of the Correction Officer's Benevolent Association, Inc., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Susan E. SHEPARD, as Commissioner of Investigation of the New York City Department of Investigation, New York City Department of Investigation, Michael Caruso, as Inspector General of the New York City Department of Investigation, and the City of New York, Respondents.
• Court: New York Supreme Court

Page 965

578 N.Y.S.2d 965

152 Misc.2d 699

In the Matter of the Application of Philip SEELIG individually and as President of the Correction Officer's Benevolent Association, Inc., Petitioner For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Susan E. SHEPARD, as Commissioner of Investigation of the New York City Department of Investigation, New York City Department of Investigation, Michael Caruso, as Inspector General of the New York City Department of Investigation and the City of New York, Respondents.

Supreme Court, New York County IAS Part 11.

Sept. 15, 1991.

Victor A. Kovner, Corp. Counsel, New York City, for respondents.

Philip E. Taubman, Tellerman, Paticoff & Greenberg, New York City, for petitioner.

HAROLD BAER, Jr., Justice:

Petitioner has brought on this CPLR Article 78 proceeding to obtain an order, pursuant to CPLR 2304, quashing a subpoena issued by respondent Susan E. Shepard, Commissioner of Investigation of the Department of Investigation of the City of New York ("DOI"). Respondent Michael Caruso, Inspector General of the DOI, cross-moves to compel petitioner's testimony.

Petitioner is President of the Correction Officer's Benevolent Association, Inc. ("Union"). He is on official leave from his job as a correction officer. His full time and energy are consumed in the representation of Union members on all matters arising out of their employment with the City.

The underlying brouhaha began on August 7, 1990, when a group of inmates assaulted a correction officer, Steven Narby, at the Otis Bantum Correctional Center on Rikers Island. Thereafter correction officers staged a job action, and blocked a bridge leading to Rikers Island. On August 14, 1990, a disturbance occurred at the Bantum Center, during which correction officers allegedly used force on inmates, and injuries resulted. Thereafter, the Mayor of the City of New York asked respondent Shepard to investigate the altercations that occurred on August 14 and the events that led to them. Respondent Shepard, as part of this investigation, issued to petitioner the administrative subpoena ad testificandum (commonly known as an "office subpoena") here challenged.

Petitioner was present at neither the assault on Officer Narby nor the disturbance at the Bantum Center. Prior to the job action, petitioner received telephone calls from Union members concerning their complaints about working conditions and, in particular, "the facts surrounding the brutal assault of [sic.] Correction Officer Steven Narby...." (Amended Petition, p 9) During the job action, petitioner engaged in confidential communications with Union officials and attorneys and negotiated with high-level City officials, as a result of which the job action was peacefully resolved. (Amended Petition p 20)

Given his role in the events, it is clear, petitioner argues, that DOI is seeking to question him solely in his capacity as Union leader. The questioning, he contends, would necessarily breach the zone of confidentiality that must exist between union members and their leaders, and, insofar as the interrogation touched upon negotiations, would produce a chilling effect on future labor negotiations and the associational rights of union members and would interfere with "confidential disclosures made between union officials and the City of New York...." (Amended Petition, p 21) Petitioner is neither a target nor a subject of the DOI investigation. The DOI seeks to chat with Mr. Seelig because it believes that he has relevant information on the response of the Department of Correction to the events, especially "whether, and if so when [Department] supervisors and management received information about the events being investigated." (Caruso Affd., p 21) The DOI also wants to learn what information petitioner provided to City officials in advance of the job action about the likelihood that such action would come to pass; who received that information; what response petitioner received to his warnings; and how the Department reacted to conditions that developed during the job action. (Caruso Affd., pp 22-23)

The DOI has stated clearly that it has no desire to harass petitioner or to search out a device to discipline him. Accordingly, it has committed itself to a procedure intended to protect petitioner's rights as the head of the Union. The DOI has agreed to permit counsel to be present during the exchange. Petitioner's testimony, taken under oath, will be transcribed and his counsel will be allowed to interpose objections and directions not to answer what counsel deems to be improper queries. Only after any unresolved objections are ruled upon in the appropriate forum and petitioner declines to comply with rulings would DOI contemplate disciplinary action based on petitioner's refusal to answer. (Caruso Affd., p 25) It is significant that the DOI in highlighting this procedure appears to concede that petitioner has a legitimate ground for concern. The DOI, that is, appears to recognize that petitioner should "not be required to disclose privileged communications." (Caruso Affd., p 29)

DISCUSSION

Petitioner does not have, and, as I understand him, does not even claim to have, a broad common-law privilege, an analogue of the attorney-client privilege. There is, however, plainly a need, for the benefit of society as a whole, for unions to be free to function without harassment and interference from government. Accordingly, there arises, in the context of rules regulating relations between management and labor, a species of privilege for labor union leaders. If unions are to function, leaders must be free to communicate with their members about the problems and complaints of union members without undue interference. Members must be able to have confidence that what they tell their representatives on such subjects cannot be pried out of the representatives by an over-zealous governmental agency. Union members must know and be secure in feeling that those whom they elect from among their ranks will be their spokespersons and representatives, not the unwilling agents of the employer. The union leadership councils must be free to confer among themselves, exchange views, make plans and arrive at negotiating strategies without intrusion from the organs of official power.

In City of Newburgh v. Newman, 70 A.D.2d 362, 421 N.Y.S.2d 673 (3d Dept.1979), the Appellate Division upheld a ruling by the Public Employment Relations Board that Newburgh had engaged in an improper employment practice when the Police Commissioner ordered a police officer, who was the president of a police union, to answer questions about his observations on the occasion of a meeting with one of his union members. Said the Court: "Questioning of a union official as to his observations and communications with a union member facing disciplinary proceedings, if...