Temporary Commission of Investigation v. French

• Citation: 418 N.Y.S.2d 774,68 A.D.2d 681
• Parties: In the Matter of the Application of The TEMPORARY COMMISSION OF INVESTIGATION of the State of New York, Petitioner-Respondent-Appellant, To compel compliance with a subpoena duly issued and served on Joseph FRENCH, Respondent-Appellant-Respondent.
• Decision Date: 10 July 1979
• Court: New York Supreme Court Appellate Division

Page 774

418 N.Y.S.2d 774

68 A.D.2d 681

In the Matter of the Application of The TEMPORARY COMMISSION OF INVESTIGATION of the State of New York, Petitioner-Respondent-Appellant To compel compliance with a subpoena duly issued and served on Joseph FRENCH Respondent-Appellant-Respondent.

Supreme Court, Appellate Division, First Department.

July 10, 1979.

William D. Friedman, New York City, for respondent-appellant-respondent.

Barbara T. Dixon, New York City, of counsel (Risa G. Dickstein, New York City, atty.), for petitioner-respondent-appellant.

Before FEIN, J. P., and SULLIVAN, BLOOM, MARKEWICH and ROSS, JJ.

FEIN, Justice.

Respondent French appeals from an order which, with certain limitations, directed him to comply with a subpoena issued by petitioner, The Temporary Commission of Investigation of the State of New York (Commission) in conjunction with an investigation pertaining to an arbitration between the County of Nassau and Nassau County Patrolmen's Benevolent Association. The Commission cross-appeals from so much of the order limiting the scope of any inquiry to exclude questions pertaining to respondent's decision-making process and any oral communications had between respondent and his fellow arbitrators in connection with the arbitration decision dated February 24, 1978, awarding a salary increase in excess of 24%.

This proceeding was commenced to seek judicial enforcement of a subpoena issued by the Commission directing respondent French to appear and testify and to produce books, records and papers pertaining to the contract dispute between the County of Nassau and the Nassau County Patrolmen's Benevolent Association. The subpoena sets forth the scope and subject of the investigation as follows:

"Matters concerning the faithful execution and effective enforcement of the laws of the State of New York and the conduct of public officers and public employees, with particular reference to the conduct of the Nassau County's Executive Office, the Nassau County Attorney's Office, and the Nassau County Board of Supervisors, including but not limited to, the negotiation, arbitration, confirmation, and review of arbitration awards; the process by which arbitrators were and are designated, approved, regulated and made available for service by Nassau County agencies; and related matters."

Respondent French had been selected as the neutral arbitrator in a three member panel following an impasse in collective bargaining negotiations between the County of Nassau and its Patrolmen's Benevolent Association. The arbitration resulted in a binding award providing for a salary increase in excess of 24 commandered by French and the PBA appointed arbitrator as constituting a majority. Following an investigation conducted by the Commission, a subpoena was served on respondent on February 27, 1979, directing his appearance at a private hearing to be held on March 8, 1979. Two days prior to the date scheduled for the hearing, the Commission was advised that respondent would not appear. Thereupon, on March 9, 1979, petitioner brought on this proceeding by order to show cause for an order pursuant to CPLR § 2308(b) to compel respondent's compliance with the subpoena. The affidavit in support of the application by Eric A. Seiff, petitioner's chairman, alleges that the investigation stemmed from ". . . certain allegations made with respect to an arbitration award to the Patrolmen's Benevolent Association of the Police Department of the County of Nassau, Inc. . . ., an award which included in excess of a 24% Salary increase." The affidavit concludes in general fashion that the testimony of respondent is material and necessary to the investigation, relying upon the broad scope of inquiry as set forth in the subpoena.

Special Term directed respondent to comply with the subpoena, but precluded any inquiry into respondent's decision-making process and any oral communications had between respondent and his fellow arbitrators which preceded and related to the arbitration decision rendered February 24, 1978.

On the appeal, French contends that the Commission acted in excess of its authority in issuing the subpoena, relying upon the restrictions to disclosure contained in Civil Service Law § 205(4)(b). The statute provides as follows:

"(b) No member of the board or its appointees pursuant to this subdivision, including without limitation any mediator or fact-finder employed or retained by the board, shall, except as required by this article, be compelled to nor shall be voluntarily disclosed to any administrative or judicial tribunal or at the legislative hearing, held pursuant to subparagraph (iii) of paragraph (e) of subdivision three of section two hundred nine, any information relating to the resolution of a particular dispute in the course of collective negotiations acquired in the course of his official activities under this article, nor shall any reports, minutes, written communications, or other documents pertaining to such information and acquired in the course of his official activities under this article be subject to subpoena or voluntarily disclosed; except that where the information so required indicates that the person appearing or who has appeared before the board has been the victim of, or otherwise involved in, a crime, other than a criminal contempt in a case involving or growing out of a violation of this article, said members of the board and its appointees may be required to testify fully in relation thereto upon any examination, trial, or other proceeding in which the commission of such crime is the subject of inquiry."

The Commission, in its cross-appeal, contends that the statutory provision has no application here, since by its terms it only applies to the Public Employment Relations Board, its members, appointees, or any mediator or fact-finder employed or retained by the Board. It is undisputed that respondent was appointed privately by the County of Nassau and by the PBA as neutral arbitrator in connection with the resolution of their collective bargaining dispute. In the alternative, the Commission asserts that the statute would not apply to preclude The Temporary Commission from conducting a legitimate investigation within its jurisdiction, since the statutory provision extends to "any administrative or judicial tribunal". Although we do not agree with the Commission's restrictive interpretation of the statute, we need not reach this issue since we are in agreement that the statute, extending as it does only to the Public Employment Relations Board, has no application to respondent, who was privately appointed and who was neither a member nor appointee of the Board. Even were the statutory provisions applicable here, the present record is insufficient to invoke the exclusion set forth in the statute, which would require members of the Board or its appointees to testify ". . . where the information so required indicates that the person appearing or who has appeared for the board has been the victim of, or otherwise involved in, a crime . . ." On this record, there is no showing that a crime has occurred as to invoke the jurisdiction and authority of the Commission to investigate. The conclusory assertion that the Commission's inquiry stemmed from "certain allegations", without disclosure of the nature and source of such allegations is insufficient for this purpose.

Although we conclude that Civil Service Law § 205(4)(b) has no application here, this determination is not dispositive of the issues raised on the appeal. Clearly, the enabling legislation which created The Temporary State Commission of Investigation vested it with broad investigatory and subpoena powers (Unconsolidated Laws § 7502). However, there are limits within which the Commission must act. It may not proceed arbitrarily, nor in the absence of a sufficient showing that the issue or subject of investigation is both relevant and material. Over forty years ago, the Court of Appeals held in Carlisle v. Bennett, 268 N.Y. 212, 197 N.E. 220, that the Attorney General, in the course of an investigation pursuant to the provisions of the Martin Act, must exercise discretion ". . . within bounds circumscribed by a reasonable relation to the subject-matter under investigation and to the public purpose to be achieved." (Carlisle v. Bennett, supra, 268 N.Y. at 217, 197 N.E. at 222). The Court there held, "The power to require a witness to produce books and papers is necessarily limited to a 'proper case,' . . . one where the books and papers called for have some relevancy and materiality to the matter under investigation." (Carlisle v. Bennett,supra, 268 N.Y. at 217-218, 197 N.E. at 222).

Similarly, in Matter of A'Hearn v. Committee on Unlawful Practice of Law of the New York County Lawyers' Association, 23 N.Y.2d 916, 298 N.Y.S.2d 315, 246 N.E.2d 166, the Court of Appeals observed in this connection (23 N.Y.2d 918, 298 N.Y.S.2d 316, 246 N.E.2d 167):

"It is ancient law that no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered . . . There must be authority, relevancy, and some basis for inquisitorial action (cf. Matter of LaBelle Creole Int. v. Attorney-General, 10 N.Y.2d 192, 196, 219 N.Y.S.2d 1, 4, 176 N.E.2d 705, 707 and cases cited)."

In A'Hearn, the Court of Appeals affirmed this court's affirmance of the order of Special Term which denied petitioner's motion to quash a Subpoena duces tecum which had been served upon him by respondent. The subpoena directed petitioner, a nonlawyer, to...