Requires state officer investigating a subordinate to issue, to such subordinate, a copy of any subpoena duces tecum issued to a party who is not a state employee

Summary of specific provisions

§ 61. Investigations by state officers. Every state officer, in any proceeding held before him or her, or in any investigation held by him or her for the purpose of making inquiry as to the official conduct of any subordinate officer or employee, shall have the power to issue subpoenas for and require the attendance of witnesses and the production of all books and papers relating to any matter under inquiry. All such subpoenas shall be issued under the hand and seal of the state officer holding such proceeding. A subpoena issued under this section shall be regulated by the civil practice law and rules. The testimony of witnesses in any such proceeding shall be under oath and the state officer instituting the proceeding shall have power to administer oaths. In the case of state boards or commissions, any member of the same, or, when duly authorized by resolution, the secretary of such board or commission, shall have power to issue subpoenas and administer oaths for the purposes of this section. A subpoena duces tecum issued by the state officer instituting the proceeding to a party other than a state officer or employee shall be accompanied by a court order unless the state officer issuing the subpoena serves a copy of the subpoena on the officer or employee who is the subject of the investigation at least seven days prior to the date when the subpoena requires the production of books or papers.

Justification

A State officer conducting an investigation of a subordinate has the unchecked power to unilaterally issue a subpoena requiring the production of documents, even those unrelated to the subject's official duties. As a result there are often cases, when the personal documents of state employees are subpoenaed including phone bills or bank accounts. This constitutes an unwarranted invasion of privacy when the subject of such an investigation is not even given notice that his or her private records have been disclosed. It further deprives state employees of any due process. as state officers are not required to show cause for such subpoenas. This is a unique power that is unparalleled in any other employer-employee relationship.

Public Officers Law Section 61, which grants state officers this subpoena power, is too broad and fails to provide reasonable checks on the authority of state officers. It should be amended to add due process without unduly limiting the ability to conduct an investigation. This can be accomplished by requiring that a State officer who issues a subpoena in the investigation of an employee either obtain a court order or give the employee at least seven days notice. The notice gives an employee time to object if he or she

feels the subpoena is unjustified and invades privacy. In cases where the notice is not feasible the officer has the option to obtain a court order by showing a judge sufficient reason why it is warranted.

Enacting these modest constraints on the subpoena powers of state officers will rightfully ensure that the privacy and due process of state employees is protected without improperly inhibiting an investigation.

Prior legislative history

2011-12: S.3567/A.4300 - Held in Senate Investigations & Government 2010: A.9092/S.6077A - Held in Senate Investigations & Government Operations Committee

Fiscal implications for state and local governments

None to the state.

Effective date

This act shall take effect immediately.