Senate Bill S819

                                BILL NUMBER:S819

TITLE OF BILL:
An act
to amend the public officers law, in relation to investigation of state
officers and employees

PURPOSE OR GENERAL IDEA OF BILL:
Establishes procedure for the issuance of a subpoena duces tecum by a
state officer in an investigation of 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.