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Subpoena duces tecum to be quashed unless former employee granted immunity

By Harvey Randall, Esq.

Subpoena duces tecum to be quashed unless former employee granted immunity

Matter of Bruce Brasky v City of New York Dept. of Investigation, 40 A.D.3d 531, Appellate Division, First Department

Bruce Brasky worked as an attorney for the New York City Department of Finance (DOF) Promoted to Director of DOF?s Real Estate unit, Brasky subsequently became the Director of the Real Estate Tax and Exemptions Policy unit within DOF?s Office of Legal Affairs.

DOF had a policy prohibiting certain outside employment. The portion of the DOF policy relevant in this instance provides:

?Employees who wish to engage in outside work in addition to their departmental employment must obtain official agency approval prior to starting such work.

?. . . no public servant shall represent private interests before any city agency or appear directly or indirectly on behalf of private interests in matters involving the city for compensation. Therefore, the following types of outside employment and outside activities will not be approved for any Finance employee: (a) Engaging in any Federal, New York State, or New York City tax-related legal . . . practice . . .?(emphasis in original).

Brasky admitted that he violated DOF?s requirement that employees obtain prior written permission before obtaining outside employment.
The New York City Department of Investigation (DOI) received an anonymous complaint alleging that Brasky was engaged in a private law practice and that he was preparing documents that were submitted to DOF on behalf of private clients.

Ultimately DOI requested that Brasky produce, ?records of all private practice legal work performed from January 1, 2003 to present, including records of compensation received for work performed.? Brasky resigned on August 16, 2005.

Subsequently DOI issued a subpoena duces tecum [a subpoena duces tecum is a command to a witness to produce documents] requiring Brasky to testify under oath and to bring with him:

?All documents including, but not limited to, lists, invoices, billing records, accounts receivable records, cash receipt journals, bank deposit records and time records reflecting, identifying or referencing, by name, all persons on whose behalf you provided legal services for the period of January 1, 2003 through July 20, 2005 . .

The subpoena also stated that

?. . . privileged matter should be identified as such and redacted from the documents or materials produced.?
Brasky filed a petition in Supreme Court in an effort to quash the subpoena and to compel DOI to give him a copy of a transcript or tape of his earlier DOI interview.

Supreme Court denied Brasky?s motion to quash the subpoena and, in addition, found that it would be against public policy to compel DOI to turn over a transcript or tape of the interview Brasky demanded as it was part of an ongoing investigation.

The Appellate Division ruled that:

DOI has the authority to issue subpoenas as part of an investigation, which authority also extends to Brasky, a former DOF employee.

DOI met the threshold of showing that the before it complaint was authentic and of sufficient substance to warrant investigation.

The materials sought by DOI pursuant to its subpoena exceed those relevant to a determination of whether Brasky?s private practice included work before the DOF.

The only portion of the subpoena relevant to DOI?s investigation of whether any of Brasky?s practice included prohibited acts is the request for ?records ? reflecting, identifying or referencing, by name, all persons on whose behalf you provided legal services for the period of January 1, 2003 through July 20, 2005?.?

Accordingly, said the court, the subpoena must be limited to demanding information relevant to DOI?s investigation of whether any of Brasky?s practice included prohibited acts is the request for ?records . . . reflecting, identifying or referencing, by name, all persons on whose behalf you provided legal services for the period of January 1, 2003 through July 20, 2005 ?.?

Noting that Brasky ?cannot be compelled to comply with even that directive, as it would violate his federal and state privilege against self-incrimination,? the Appellate Division ruled that ?Brasky?s motion should be granted to the extent of quashing the subpoena unless he is granted immunity against criminal prosecution.?

The decision points out that ?if DOI is more concerned about discovering if any of DOF?s past decisions were tainted due to Brasky?s actions, it can grant him immunity, and, with his client list, attempt to identify any transactions before DOF that were tainted or require further scrutiny.?

However, said the court, Brasky ?did not demonstrate a compelling interest sufficient to override the ?public interest privilege? that shields DOI from disclosing a tape or transcript of the June 29, 2005 interview.?

According to the ruling, DOI persuasively states that ?its purpose in maintaining a policy of non-disclosure is ?to preserve the integrity of ongoing investigations by not prematurely alerting potential subjects or possible witnesses to the full scope and nature of those investigations . . .??

Accordingly, the Appellate Division ruled that as ?Brasky is not the subject of any pending prosecution,? there is presently no basis to provide him with a copy tape or transcript of his DOI interview.

For the full text of the opinion go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/06/subpoena-duces-tecum-to-be-quashed.html

Full post as published by New York Public Personnel Law on March 24, 2008 (boomark / email).