Labor & Employment Law

Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker

The Suffolk County Ethics Commission issued subpoena* to compel Cheryl A. Felice, the President of a Suffolk County municipal employees union, to appear before it and give testimony relative to its investigation of services provided by a former county employee to the union on or after December of 2007.

Felice resisted the Committee?s efforts and the Commission filed a petition seeking a court order directing Felice to comply with its subpoena and appear before it with the relevant documents.

According to the decision, underlying Committee?s investigation was a sworn complaint alleging possible violations of Article XXX (Code of Ethics) of the Suffolk County Administrative Code** by a former county employee who was retained by the Felice's union of municipal employees as a consultant, strategist, employee or independent contractor.

In opposing the Committee?s action, the union argued:

1. The provisions in the Code of Ethics relied upon by the Commission are not applicable to the former county employee whom the union retained to assist it in its labor relations with the County.

2. The Commission failed to demonstrate that the subpoena is an appropriate exercise of the Commission's discretion.

3. The subpoena was procedurally deficient in that it does not appear to have been issued upon the unanimous vote of the members of the Commission as required by the Ethics Code.

4. Disclosure of the communications and documentation called for by the subpoena violates the "labor union leader privilege".

Judge Whelan rejected all of the union?s arguments and granted the Commission?s petition noting that ?It is only where the subpoena recipient demonstrates that the subpoena is not within the authority of the issuing agency or that its scope may be fairly characterized as irrelevant, illegitimate or oppressive will the recipient's challenge be sustained. In this instance, said the court, Felice has not met her burden in this regard.

Rather, said the court, the Commission has met its initial burden of demonstrating its authority for engaging in the investigation and issuance of the subject subpoena and that the materials sought have a reasonable relationship to the subject matter under investigation as well as to the public purpose to be achieved and that the investigation has a sufficient factual predicate.

As to ?the targeted former employee? not being not subject to the Committee?s reach, the issue of whether there has been a violation of the Ethic Code provision is a matter for the Commission to determine and any challenge to its ultimate determination and any challenges to the Commission?s authority are premature and beyond the scope of this ?special proceeding commenced pursuant to CPLR 2308.?

Addressing Felice?s claim that subpoena was issued pursuant to a unanimous vote of the Commission, Judge Whelan observed that ?The record contains due proof that the subpoena was duly authorized by the unanimous vote of three members of the Ethics Commission as required by §30-6(b) of the Ethics Code.?

Finally Judge Whelan rejected Felice?s argument that ?labor union leader privilege? insulates a union's leader from disclosing communications and documents that are the target of the Commission?s subpoena as they concern union strategies, proposals, alliances and positions viz a viz the County as it is currently involved in collective bargaining negotiations with the union.

The court said that ?The expansive evidentiary privilege for labor union leaders advanced by [Felice], which would immunize from disclosure, communications among union leaders and its paid staff regarding collective bargaining tactics, strategies and advice provided by such staff and other nonunion members has not been shown to be necessary to avoid the impairment of any fundamental rights of [Felice], her union, its members or its retained staff.?

In addition, Judge Whelan said that Felice did not show ?that harm would inure to the public interest by reason of the disclosure of the items called for by the subpoena and that such harm far outweighs the interests of the [Commission] who seeks such disclosure.?

* The subpoena also required Felice ?to produce any and all records and correspondence in her possession or in the possession of the union, by and between [Felice], other union officials and the former county employee, relative to the union's retention of the former county employee.?

** See §§A 30-4 and A 30-5

The decision, Matter of Suffolk County Ethics Commn. (Felice), 2010 NY Slip Op 20418, Decided on October 9, 2010, Supreme Court, Suffolk County, Judge Thomas F. Whelan, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20418.htm
NYPPL

Full post as published by New York Public Personnel Law on October 19, 2010 (boomark / email).