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| Scott Stringer |
NYC comptroller sues de Blasio over coronavirus emergency purchasing powers
“The public disclosure of the requested documents involving confidential, deliberative communications among an inner circle of decisionmakers concerning an emergency response to a pandemic could chill future deliberations about pressing matters," wrote an Appellate Division, First Department panel.
A state appeals court Thursday ruled New York City Mayor de Blasio does not have to turn over information subpoenaed by City Comptroller Scott Stringer detailing nonpublic communications de Blasio and others had about the city’s planning and response to the COVID-19 pandemic.
Pointing to the common law’s public interest privilege, which attaches to certain confidential communications involving public officers, the Appellate Division, First Department court wrote that “in this particular circumstance, the interest in protecting the Mayor’s and the First Deputy Mayor’s pre-decisional and deliberative communications is stronger than the interest in allowing the Comptroller to review, and possibly publish, the communications as part of his investigation” into the city’s pandemic preparations and response.
“The public disclosure of the requested documents involving confidential, deliberative communications among an inner circle of decisionmakers concerning an emergency response to a pandemic could chill future deliberations about pressing matters, potentially to the public’s harm,” a unanimous First Department panel of four justices also wrote in a lengthy, detailed opinion.
As part of Stringer’s ongoing investigation, launched in May 2020, the comptroller is examining the financial impact on residents and businesses of the city’s March 22, 2020, stay-at-home order, as well as the impact of other city-government decisions made before and after the pandemic gripped New York, according to the comptroller’s legal petition lodged last November in Manhattan Supreme Court. Using the special-proceeding petition, Stringer has sought to force the mayor’s office to produce far more subpoenaed documents, testimony and information than it has so far, according to court documents and news reports about the comptroller office’s investigation.
Stringer, who ran unsuccessfully in the recent Democratic primary for mayor and who has been a vocal critical of de Blasio on various fronts, serves as the city’s financial watchdog. His office works to find and prevent financial fraud and waste in the city. It also watches over and records all contracts paid for by taxpayers.
The First Department panel, which on Thursday affirmed in all respects an underlying decision by Supreme Court Justice Lyle Frank’s on multiple subpoena-related issues, ruled against de Blasio and the city on their cross-petition to quash, in their entirety, all document and testimonial subpoenas served by the comptroller’s office since its May 2020 investigation began.
Frank, in his December 2020 mixed decision on the subpoena issues, had directed the mayor’s office to produce certain requested documents on a rolling basis. In addition, he had ruled that the testimonial depositions of two city witnesses should go forward, “without limits on the scope of questioning,” according to the First Department’s opinion.
The panel, composed of Justices Diane Renwick, Cynthia Kern, Anil Singh and Peter Moulton, wrote that “as an initial matter, [Frank] properly found that the Comptroller’s investigation did not exceed his authority under the [New York City] Charter” to conduct an investigation into the city’s pandemic planning and response. Charter Section 93(b) gives Stringer power to “audit and investigate all matters relating to or affecting the finances of the city, including without limitation the performance of contracts and the receipt and expenditure of city funds,” the justices added, quoting from 93(b).
The justices noted, though, that it appeared Stringer’s investigation ranged, at least partially, beyond financial issues and contract expenditures and into policy issues. But his office had that wide-ranging investigatory power under Section 93(b), as well, they said.
“The investigation appears to be a broad policy-based review of the City’s initial public health and emergency response efforts to COVID-19,” the justices wrote. “However, Section 93(b) provides the Comptroller with broad investigative authority of matters that affect City finances and does not strictly limit an investigation to only fiscal matters.”
Moreover, the justices ruled that Stringer’s “request for a privilege log and in camera review of the documents over which the City claims privilege should be made to” Frank in the ongoing Supreme Court special proceeding.
But when it came to the central issue of whether de Blasio and others he is connected to must hand over information about their communications when preparing for and responding to the pandemic, the panel was firm in knocking down the comptroller’s subpoena request.
“Given the ongoing threat of the pandemic, the Mayor and his leadership team needed access to information and unvarnished advice from all sources,” the justices said. “This required that the sources have some assurance that their advice would remain confidential and free from fear of reprisal,” they added while ruling that Justice Frank had “properly applied the public interest privilege to quash the document requests” served on de Blasio.
New York City and the mayor’s office has been represented throughout Stringer’s investigation and his office’s special proceeding commenced last November by the city’s Law Department.
In an email Thursday, Law Department spokesman Nick Paolucci said, “We are pleased the court recognized that public disclosure of certain confidential communications concerning the city’s response to the pandemic could chill future deliberations during emergencies and is not in the city’s best interest.”
Stringer’s office has been primarily represented by its general counsel’s office, headed by Neysa Alsina.
In an emailed comment on Friday, office Press Secretary Hazel Crampton-Hays said, “We are pleased the Appellate Court affirmed the Comptroller’s authority to conduct this investigation.”
“While we are disappointed with the Court’s ruling on the privilege matter,” she added, “overall the Court confirmed what we knew all along, that the Comptroller’s role as a watchdog to investigate matters involving the City’s finances is Charter-mandated, necessary, and legally protected.”
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