175 Misc. 937 | N.Y. Sup. Ct. | 1940
This motion is to punish the president of the civil service commission for contempt in refusing to be sworn and testify before a subcommittee of a special committee of the city council of the city of New York. He had been served with a subpoena dated September 27, 1940. His refusal to be sworn as a witness resulted in this application, pursuant to the provisions of section 406 of the Civil Practice Act. The facts are not in dispute. There was an original resolution of the city council
“ Further resolved that each member of the said committee be deemed and is hereby appointed a sub-committee of one, such sub-committee being hereby authorized to attend, examine and take the testimony under oath of witnesses at private examinations during the course of said investigation, and at continuances thereof, in preparation for public hearings. The presence of any such sub-committee at any such examination shall be deemed the presence of the said Committee or a quorum thereof, except, however, that such sub-committee shall have no power to punish for contempt or to take any other action except to note defaults, if any, in attendance of witnesses, grant or refuse continuances and to report or make recommendations to the Committee as a whole.”
The only matters for determination are the points raised by the respondent in resisting the efforts of the committee to have him testify. In opposition to this motion it is urged that the subpoena is void since the Legislature has set up a complete system for the administration of the civil service system and that there is no authority in the council to investigate the civil service commission. That claim may be proper in so far as it relates to any interference with the merit system itself. Such an investigation would not be part of the council's functions. But beyond that, the city council has the right to legislate upon any number of matters affecting the health, safety and welfare of civil service employees. Then, too, under the New York City Charter, it has the right to initiate a referendum seeking to change the membership of the municipal civil service commission. With such powers existing in the council, it is evident that the investigation is properly authorized and that the subpoena is valid and must be obeyed unless the several points urged by the respondent have merit.
The respondent urges that a single member of the special committee appointed by the city council to conduct the investigation may not exercise the powers conferred upon the whole committee, although the council itself expressly vested each member of the committee with the authority of the entire committee. In considering this claim it may be said that section 43 of the Chartér expressly authorizes the council from time to time to appoint
There is no merit to the objection that private hearings may not legally be held. The only authority on the subject which is referred to in the briefs submitted by both sides is Matter of Leach (supra) in which three of the justices of the Appellate Division
It would seem that the easiest way to defeat or circumvent an investigation would be to compel an open hearing of each and every step in the investigation. This could never have been intended for if it were necessary to hold all hearings of an investigation in public the proceedings would be so hampered as to practically defeat the purpose of any investigation. To have an investigation under those circumstances would necessarily be a waste of public funds. Moreover, there is another basic reason why the preliminary investigation by the subcommittee should be private. Often, wild and reckless charges, without foundation, are made, sometimes involving public officials who are guiltless of wrongdoing. These baseless charges are not to be acted upon, and surely they should not be aired in public to the detriment of the faithful servants of the city. Public officials need not fear any private investigation, particularly where the officials will have the opportunity of a public hearing before the committee. The advance made in public investigations in recent years would be thrown back a quarter of a century if the respondent’s contention were sustained. So zealous were the people to see to it that public officials testified at the secret hearings of grand juries that the Constitution was amended to provide that these officials should forfeit their office if they did not sign a waiver of immunity.(State Const, art. 1, § 6; Canteline v. McClellan, 282 N. Y. 166.) Free speech is not in any way hampered or interfered with by
The next claim of the respondent to be considered is that the resolution of the city council authorizing the investigation was beyond its power, since the purpose of the inquiry stated in the resolution was not to bring about remedial legislation, but solely to lay the foundation for a petition to the mayor by the council, calling for the removal of administrative officials.
Without taking into consideration the provisions of the Charter, there might be some doubt as to the power of the city council to hold an investigation which did not have as part of the resolution some appropriate legislative action to be taken as a result of any disclosures. (People ex rel. McDonald v. Keeler, 99 N. Y. 463, 486; Kilbourne v. Thompson, 103 U. S. 168; McGrain v. Daugherty, 273 id. 135; People ex rel. Sabold v. Webb, 5 N. Y. Supp. 855.) If the resolution in this case had been silent, the investigation would be proper because the council undoubtedly possesses the power to take action by adopting appropriate remedial legislation. Here, however, the resolution provided for action in the form of a petition to the mayor for removal. Such a right to petition does not require the action of the city council as such, but is something that may be exercised by any individual citizen.
It would thus appear that, without any other charter provision, there might be some question as to whether such a resolution would sustain this investigation. However, in this situation there is an express charter provision which authorizes the investigation, irrespective of the wording of the resolution. (N. Y. City Charter, § 43.) Any matters relating to the property, affairs or government of the city may be inquired into. The statutory authority for this investigation does not need any particular wording in the resolution. Where there is an express provision which confers upon a legislative body the power of investigation, it has the power to authorize an investigation, as here, of the affairs of the municipal civil service commission with the sole restriction that the investigation does not in any way violate the Civil Service Law. Certainly the removal of any individual commissioner or commissioners could not violate that law or the provisions of the State Constitution.