Matter of Jennings v New York City Council

[*1] Matter of Jennings v New York City Council 2006 NY Slip Op 50052(U) [10 Misc 3d 1073(A)] Decided on January 9, 2006 Supreme Court, New York County Stone, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 9, 2006
Supreme Court, New York County

In the Matter of the Arbitration of Allan W. Jennings, Petitioner,

against

New York City Council et. al., Respondents.



111597/05

Lewis Bart Stone, J.

On April 20, 2005, Respondent, the Council of the City of New York ("Council"), by Resolution 947 (the "Resolution"), adopted following recommendations of its standing Committee on Standards and Ethics, (the "Committee") which determined, after a hearing (the "Hearing"), that Petitioner, Allan W. Jennings, Jr., ("Jennings"), a Councilman, had maintained a hostile work environment as to two employees, by reason of sexual harassment and gender discrimination, had improperly terminated an employee in retaliation for filing a sexual harassment complaint against him and had improperly used public resources by having an employee perform certain personal services. The Resolution fined Jennings $5,000, publicly censured him, suspended him from all committee assignments, required that he participate in programs of anger management and gender, racial and harassment sensitivity training and set forth provisions to monitor his future compliance with applicable Council rules relating to discrimination, harassment and staff terminations.

On August 19, 2005, Jennings commenced this proceeding by Order to Show Cause pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"). As the action was commenced within four months of the date of the Resolution, the petition is timely. Jennings named the Council, various individual Council members, in both their individual and official capacities and the City of New York (the "City") as respondents in the petition (the "Petition"). On October 26, 2005, at a preliminary hearing on the Petition, all respondents other than the Council were dismissed as respondents, and the Petition's Caption was amended to read as above set forth. The Court found that as the Petition was commenced under CPLR Article 78 to review the Resolution as an action of the Council, the inclusion of [*2]the City and individual Council members as parties was not appropriate and it was proper to dismiss the Petition as against them and to amend the caption. The parties agreed and an order to do so was issued. Jennings also agreed at such hearing to withdraw all allegations of impropriety by Forrest Taylor, Chief of Staff to Council Speaker Miller, and equal protection violations arising from such allegations.

The remainder of the five grounds asserted by Jennings for relief in his Petition are:

1. The Hearing violated the New York Open Meetings Law, and therefore its ultimate result, the Resolution, was, under Section 107(1) of such law, void.

2. The closed meeting between the Committee and its counsel ("who also served as the "prosecutor") violated Jennings' due process rights, including his right to notice and an opportunity to be heard, his right to be present for material stages of the proceedings and his rights to equal protection of the law.

3. The Council refused to provide Jennings with medical records of two complainants, thus depriving him of a full and fair opportunity to cross examine them.

4. The Council violated its own rules by not disclosing to Jennings the transcripts of certain closed "meetings" from which Jennings was excluded.

5. The Council violated its own rules by refusing to allow Jennings to compel the testimony of investigators retained by the Council.

A "Seventh Contention," (Jennings' "Sixth Contention" having been voluntarily deleted prior to the commencement of the proceeding) sought a stay of enforcement pending resolution of his Petition. By agreement of the Council not to enforce the sanctions prior to the hearing by this Court, and by Order of this Court, at a hearing to continue the stay of enforcement pending this decision, Jennings' request in this "contention," has effectively been granted.

Responding to the Petition, the Council served its Verified Answer (the "Answer") on October 6, 2005, denying each ground and interposing the following eight affirmative defenses, viz:

1. The Petition failed to state a cause of action.

2. The Petition was barred by the doctrine of separation of powers.

3. Council Members are absolutely immune from liability under the doctrine of legislative immunity. (As individual members of the Council were dismissed as respondents on October 26, 2005, this defense is moot, and accordingly it is not addressed in this Decision and Order). [*3]

4. The Council's actions were in full compliance with applicable laws and regulations and not arbitrary and capricious.

5. Jennings did not meet his burden of proof that the Council's findings were in bad faith.

6. The Council's decision to substantiate the charges against Jennings were supported by substantial evidence on the record, and was lawful, reasonable and proper and was not arbitrary and capricious or irrational. This Sixth defense effectively states three separate defenses, one that the Council's decision was supported by substantial evidence on the record, second, that the decision was lawful and third that it was not arbitrary or capricious (the additional term "irrational" is surplusage as any irrational decision is effectively, at a minimum, arbitrary and capricious, a ground sufficient in itself to vacate a decision under CPLR Article 78). The third part of the Sixth Affirmative defense is already stated in the Fourth defense, and may be ignored as surplusage.

7. The penalties imposed were proper, within the scope of the Council's authority, and were not shocking to the conscience.

8. The Council is not a suable entity.

The Council recited in its memorandum of law that it had cross-moved to dismiss the Petition. While the Answer includes a prayer to dismiss the Petition in addition to the above affirmative defenses, no separate Cross Motion was made or did the Answer recite that it was a Cross Motion. Compounding the procedural confusion, Jennings then submitted his own "Cross Motion" on October 25, 2005 in his response to the Answer, to secure copies of portions the transcripts of the hearings before the Committee which had been submitted under seal to the Court with the understanding that the Court would initially consider whether such documents were relevant to this proceeding, before reviewing them, and determining whether Jennings had in his Cross Motion, alleged a sufficient basis to establish any right to them.

It is unnecessary to resolve in this proceeding whether the Council officially made a Cross Motion to dismiss as the Council's substantive objections and affirmative defenses, as stated and argued, have equal effect. Further, by interposing his own Cross Motion, Jennings has effectively accepted the Council's position that it had Cross-Moved, as his own Cross Motion would have been improper had they not. The Council in responding to Jennings' Cross Motion raises no procedural objections to it on the above grounds.

Subsequently, on November 14, 2004, in a hearing on this matter, Jennings [*4]withdrew his Cross-Motion, and accordingly this Decision and Order does not address such Cross-Motion.

After reviewing the submissions of the parties and hearing argument on November 28, 2005, this Court has determined to dismiss the Petition. Because the Petition is to be dismissed, the Court need not address whether the Council made an effective Cross Motion. The reasons for these determinations follow.

Initially, this Court must determine its own jurisdiction to hear this dispute. The Council, in three of its affirmative defenses raises objections to any intrusion of the Court on their actions. The first is included as a portion of the First Affirmative Defense, viz: that the Petition does not state a cause of action. The second is the Council's Second Affirmative defense that the Petition is barred by the doctrine of the separation of powers and the third is the Council's Eighth Affirmative defense that the Council is not a suable entity. These three defenses all assert a limit on this Court's jurisdiction or power to inquire into actions of the Council.

Before such issue is reached, a threshold issue of whether the Court has jurisdiction to determine whether it has jurisdiction must be addressed.

A Court of general jurisdiction, such as the Supreme Court of the State of New York always has jurisdiction at least to determine whether it has jurisdiction. It is inherent in a society of laws that the Court make such an initial determination, not the legislature nor the executive, nor an administrative agency, nor the military. By consenting to the stays issued by the Court, and by their very submission of papers, briefs and responses to this Court the Council does not challenge the Court's jurisdiction to determine its own jurisdiction. Thus, the Court, not the Council, must next determine whether the Council may be sued at all, whether the doctrine of separation of powers precludes the consideration by this Court of Jennings' petition, or whether, as a matter of law, a claim may be stated against the Council[FN1]. Accordingly, this Court may address and decide the Council's Answer and Affirmative Defenses.

The doctrine of separation of powers, a constitutional doctrine relating to the functional division of a government's sovereignty among its executive, legislature and judiciary, is inapplicable here. The City is not a sovereign entity, but a creature of the State of New York (the "State") in which full sovereignty is reposed, save that portion of the State's sovereignty which it has, by ratifying the [*5]United States Constitution, ("US Const."), delegated to the United States. See US Const., Amendment X.

The Federal doctrine of separation of powers has a broad impact on the Federal government because such doctrine is needed to balance and explicate the separate pieces of the divided sovereignty of the Federal government under the relatively skeletal US Const. The State's more detailed constitution ("NY Const.") limits in significant part the need for such analysis. The grant of powers to municipalities in NY Const. is expressly recognized as a grant, and not an inherent sovereignty arising from the people or any other source. See NY Const. Article 9, §2, granting certain powers to local governments. Further, under such section, the legislature is directed to enact a Statute of Local Governments granting additional powers, which may be withdrawn, although the withdrawal of such grant of power is made quite difficult. While NY Const. grants local governments general rights, other rights, such as the operation and the power of the State courts are reserved. NY Const., Article 9 §3(a)(2). That the City is intended to be a part and subject to these rules is made clear by NY Const. Article 9, §2(e) which, by expressly giving the City the powers of counties located in the City, subsumes their inclusion as a municipality under NY Const. Art. 9.

Thus, although certain powers are granted under NY Const. to the City, the Council's powers are derivative and not inherent. Accordingly, the "doctrine" of separation of powers is inapplicable as between this Court and the Council, notwithstanding the obligation of this Court in rendering its decision herein, to consider the proper powers and the rights expressly vested in the Council by NY Const., the Statute of Local Governments, State law, rules and regulations, the City Charter, local laws, rules and regulations adopted within the powers of the City and the rules and regulation properly adopted by the Council within their power to do so.

CPLR Art. 78 is a state statute of general applicability and therefore applies generally to the review of decisions of all public and private bodies in the state, including state agencies, state authorities, and of course, municipalities and their organs. Article 78 does not by its terms exempt the City or the Council or any other municipality or local governmental body. In fact, a principal[FN2] purpose of Article 78 is to provide an appropriate method for a Court to review the decision [*6]of such a body.

Accordingly, the Council's jurisdictional Affirmative Defenses, constituting a portion of their first affirmative defense and the entire second and eighth affirmative defenses are dismissed.

To resolve this dispute, the Court must address the merits of Jennings' assertion that the Resolution was adopted by faulty procedures of the Council and the merits of the response of the Council that Jennings had not met his burden under Article 78 to show that they were not, and that in fact they were proper.

This Court, under this Article 78 proceeding, may only address these contentions within the limited scope of the Article 78 review requested in the Petition, viz, under CPLR §7803(3), "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." While Jennings could have invoked other provisions of CPLR §7803, he did not, and accordingly, the propriety and validity of the Resolution vis a vis such other provisions is not before this Court.

Jennings' attack upon the Resolution by challenging procedures of the Council and the Committee is an appropriate basis for Court review under CPLR §7803(3). Certain of the Council's other Affirmative Defenses, however, address grounds not raised by Jennings. For example, Affirmative Defense Four, Six and Seven, assert, in part, that the Report of the Committee on the Resolution was not arbitrary or capricious (and in the case of the Sixth Affirmative defense, that they were not irrational). To the extent that these Affirmative Defenses defend against contentions not raised by the Petition, they are dismissed. Similarly, the Council's Sixth Affirmative defense is that the actions of the Committee and the Council were supported by substantial evidence on the record. While challenge to the decision of a body may be asserted on such basis for review of the body's decision under CPLR §7803(4), the Petition did not so assert, and accordingly, such portion of the Council's Sixth Affirmative defense is stricken. That Jennings has not met his burden of proof that the Council's finding were in bad faith, a portion of the Fifth Affirmative Defense, is likewise a defense asserted against a charge not raised in the Petition and is also stricken.

Similarly, the Council's Seventh Affirmative defense, that the penalties imposed were proper, within the scope of the Council's authority and were not shocking to the conscious, are again defenses to charges not asserted in the Petition and is also stricken.

The Council's remaining affirmative defenses effectively assert that the procedures of the Council and the Committee were in full compliance with the law [*7]and regulations (affirmative Defense Fourth) lawful (Affirmative Defense Sixth) and that the Petition failed to state a claim (First Affirmative Defense). They essentially dispute Jennings' affirmative contentions of impropriety in the process which led to the Resolution and the sanctions imposed on Jennings.

After reviewing the Petition's contentions of procedural impropriety, the Answer and the written submissions of the parties, this Court has determined that none of Jennings' assertions are meritorious, and that accordingly, no claim has been stated in Jennings' Petition upon which relief may be granted. As Jennings' Petition does not address the merits of the Resolution or the appropriateness of the penalties imposed on him, this decision too does not address such issues, but only those properly raised in the Petition.

Nature of the Council Proceeding

A central thrust of Jennings' Petition is that the Council's process of discipline is in the words of his Petition, "quasi criminal." From this statement, Jennings' papers segue to the use of terms clearly applicable to criminal proceedings to describe the role of participants and the process itself. These rhetorical and semiotic devices are next used in support of Jennings' attempt to import the rights of an accused in a criminal proceeding into the process of the Committee and the Council, to allow him to assert such special and more extensive rights in this civil proceeding. But repeating these charges and invoking criminal-procedure-derived terms cannot trans-substantiate the proceeding into a criminal trial.

While civil proceedings may have severe consequences, they are still civil proceeding, where the rights of the parties are limited by rules applicable thereto. As this is a civil proceeding, this Court's analysis of Jennings' claims must be made consistent with such civil standards, and not those of a criminal proceeding.

New York Open Meetings Law

Jennings asserts that the Resolution is void because it was adopted after a proceeding conducted by the Council's Committee on Standards and Ethics in violation of the New York Open Meetings Law (New York Public Offices Law ("Pub. Off. L.") Article 7, §100-111).

Under Pub. Off. L. §105(f), "upon a majority vote of its current membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject to be considered, a public body may conduct an [*8]executive session for...(f)...matters leading to the "discipline...of a particular person." The Council does not dispute that it is a public body or that the Article 7 is applicable to it, but asserts that both it and the Committee have fully complied with such Article as executive sessions were proper as the record establishes that the Committee was authorized to do so both by the Council itself and by Article 7 as the subject matter of the Committee proceeding related to questions relating to the possible discipline of Jennings, and as the Committee held a public vote to hold executive sessions before entering into such sessions.

Accordingly, this Court finds that the Hearing did not violate of Pub. Off. L. Article. 7.[FN3] Jennings' first contention is therefore rejected.

Ex Parte communication between the Committee and its counsel

The Council retained Loretta Lynch ("Lynch"), a former United States Attorney for the Eastern District of New York as special counsel ( Counsel") to aid it in conducting the Hearing.

Jennings asserts in his second contention that procedural improprieties occurred in that Lynch, who had the role of a "prosecutor," met with the Committee in the absence of Jennings or his counsel regularly as they heard evidence and formulated their report to the Council, which formed the basis for the Resolution. The Council confirms that such meetings occurred but asserts they were proper and lawful.

In criminal proceedings before a New York Court, most ex parte contacts between a prosecutor and the Court involving matters of substance would be forbidden and would constitute grounds for the reversal of a conviction. The proceeding here, however, was not a criminal proceeding. Jennings' attack on the Committee's and Council's procedures which led to the Resolution on this ground begin with this principle of criminal law, where constitutional and due process constraints generally forbid such contacts. However, no matter how painful the sanctions imposed on Jennings may have been, they are civil sanctions, and the proceeding which led to the Resolution is not a criminal proceeding.

Jennings next argues that the procedure used by the Committee followed the [*9]"model" of the New York State Administrative Procedures Act ("SAPA") save that the Committee permitted Counsel to consult and advise it ex parte, and thus, further argues that following the model, as an approved example of due process, the Council should be bound by SAPA provisions relating to ex parte contacts between it and Counsel.

Jennings' problem with this argument is that SAPA does not, by law, apply to the Council,[FN4] and that while the SAPA may represent an example of acceptable due process, it does not mean that a particular different or lesser standard may not also pass due process muster. The City, in its Charter (Chapter 45) has its own administrative procedure act, which by its express terms does not apply to the Council. NY City Charter §1041(2). Jennings presents no authority to show that APA type standards whether under SAPA or the City Charter, represent a minimum level of fairness or due process, below which no valid proceeding could be held, or that the procedural standards employed by the Council did not meet such due process "Plimsol line." Clearly, the exclusion of local governments from the applicability of SAPA, by law, and the exclusion of the Council from the City Charter indicates an intent of the State Legislature in the former case, and the City electorate[FN5] in the latter case, that other procedural modalities were permissible. Jennings concedes that except for the issue of ex parte communications, the Council effectively followed SAPA rules. However, except for rhetorical statements, Jennings presents no authority that such deviation was impermissible.

The very nature of a disciplinary proceeding by a legislative body of one of its own members or when sitting as a Court of impeachment presents unique problems of process. Legislatures or legislative committees, while empowered to conduct such proceedings, do not do so routinely. As such proceedings are fraught with political implications, and severe consequences to the target of such a proceeding, retention or designation of special counsel to guide the membership of such a body and to present the case against the target is common, most likely advisable and perhaps even necessary. [*10]

While legislators may have or develop an expertise in legislating, the rarity of a full scale disciplinary proceeding requires this special assistance of counsel, both for marshaling and presenting a case, and also for advising the body as to the legal issues and implications of the evidence and arguments of counsel. Both functions are not only natural but are desired for these proceedings.

It is also clear that the counseling function involves giving legal advice, where the traditional lawyer-client privilege attaches to ensure that the client can freely explore the issues and possibilities. Such advice will inevitably include advice on evidentiary issues raised in the proceeding. It is the dual function of the marshaler of evidence and the provision of legal advice by the same counsel that Jennings challenges, and the Council asserts is acceptable.

In appointing Lynch, the Council recognized the seriousness and uniqueness of the procedure, and in selecting a former United States Attorney, it sought to select Counsel with extensive and appropriate experience.

While Jennings presents a novel theory, and it is possible that the two functions of counsel to the Committee could theoretically be split and isolated, Jennings has presented no authority to support his position that such bifurcation is required or that the Resolution or the report of the Committee was developed through an illegal process.

It is not for this Court in an Article 78 proceeding to legislate a "best practices" rule for the Council for disciplinary proceeding but only to determine whether the "actual practice" used in the case before it violates procedural requirements of the Federal or State constitutions, law or the rules of the body itself. Jennings has made no such showing.

Another assertion in Jennings' second contention is that the meetings between Lynch and the Committee denied Jennings his right to be present for material stages of the proceeding. While Jennings has cited other authority for this contention, his authority is based on rules applicable to criminal proceedings, which this is not.

Denial of Access to Medical Records

Jennings third contention asserts that the Council, by denying him access to the medical records of two complainants' deprived him of an opportunity to cross examine them so as to attack their credibility. Both complainants had testified as to their medical conditions so as to sustain their reasons for absence or lateness from work and to establish Jennings' knowledge that they had asserted such reasons. [*11]

Jennings had requested that the Committee issue a subpoena to compel the production of the records, indicating the purpose for which they were sought. He also sought to subpoena the medical professionals seen by each complainant, ostensibly for the same purpose. In his request, Jennings cited the "Proposed Procedure for a Disciplinary Hearing" of the Committee (hereafter the "Procedure") (Petition Exhibit S), which the parties assume to have been the procedural rules effective for the Hearing.

Procedure Par. 6 accorded Jennings the right "to have defense witnesses subpoenaed by the Committee on request."

The Council, through Lynch, after consideration of Jennings' request, declined to issue its subpoenas.

In its refusal, the Council referred Jennings to CPLR §2302(a) pursuant to which "an attorney of record for a party to...an administrative proceeding" may issue a subpoena for records or for a person to testify. Jennings' counsel who represented him at the Hearing took no action to issue any such subpoena,

Lynch advised Jennings' counsel that the request for subpoenas was denied on the ground of their relevance, noting that with respect to certain records sought, the actual diagnosis was irrelevant as the issues before the committee turned on what Jennings believed the witness' condition to have been and not what it actually was. With respect to the other witness, Jennings had also sought psychiatric records for the possibility that he might find some basis for attacking her credibility, a fishing expedition which even a criminal court without some showing of some predicate basis for such inquiry would have been loathe to countenance.

While Procedure Par. 5 does not a limit the right to have defense witnesses subpoenaed by the Committee, limiting such right to those subpoenas which could produce relevant and competent witnesses is a sensible gloss. Subpoenas are an imposition on non-parties to a proceeding, and the courts are available to protect non-parties from administrative bodies gone out of control. While the Council as a body has wide leeway to subpoena relevant matter, irrelevant matters are beyond its power. Thus, interpreting Procedure Par. 6 to limit subpoenas to relevant matter is hardly revolutionary, and certainly not an arbitrary and capricious interpretation of such provision.

A body as well as a Court need and should not countenance irrelevant material being presented to it. While the fact of relevance may be at issue, and an improper ruling on such fact the basis for vacation or review of the decision reached after such a ruling to exclude has been made, the standard for review of [*12]such an evidentiary ruling here, again is under Article 78 standards.

The parties have not suggested to this Court what standard of review is to be applied in an Article 78 proceeding to an evidentiary determination made by a body.

Clearly under the structure of Article 78, error in an evidentiary ruling made by a body in the course of a proceeding before it should be subject to the most limited review of a Court. In the hierarchy of review under Article 78, matters of law determined by a body are treated under strict review standards. Conclusions adduced by the body from the evidence taken are treated with a must lesser standard, and must be sustained if not arbitrary and capricious. Deference to a body on its factual findings are even greater, where review is permitted only when there is no substantial evidence on the record, and then only by the Appellate Division. This structure indicates that evidentiary rulings of a body at a hearing should be even treated with more deference by a Court reviewing a determination of a body under Article 78.

Here, the evidentiary ruling of the Committee as to relevance was made after full consideration of Jennings' arguments, with Lynch's input. Further, because Jennings had the clear alternative to have subpoenas issued through his own counsel, a fact expressly brought to his counsel's attention, and because Jennings' counsel made no effort to issue such subpoenas, no showing of prejudice to Jennings may be shown. This Court therefore finds unsustainable Jennings' contention that this Court should set aside the determination of the Council by reason that it did not issue the requested subpoenas.

Jennings further argues that the denial of the subpoenas also deprived him of certain due process rights. Jennings' argument is again based on both the procedures and on practices of criminal courts. As the Committee's proceedings, its report to the Council and the action of the Council in adopting such report are all civil in nature, the rules and practices of the criminal courts and the criminal law do not apply. Thus, Crawford v. Washington, 511 US 36 (2004), cited by Jennings' as authority for his position that he lost his rights of confrontation, does not apply, as Crawford addresses such rights in a criminal trial to exclude hearsay evidence, under US Const. Amend. VI which by its own terms applies only "[i]n all criminal prosecutions..."

Although Jennings states "since this was a quasi criminal trial, Councilman Jennings was unconstitutionally entitled to and should have those protections normally applicable to criminal proceedings," such statement does not make it so. [*13]This is a civil matter and civil rules apply.

The Withholding of Transcripts

Jennings fourth contention is that the Committee violated the Procedures by refusing to make available to him transcripts of Committee deliberations and meetings between the Committee and Lynch and the sanctions portion of the Hearing held in executive session.

Jennings' argument is that Procedure Par. 1 which requires that "A full record of all Committee Proceedings be kept" and Procedure Par. 12 which requires that "the proceedings shall be transcribed and transcripts made available to the respondent" are to be read together to accord Jennings a right to the transcripts sought.

The Council responded claiming that deliberations are not proceedings, and accordingly, the record of deliberations were not available to Jennings.

To support this distinction, the Council notes that Procedure Par.11 provides that the accused member, his counsel and witnesses (but not "appropriate staff") must leave the room during deliberations, but also provides that the "deliberations will be recorded." The Council further asserts that advice of Lynch on matters of law, the subject matter of the Committee's meeting with Lynch are privileged.

While it would perhaps be better for the Procedures to be more precise, the Court cannot find from the language of the Procedures that the interpretation put upon then by the Committee and Lynch is not sustainable under such rules within the context of its limited Article 78 review.

It is further logical that if certain matters are to be confidential, or that if persons are to be excluded from the room during deliberations, that the record of such portions of the proceedings would be equally confidential and access to the transcript of such processes would be unavailable to those excluded. Allowing access to excluded persons would otherwise eviscerate the very confidentiality of such processes. Accordingly, to the extent confidentiality is found not to be improper, it is not an arbitrary or capricious interpretation of the Procedures to resolve any ambiguities (if they exist) to support withholding the transcripts of proceedings from Jennings.

The Procedures were adopted by the Committee, and, while they must, once adopted, guide the Committee in its procedures, their interpretation is initially for the Committee. Courts traditionally defer to bodies the interpretation of the statutes, laws and rules they are to interpret. See New York City v. Health [*14]Hospitals Corp. v. Barnette, 84 NY2d 194, 204 (1994); Matter of Lakeland v. Onondaga Water Authority, 24 NY2d 400, 407 (1969). Their duly adopted procedures are no different in this regard. Under Article 78 review, this translates into limitations on the courts' powers to vacate the action of a body where it has ignored these procedures in an arbitrary and capricious manner. Whether this Court might have differently interpreted the Procedures on its own is not relevant; the question is whether the interpretation of such Procedures to withhold the material from Jennings was an arbitrary and capricious interpretation. This Court finds no basis to make such determination. Jennings' fourth contention is rejected.

The Testimony of Investigators

Jennings' fifth contention was that the Council violated its own rules by refusing to issue subpoenas to compel the testimony of investigators hired by the Council. Jennings had initially made a demand for discovery of "all rough notes, scratch pads, tapes, videos and other medium of preservation of information whether computer based or hard copies...which resulted from their investigations." Respondent's Demand for Discovery, §20, (Petition, Ex. J). All such material in the custody of the Committee was made available to Jennings' counsel. Response to Respondent's Demand for Discovery §18, (Petition, Ex. K).

For the Hearing, Jennings sought to subpoena members of the investigation team to require them to testify at the hearing. The Committee, acting on Lynch's advice, set forth in a written memorandum to the Committee, rejected such request on the grounds that the testimony would be inadmissible for the purpose for which it was sought, that is to establish that the testimony of witnesses at the hearing was inconsistent with statements made by the witnesses to the investigators.

The issues here are similar to the issues discussed above with respect to the denial of subpoenas for medical testimony - the fact that the issue involves an evidentiary determination, the fact that Jennings' counsel could have, but did not issue his own subpoena, and the appropriate level of review in this Article 78 proceeding. For the same reasons this Court rejected Jennings' arguments with respect to the medical subpoenas, this Court rejects Jennings' fifth contention.

For the forgoing reasons, the Petition is dismissed. As the Petition is dismissed, to the extent the Council has properly made a Cross-Motion to dismiss, it is granted. As Jennings' Petition has been dismissed, all stays of enforcement of the sanctions imposed against Jennings by this Court are dissolved.

This is the Decision and Order of the Court. [*15]

DATED:JANUARY 9, 2006

NEW YORK, NEW YORK Hon. Lewis Bart Stone

Justice of the Supreme Court Footnotes

Footnote 1: This jurisdictional question is to be distinguished from whether a claim has in fact been stated, which will be addressed later in this Decision and Order.

Footnote 2: Article 78 allows for the limited review of the decisions of a body. While it allows the review under its rules for all types of public quasi-public and private bodies, its principal utilization is in the review of decisions of governmental agencies and public and municipal corporations.

Footnote 3: Note that a violation of Pub. Off. L. Art. 7 does not necessarily void a decision reached by a body in a proceeding in which such violation occurred. Under Pub. Off. L. §107(a), such an action would only be voidable, in the discretion of the Court, "upon good cause shown." As this Court has found no violation, it need not address whether Jennings had established sufficient good cause to void the action or whether this Court should (or must) exercise its discretion upon such a showing.

Footnote 4: SAPA applies, by its terms, only to a "department, board, bureau, commission, division, office, council, committee or officer of the state, or a public benefit corporation or public authority at least one of whose members are appointed by the governor," except for certain specified persons in such categories. SAPA §102(1).

Footnote 5: City Charter provisions adding the City Administrative Procedure Act (City Charter c.45) were adopted by referendum of the City electorate at the General Election of November 8, 1988.