Papers considered: 1. Notice of Petition dated October 18, 2023, Verified Petition of March Gallagher, dated October 18, 2023, with Exhibit A and Memorandum of Law in Support. 2. Verified Answer dated October 25, 2023, Affidavit of Jen Metzger in Opposition, dated October 25, 2023, and Memorandum of Law in Opposition. 3. Reply Affirmation of Jon E. Crain, Esq., dated October 31, 2023, and Reply Memorandum of Law. DECISION/ORDER Petitioner, March Gallagher, in her official capacity as Ulster County Comptroller, brings this proceeding pursuant to CPLR §2308(b) to compel Respondents, Jen Metzger, in her official capacity as Ulster County Executive, and the County of Ulster, to comply with a subpoena duces tecum issued by Gallagher on September 18, 2023, seeking records in conjunction with her ongoing investigation into allegations made against former Ulster County Commissioner of Finance, Burt Gulnick. Respondents oppose. BACKGROUND In or about April of 2021, Gallagher received several complaints regarding Gulnick’s conduct as Ulster County Commissioner of Finance. The complaints alleged that a credit card judgment had been entered against Gulnick and that Gulnick terminated a staff member in retaliation for that staff member’s raising concerns about an allegedly inappropriate relationship between Gulnick and a subordinate, including that Gulnick had doctored several of the subordinate’s timecards. Petitioner was able to verify, through a review of court records, that several of the subordinate’s timecards had been manually edited by Gulnick. Other allegations made against Gulnick were also verified by reviewing litigation records involving Gulnick’s alleged malfeasance. Accordingly, Gallagher commenced an investigation into Gulnick’s activities pursuant to the authority vested in the Comptroller pursuant to Ulster County Charter §C-57. Section C- 57(H) expressly authorizes the Comptroller to “conduct studies and investigations in furtherance of his or her functions and, in connection therewith, to obtain and employ professional and technical advice, appoint citizens’ committees, commissions and boards, subpoena witnesses, administer oaths, and require the production of books, papers and other evidence deemed necessary or material to such studies or investigations”. In the course of Gallagher’s investigation and pursuant to the authority provided by Section C-57(H) of the Ulster County Charter, a subpoena duces tecum was issued to Metzger seeking an investigative report prepared by the law firm of Roemer, Wallens, Gold & Mineaux, LLP, (“Roemer Wallace”) completed on behalf of Ulster County in 2021 in reference to complaints about Gulnick, as evidenced by the invoice submitted by Roemer Wallace for the work involved1. The subpoena also seeks all Corporate Compliance Hotline Issue Report Forms” from Ulster County’s Corporate Compliance complaint hotline system from January 1, 2019, to the present2. RESPONDENT’S CONTENTIONS Metzger and the County of Ulster acknowledge that Gallagher has broad authority to investigate issues relating to Ulster County finances but assert that the subpoena issued by Gallagher seeks records which are not limited to fiscal records thereby exceeding Gallagher’s authority; seeks personnel records to which a Comptroller is not entitled and seeks material which is protected by the attorney-client relationship. Metzger notes that the four years of Corporate Compliance Hotline records requested by the subpoena are not limited to the Finance Department and Former Finance Commissioner Gulnick, implicating the confidentiality of whistle-blower records. The Compliance Committee is an independent entity, tasked with ensuring the County and its business partners comply with all Federal, State, and local laws and regulations, including billing regulations for the Medicare and Medicaid programs. Pursuant to regulation, the Committee is required to ensure the confidentiality of persons reporting compliance issues, “unless the matter is subject to a disciplinary proceeding, referred to or under investigation by, MFUC, OMIG, or law enforcement, or disclosure is required during a legal proceeding, and such persons shall be protected under the required provider’s policy for non-intimidation and non-retaliation”. 18 NYCRR §521-1.4(e)(4). The Roemer Wallace investigative report is alleged to pertain to personnel matters largely outside of the Comptroller’s purview and is alleged to be protected from disclosure by the attorney-client privilege. Respondents assert that the prior County Executive provided Gallagher with a summary of the Roemer Wallens report, much of which pertains to allegations of a personnel nature and none of which revealed any mishandling or misappropriation of County finances. Accordingly, they contend that Gallagher is already aware of the findings of the Roemer Wallens report. PETITIONER’S CONTENTIONS Gallagher contends that Metzger points to no language in Charter §C-57(H) which limits Gallagher’s authority to issue the challenged subpoena. Metzger concedes that the Charter grants the Comptroller broad authority to issue subpoenas. Gallagher further contends that the language of the Charter provides that the Comptroller shall have access to all County records without exemption for personnel records. Furthermore, the subpoena does not seek records for public disclosure, that Gallagher’s office is an office of the County of Ulster which regularly handles personnel matters and is bound to protect the confidentiality of personnel information. Access to personnel records is necessary and fundamental to the Ulster County Comptroller’s duties and authorities. A ruling that Gallagher lacks authority to review personnel records would kneecap the Comptroller’s ability to exercise her statutory duties to oversee and protect the County’s finances. Gallagher contends that the subpoena is limited in scope. The Roemer Wallens report was commissioned as a direct response to her inquiries, and it provides the investigation’s findings. It is therefore reasonably related to Gallagher’s investigation. She rejects the argument that the Roemer Wallens report is protected by the attorney-client privilege, as Roemer Wallens prepared the report in their capacity as “labor counsel for the County”. As a unit of the County, the Comptroller’s Office is the “client” thus the attorney-client privilege does not apply to bar the said report from the Comptroller. Gallagher asserts that the scope of the subpoena as it relates to the Corporate Compliance Hotline reports is appropriately limited to the timeframe of potential misconduct by Gulnick and seeks only the initial complaint forms. Finally, Gallagher details her efforts to obtain the results of the Roemer Wallens investigation from both the prior County Executive and the current County Executive. Despite sending memoranda indicating that the information contained in the Roemer Wallens report was essential to Gallagher’s investigation of Gulnick, the report was never provided. One such memorandum, dated August 23, 2022, addressed to the prior County Executive, referred to a “$941,000 overpayment” which would “seem material to the taxpayer”. Nonetheless, the prior County Executive declined to provide the requested documentation. A memorandum to Metzger dated January 17, 2023, emphasized that Gallagher’s ongoing lack of access to this information “represents a serious risk to the County as it relates to internal controls”. This memorandum noted that Gallagher’s investigation into Gulnick includes his personal debt, lack of separation of duties, modification of timecards, a potentially inappropriate relationship, and identification of an unauthorized bank account. DISCUSSION/AUTHORITY OF THE COUNTY COMPTROLLER The Court of Appeals has held that, even under broad investigation statutes, an investigating authority does not have arbitrary and unbridled discretion as to the scope of her or his investigation. See, A’Hearn v. Comm. On Unlawful Practice of Law, 23 NY2d 916, 918 (1969); Carlisle v. Bennett, 268 NY 212, 217 (1935). There must be authority, relevancy, and some basis for inquisitorial action. A’Hearn, 23 NY2d at 918; cf., Matter of La Bell Creole Intl., S.A. v. Attorney-General, 10 NY2d 192, 196 (1961). Unless the subpoena calls for documents which are utterly irrelevant to any proper inquiry or its futility to uncover anything legitimate Is inevitable or obvious, the Courts will be slow to strike it down. Id. Gallagher “benefits from a presumption that she is acting in good faith”, and, thus, need only show that the documents she seeks “bear some reasonable relationship to the subject matter of a legitimate investigation”. Matter of Hogan v. Cuomo, 67 AD3d 1144, 1145-1146 (App. Div. 3 Dept., 2009). The Comptroller’s Office is established by Article IX of the Ulster County Charter. The powers and duties of the Comptroller derive from the Charter which incorporates County Law by reference. County Law §577(1)(a) provides that a county comptroller has “general superintendence over the fiscal affairs of the county”. The Ulster County Charter provides that, “[t]he Comptroller shall be the chief auditing officer of the County”. Ulster County Charter §C- 57. Under Charter §C-57(A), the Comptroller “shall…examine, audit and verify all books, records and accounts kept by the administrative units, offices and officials paid from County funds, institutions and other agencies of the County, including bond and note registers and trust accounts, and the accrual and collection of all County revenue and receipts, and for this purpose have access to all such books, records and accounts at any time except where precluded by law”. Charter Section C-57(F) provides that the Comptroller “shall…audit and certify for payment all lawful claims or charges against the County, whether for payroll or otherwise, or against funds for which the County is responsible in whole or in part”. Additionally, pursuant to Charter Section C-57(G), the Comptroller “shall” have the authority “as he or she determines necessary or appropriate” to “audit any department, program or function of County government to assess the degree to which its operation is economical, efficient or effective”. Gallagher’s authority to issue subpoenas pursuant to Charter Section C-57(H) includes the power to “require the production of books, papers and other evidence deemed necessary or material to such studies or investigations”. Gallagher has established that she has an ongoing investigation into Gulnick which, without question, involves issues related to Ulster County finances. By the clear language of Section C-57(H), the Comptroller is empowered to require the production of books, papers and other evidence which are “deemed necessary to such…investigations”. Accordingly, the challenged subpoena falls squarely within the broad authority vested in the Comptroller, as Gallagher, in her professional judgment, has determined that the information sought is necessary to her investigation of Gulnick. Metzger’s claim that the prior County Executive provided Gallagher with an Executive Summary of the Roemer Wallens investigation report, which advised that no financial wrongdoing was uncovered, is unavailing to prevent disclosure of the complete report. The Ulster County Charter provides the Comptroller, as “chief auditing authority”, (Charter §C-57), with the responsibility and authority to determine the existence or absence of financial wrongdoing independently of the County Executive. Gallagher has established that the records sought are relevant to her investigation. The Roemer Wallens report is about Gulnick, the subject of her investigation. The report was commissioned by Ulster County in response to concerns raised by Gallagher regarding Gulnick’s alleged misbehavior. The invoice submitted to Ulster County for the Roemer Wallens report indicates, among other things, that the investigation included review of “time sheets” and “Financial Analyst promotion” as well as “potential…complaint against financial deputies”. These entries on the invoice confirm the Roemer Wallens report bears a reasonable relationship to the subject matter of her legitimate investigation. Matter of Hogan v. Cuomo, supra. To the extent that the report may contain information characterized as personnel matters, this does not prevent disclosure to the Comptroller, who, as an officer of Ulster County, is obligated to protect the confidentiality of personnel records. Gallagher’s subpoena does not seek records for public disclosure. Nothing in the language of the Charter limits, restricts or prohibits access by the Comptroller to personnel records where they may be relevant to her investigation. The broad language employed in the Charter goes beyond the verification of financial records and internal controls. Cf., McCall v. Barrios-Paoli, 93 NY2d 99, 108 (1999): Matter of Town of Hempstead v. Maragos, 179 AD3d 813, 815 (App. Div. 2 Dept., 2020). Likewise, Gallagher has determined that initial reports of complaints made to the Corporate Compliance Hotline are relevant and necessary to her investigation. Gallagher’s review of the Corporate Hotline Issue Report Form establishes that complaints had been made therein about Gulnick. The subpoena seeks to determine the extent of any additional violations. Although Metzger is concerned about the public release of confidential whistleblower information, Gallagher is likewise obligated to protect such confidential information. Finally, the Roemer Wallens report is not protected from Gallagher by the attorney-client privilege. The report was commissioned by the County of Ulster in reference to complaints about Gulnick. Ulster County paid for the report. As a unit of the County, the Comptroller’s Office is the client for purposes of the attorney-client privilege. Accordingly, the Petition pursuant to CPLR §2308 is granted; and it is hereby ORDERED, that Metzger is directed to comply with the subpoena by providing to Gallagher the records sought therein no later than December 22, 2023, at 4:00P.M. This shall constitute the Decision/Order of the Court. The Court is e-filing this Decision/Order, but that does not relieve the parties from compliance with the provisions of CPLR §2220 regarding filing and entry thereof. Dated: December 19, 2023
