Opinion 95-4

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Powers and Duties (procedure for investigating possibility of civil liability arising from alleged criminal conduct)

PUBLIC OFFICERS AND EMPLOYEES -- Liability (investigation of possibility of civil liability arising from alleged criminal conduct)

COUNTY LAW, §209: A county board of supervisors generally is authorized to conduct an investigation regarding the propriety of payments made with county funds to reimburse officials upon the submission of travel vouchers and to compensate independent contractors engaged by the county, and the possible recovery in civil action of payments improperly made. The board may conduct such an investigation by issuing subpoenas, taking sworn testimony, requesting the submission of documents, and employing other reasonable methods of inquiry.

This is in reply to your letter in which you state that the county board of supervisors has become aware of allegations with respect to possible criminal conduct relating to two matters: certain travel vouchers submitted to the county by a public official who is paid with county moneys; and charges billed to the county for litigation services by a private attorney. You have requested our opinion regarding the procedure which the county board of supervisors may follow in investigating the possibility of civil liability in connection with this alleged misconduct.

County Law, §209 authorizes a county board of supervisors to conduct investigations and states as follows:

The board of supervisors is empowered to conduct an investigation into any subject matter within its jurisdiction, including the conduct and performance of official duties of any officer or employee paid from county funds and the accounting for all money or property owned by or under the control of the county ....

Section 209 further authorizes the board to delegate the power to conduct investigations to a committee of the board. In addition, the chair of the board or any member of the committee may issue a subpoena "requiring a person to attend before the board or such committee and be examined in reference to any matter within the scope of the investigation, and in a proper case to produce all books, records, papers and documents material or relevant to the investigation". Section 209 also provides that the chair or any committee member may administer the oath to any witness, and that adjournments may be taken from time to time.

Subpoenas issued pursuant to this authority are regulated by the Civil Practice Law and Rules (CPLR). Therefore, the subpoenas would be susceptible to a request to withdraw or modify, and to a motion to quash, fix conditions or modify (CPLR, §2304; see, e.g., Application of Gilchrist, 130 Misc 456, 224 NYS 210; see also Paterson v Niagara County Legislature, 59 AD2d 1062, 399 NYS2d 823, in connection with a subpoena issued under section 209 for documents already subpoenaed by a grand jury). The board or its committee may move in the supreme court, if necessary, to compel compliance with a subpoena and to punish disobedience thereof (CPLR, §2308).

It is our opinion that, as a general proposition, the propriety of payments made with county funds to reimburse officials upon the submission of travel vouchers and to compensate independent contractors engaged by the county, and the possible recovery in civil action of payments improperly made, would be matters within the county board's jurisdiction within the meaning of section 209 (see, e.g., County Law, §§210, 215[1], 369[2], 600; see also, Paterson, supra, concerning an investigation into the alleged mishandling of funds by the county treasurer's office; cf. In Re Ellis, 176 Misc 887, 28 NYS2d 988). However, the initial determination of whether the particular alleged conduct referenced in your inquiry is within the board's jurisdiction involves a review of all pertinent facts and circumstances and should be made by the board, on advice of counsel as necessary (see County Law, §501; see also Barry v City of New York, 175 Misc 712, 25 NYS2d 27, affd 261 AD 957, 27 NYS2d 425). If the board determines that the alleged conduct is a matter within its jurisdiction, the board may utilize its powers granted under section 209.

Except as referenced above, section 209 does not specify what procedures the board, or a committee of the board, may follow, and we cannot provide an all inclusive or comprehensive list of techniques available to a county board in conducting its investigation. In our opinion, however, the power to issue subpoenas and take sworn testimony necessarily implies, at a minimum, lesser powers of gathering relevant information such as by requesting submission of documents and questioning individuals without administering an oath (see 1991 Opns St Comp No. 91-2, p 5). In addition, we believe that, in general, the board or committee may employ further "comprehensive but reasonable methods" of inquiry (1 Antieau, Municipal Corporations Law, §4.07; see also Application of Gilchrist, supra).

What is a "reasonable" method of inquiry should be evaluated on a case-by-case basis, considering the particular investigation and, as appropriate, on advise of counsel. Regarding what may constitute reasonable procedures, we note that Civil Rights Law, §73 sets forth a code of fair procedure for certain state investigatory agencies defined in the statute. Among other things, section 73 contains provisions pertaining to notices to witnesses, the right of witnesses to be accompanied by counsel, and the right of witnesses to file sworn statements. Although not applicable by its own terms to a county board investigation pursuant to section 209, the county board could be guided by this code of fair procedure.

March 1, 1995
Charles E. Drake, County Attorney
County of Hamilton