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Attorney Says Council Has Subpoena Power

By Jeffrey B. Cohen

September 08, 2009

Twice the city council has asked its own attorney for a second opinion on a ruling by Corporation Counsel John Rose.

And twice the council's attorney said Rose was wrong.

Earlier this summer, some on the council were frustrated by their inability to get timely budgetary information from the staff of Mayor Eddie A. Perez. The council passed a resolution giving itself the ability to subpoena both records and people -- specifically city department heads -- to its budget committee meetings. After it did, Rose wrote an opinion saying that the council didn't have that authority, and Perez vetoed the resolution.

But on Tuesday, attorney Allan Taylor said in an opinion requested by the council that Rose's "fundamental misunderstanding" of state law led him to wrongly conclude that the city council does not have subpoena power. In fact, Taylor said, state law "plainly allows" the kind of additional subpoena powers sought by the council, he said.

Rose's comment is given below.

Rose said he disagreed with Taylor's "conclusion and his analysis."

After noting that the city's charter gives the council the right to hire its own attorney "in addition to" the advice of the corporation counsel, not instead of it, Rose said that the he and Taylor should "exchange views with an eye to reconciling differences." That said, "in the end," Rose said, "the city speaks with one legal voice...and it is not that of outside counsel."

Taylor is the city council's independent attorney -- hired earlier this year after some on the council felt they had been getting bad legal advice from Rose and his office. Taylor's firm, Day Pitney, work on a question-by-question basis. Answering a question as to the mayor's ability to unilaterally spend city money was his first formal job.

A dust-up between the mayor and Councilman Pedro Segarra prompted the move by the council. Eventually, though, Perez relented -- sending Segarra and the council a letter outlining the procedure by which the council could get information and cooperation from city employees. Perez said he wrote the letter in the "spirit of cooperation."

Council President Calixto Torres declined to comment Tuesday because he hadn't yet seen Taylor's opinion. Segarra said he wasn't surprised by what he read.

"The mayor was elected to do a job and, using his words, he intends to continue to do that job," Segarra said. "I was elected to do a job, and I expect that I'm going to do that job."

"Assuming no one interferes with the other one's jobs or responsibilities, I guess there won't be an issue," Segarra said