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Subpoena Wars

The mayor and certain city council members are sparring over who has the power to do what

Daniel D'Ambrosio

August 18, 2009

On Aug. 12, Mayor Eddie Perez reached out to the city council in the "spirit of cooperation" to try to resolve the latest issue between the administration and an increasingly assertive council — the failure of some city department heads to attend council subcommittee meetings when requested.

In a letter to City Council President Calixto Torres, Perez asks Torres to notify his office of any requests of city staff to attend subcommittee meetings. Perez writes that he has directed Chief Operating Officer David Panagore to "ensure proper coverage at all regular Council meetings."

Yet on the same day he was writing to Torres, Perez was also vetoing a resolution the council passed two days earlier, on Aug. 10, to give the Operations, Management and Budget Committee subpoena power to force city finance department heads to appear before the OMB committee to discuss the 2008-09 and 2009-10 budgets.

"The Council is well aware that the action taken at the August 10th meeting is inconsistent with state law," writes Perez in his veto. "This veto protects the City, City Council and individual Council members from civil liability associated with issuing illegal subpoenas."

Councilman Pedro Segarra, who chairs the OMB Committee, says the subpoena flap is just the latest development in an ongoing power struggle between the city council and the administration. Segarra, along with Ken Kennedy, Larry Deutsch and Matt Ritter, introduced the Aug. 10 resolution that would give the OMB committee the power to subpoena department heads if necessary.

"It is indispensable that the Council receive full disclosure of City Finances and financial reports on a timely basis as well as the cooperation of its several department heads to review and discuss said finances," states the resolution.

Segarra learned of Perez's veto on Monday, and said it throws into question the new spirit of cooperation the mayor said he was embracing.

"I guess he reached out for his veto pen," said Segarra. "I think that it doesn't help anybody, let alone the city, to have this constant tug of war regarding who has what power."

With his veto, says Segarra, Perez has declared himself "judge and jury," deciding the council doesn't need subpoena power. The council would need seven of its nine members to vote in favor of overriding Perez's veto — a majority Segarra doesn't believe he can muster.

The City Council has retained its own attorney, Alan B. Taylor of Day Pitney LLP, and has asked Taylor for an opinion concerning whether or not the council can give itself subpoena power under the current city charter. Taylor, who was instrumental in creating that charter, said he expects to issue an opinion next week in a letter to the city council.

Councilman Larry Deutsch notes that the city's attorney, Corporation Counsel John Rose, has already made it clear he believes the city council cannot take on subpoena power. If Taylor comes out with the opposite opinion, says Deutsch, the city council and mayor will be in a quandary.

"My guess is it will have to go to a higher court," said Deutsch.

Segarra agrees, but says he hopes the question of subpoena power can be settled without resorting to Superior Court, unlike the debacle over Freedom of Information Act requests. The city's refusal to comply with FOI requests, says Segarra, has already cost taxpayers several hundred thousand dollars in legal fees, and several cases are still in court.

"We don't want to follow that path," he said.