Posted by: Patricia Salkin | July 15, 2009

Member of the Public May Be Subpoenaed for Misrepresenting Public Official’s Statement Before Landmark Commission

 

In a case this blog has been following since the appellate decision was issued a year ago, the New York Court of Appeals recently upheld the City of New York Department of Investigation’s authority to subpoena private citizens during an investigation regarding a public hearing before the City Landmarks Commission.  

Virginia Parkhouse, a volunteer with a Manhattan architectural preservation group called Landmark West!, attended an October 2006 public hearing held by the Landmarks Preservation Commission to determine whether to give landmark status to the Dakota Stables and New York Cab Company Stables on the Upper West Side. She signed in as a representative of Landmark West!, but when it came her turn to speak, she said, “I’m volunteering today to read the statement of Borough President Scott Stringer.” She then read from a letter Stringer sent to the Commission two months earlier, in which Stringer discussed the architectural significance and historical importance of the stables. He had written, “Both are historic fixtures of Manhattan’s Upper West Side and should be preserved…. I ask that you move to calender these two buildings [for public hearing] and protect an important part of the history of the development of the Upper West Side.” Parkhouse omitted Stringer’s requests to calendar the matter, which the Commission had done, and added a phrase to the last quoted sentence asking it to “landmark these buildings.” She then submitted a copy of the letter with her handwritten changes. Stringer had not authorized Parkhouse to represent him and he had apparently changed his mind about preserving one of the stables, after learning it had been partially demolished. His counsel wrote to the Commission that Parkhouse did not have Stringer’s permission to present his views or alter his letter. The counsel said, “Such conduct is highly inappropriate and, if pursued with the intent to mislead, a potential violation of [Penal Law190.25] proscribing criminal impersonation, an offense that includes acting with intent to cause another to rely upon pretended official authority.” The Commission filed a complaint against Parkhouse with the City’s Department of Investigation (DOI), saying she had misrepresented Stringer’s letter. The DOI began an investigation and subpoenaed Parkhouse to testify about the matter.

Additionally, a second member of Landmark West!, Lindsay Miller, also attended the meeting and signed in as a representative of Assembly Member Linda Rosenthal. Assembly Member Rosenthal later asserted, without contradiction, that she never authorized Ms. Miller to represent her. Further, the Assembly Member said she sent a member of her own staff to testify, but that person was not allowed to do so because the LPC limits each organization to one speaker, and Ms. Miller had usurped the slot.

Parkhouse refused to comply with the Department’s subpoena, arguing that the Department could not subpoena private citizens and that it violated her right to free speech.  The appellate court concluded DOI’s “investigation is not aimed at the content of petitioner’s speech…. Here, DOI is examining [the Landmarks Commission’s] procedures, which, as they stand, could allow citizens to misrepresent their affiliations with public officials or other groups and undermine the legitimacy and efficacy of the public hearing process.” It said Parkhouse “does not have a constitutionally protected right to disseminate false information in a public forum….” Even if the investigation were aimed at the words she spoke at the hearing, the court said, “it is motivated by a permissible content-neutral purpose…, namely to investigate and recommend changes to [the Commission’s] current practices and procedures.”  

Parkhouse maintained that, “Using the machinery of government to compel a citizen to explain her testimony at a public hearing is a direct violation of her constitutional rights.” She appealed to the State high court, contending that DOI’s investigation of the Commission’s procedures “is pretext for threatening criminal sanctions against [her] for her inadvertent exposure of the Borough President’s reversal of position.” Even if she had claimed to speak for him or deliberately misrepresented his position, she says, “It is not the role of government to police ‘false doctrine.’ That object is left to the natural process of free speech to correct itself in the marketplace of ideas….”

The Court of Appeals said, “We recognize the importance of protecting citizens who speak publicly to their government from intrusion and harassment that may result from official displeasure with what they say. In this case, therefore, we apply with special stringency the general rule that an investigative subpoena will be upheld only where sufficient facts are shown to justify the inquiry. We nevertheless hold that DOI has made a sufficient showing here, and that its subpoena is valid.” The Court noted that the DOI seeks to question Parkhouse about Miller’s alleged deceptive conduct in signing in as a representative of the Assemblywoman, and about Parkhouse’s own conduct in “misreading” the letter from the Borough President. The Court seemed troubled that when each organization was limited to just one speaker, Landmark West! Got two, and the Assembly Member was precluded from participation, and indicated that this type of manipulation of the process is within the jurisdiction of the DOI to investigate. Specifically, the Court noted that the DOI could inquire of Parkhouse whether she knew that Miller was going to sign in for the hearing the representative capacity and whether they had discussed this course of conduct in advance. The Court was troubled with DOI’s investigation into Parkhouse’s own conduct since it disagreed with the appellate court and found that in essence the DOI was investigating the content of Parkhouse’s speech. What tipped the scale in terms of the Court’s approval of the subpeona, was that Parkhouse did not claim to be summarizing a letter, rather she claimed to be reading a letter verbatim, which she did not do. In affirming the decision below the Court said, “We cannot say that DOI is forbidden to investigate what seems to have been a knowlingly false statement of fact to a city agency, even one made at a public hearing. ‘Spreading false information in and of itself carries no First Amendment credentials.'” [citations omitted]
 

Parkhouse v. Stringer, 2009 WL 1789128 (NY 6/25/2009).

The opinion can be accessed at: http://www.courts.state.ny.us/CTAPPS/decisions/2009/jun09/111opn09.pdf


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