Can a New York city subpoena documents and witnesses from local nonprofits that don't do business with the city, when the city is investigating something like sex-offender treatment?

Plain-English summary

The Binghamton common council was considering issuing subpoenas to local nonprofit organizations to investigate the treatment of sex offenders in the city. The nonprofits had no significant financial or contractual relationship with the city, which made the obvious source of subpoena authority (investigating the city's own business with a contractor) inapplicable. The Corporation Counsel asked the AG two questions: (1) does the city have authority to issue subpoenas to non-city entities at all, and (2) if so, can a majority of the common council exercise that power?

The AG answered yes to both, with structural caveats.

Source of subpoena authority. Second Class Cities Law § 40 lets the common council issue subpoenas in investigations of city officers and departments. That did not fit Binghamton's nonprofit investigation. The relevant authority was General City Law § 20(21), which empowers every city, subject to constitution and general laws, "[t]o investigate and inquire into all matters of concern to the city or its inhabitants, and to require and enforce by subpoena the attendance of witnesses at such investigations." That statute does not limit subpoenas to entities with a city contract or financial relationship.

Matters of concern to the city or its inhabitants. The AG walked through case law showing that "matter of concern" is broader than a financial nexus. A city can subpoena to gather information to decide whether to enact local legislation (Frank v. Balog, 1947). It can subpoena a milk distributor when milk distribution is "of major importance to the health and well-being of the people of the city" (Dairymen's League, 1948). It can subpoena a nonprofit when the city is investigating both the use of city funds and the spread of doctrines deemed dangerous to civic life (Fuentes v. Fishel, 1964). The AG noted that in a contemporaneous Binghamton-related proceeding, Matter of Massar (Sup. Ct. Broome County 2007), the court had acknowledged that sex-offender treatment was a matter of public concern, even while quashing subpoenas issued by an individual council member acting alone.

Subpoenas duces tecum. Section 20(21) explicitly authorizes subpoenas for witnesses but is silent on documents. The AG read that authority to include subpoenas duces tecum where necessary to make the witness-subpoena power effective, citing New York World's Fair 1964-1965 Corp. v. Beame and Kilgallon v. City Council of Troy. The reasoning is functional: a bare witness subpoena without document authority would be useless for serious investigation.

Who exercises the power. General City Law § 23 directs that the powers granted by article 2-A of the General City Law are to be exercised by the officer or body "vested with such powers by any other provision of law or ordinance." If no other law or ordinance designates the body, the common council can adopt an ordinance designating itself. The implication is that a council cannot issue subpoenas without first taking that ordinance-level step. Matter of Massar makes this point: an individual council member acting without the council's ordinance-level authorization cannot issue a binding subpoena.

Voting threshold. Once the council is the designated body, General Construction Law § 41 governs how it acts. When three or more public officers are given a power, they must exercise it by "not less than a majority of the whole number." "Whole number" means total seats, ignoring vacancies and disqualifications. So a council majority of the whole, not just of those present and voting, is needed to issue a subpoena under the city's § 20(21) power.

Limits. The AG flagged several grounds on which a particular subpoena could still be challenged: harassment, requests that are not reasonably related to the subject matter, public-policy interference with state agencies, and possibly geographic-area limits. The opinion does not validate any specific Binghamton subpoena; it sets out the framework.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does the city need to allege wrongdoing to issue a subpoena?
No. The investigation can be informational, including to decide whether to enact local legislation. Frank v. Balog makes that point. The investigation does have to be on a matter of concern to the city or its inhabitants.

Can a single council member issue a subpoena?
No, based on Matter of Massar. The council as a body, by majority of the whole, exercises the power, and only after an ordinance designates the council as the body holding it.

Does a nonprofit have to comply with the subpoena?
Generally yes, if the subpoena was validly issued. The recipient can move to quash on familiar grounds: lack of authority, overbreadth, harassment, irrelevance to the investigation's stated purpose, privilege.

Does this apply to towns and villages?
The opinion is about cities under the General City Law. Town and village subpoena authority sits in their own statutes (Town Law, Village Law) and would have to be analyzed separately. Town boards have investigation powers under Town Law § 64-a, for example.

Can the council compel state agencies to comply?
The AG flagged that subpoenas issued by local officials to state agencies have been held unenforceable as unauthorized interference with state policy (Board of Education of New York v. Goldin, Grills v. Giambra). Local-versus-state subpoena fights are a separate doctrine.

Background and statutory framework

New York cities have two principal sources of subpoena authority. Second Class Cities Law § 40 lets the common council investigate city officers and departments and issue subpoenas for that purpose. General City Law § 20(21) authorizes broader investigation into "matters of concern to the city or its inhabitants," with witness-subpoena enforcement. General City Law § 20(23) gives cities the "necessary and proper" power to carry out their other powers, which courts have used to extend witness-subpoena authority to documents.

General City Law § 23 in Article 2-A sets up the framework for who exercises article 2-A powers. The common council can adopt an ordinance designating itself. The 2007 opinion's important practical point is that the ordinance must precede the subpoena: the council cannot just vote one day to issue a subpoena without earlier setting up its own authority.

General Construction Law § 41 is the body-acts-by-majority-of-the-whole rule. It applies to city common councils. The vote threshold is calculated against the total number of council seats, not the seats currently filled.

The case law on what counts as a "matter of concern" is broad. Public-health, criminal-justice, and major commerce-affecting-the-public matters have all been recognized. The 2007 opinion accepts (with no contrary conclusion) that sex-offender treatment is within that category.

Citations

• Second Class Cities Law § 40 (common council subpoena in investigating city officers/departments).
• General City Law § 20, § 20(21), § 20(23) (city's general investigative and subpoena powers); Article 2-A; § 23, § 23(1), § 23(2) (who exercises the power).
• General Construction Law § 41 (three-or-more officers must act by majority of the whole); § 110 (applicability rule).
• New York World's Fair 1964-1965 Corp. v. Beame, 22 A.D.2d 611 (1st Dep't), aff'd, 16 N.Y.2d 570 (1965) (financial-relationship subpoena and subpoena duces tecum).
• Matter of Edge Ho Holding Corp., 256 N.Y. 374 (1931); Matter of Hirshfield, 228 N.Y. 346 (1920) (subpoenas to non-city entities in investigations of city departments).
• Frank v. Balog, 189 Misc. 1016 (Sup. Ct. Westch. County), aff'd, 272 A.D. 941 (2d Dep't 1947) (investigation for legislative purposes).
• Dairymen's League Coop. Ass'n v. Murtagh, 274 A.D. 591 (1st Dep't 1948), aff'd, 299 N.Y. 634 (1949) (milk-distribution subpoena upheld on public-interest grounds).
• Fuentes v. Fishel, 44 Misc. 2d 943 (Sup. Ct. N.Y. County 1964) (nonprofit subpoena upheld on matters of city concern).
• Matter of Massar, 2007 N.Y. Misc. LEXIS 6159 (Sup. Ct. Broome County, Aug. 30, 2007) (subpoenas issued by individual council member not authorized; subject of sex-offender housing/treatment is a matter of public concern).
• Kilgallon v. City Council of Troy, 53 A.D.2d 976 (3d Dep't 1976) (council legislative subpoena for documents).
• Myerson v. Lentini Bros. Moving & Storage Co., 33 N.Y.2d 250, 256 (1973) (grounds to challenge non-judicial subpoena).
• Baker/Beech-Nut Corp. v. Wieloszynski, 89 Misc. 2d 256 (Sup. Ct. Onondaga County 1976) and Ruskin v. Brenner, 60 Misc. 2d 545 (Sup. Ct. N.Y. County), aff'd, 33 A.D.2d 659 (1st Dep't 1969) (geographic scope of subpoena authority, with split outcomes).
• Board of Education of New York v. Goldin, 94 Misc. 2d 574 (Sup. Ct. Kings County 1978), aff'd, 72 A.D.2d 603 (2d Dep't 1979); Grills v. Giambra, 114 Misc. 2d 571 (Sup. Ct. Erie County 1982) (local subpoenas to state agencies may be unenforceable).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2007-9_pw.pdf

Original opinion text

Second Class Cities Law § 40; General City Law §§ 20, 20(21), 20(23), 23, 23(1), 23(2), Article 2-A; General Construction Law §§ 41, 110

A city's authority to issue subpoenas for the testimony of witnesses may extend to non-city entities in the course of the city's investigation into matters of concern to the city or its inhabitants. In at least some circumstances, this authority encompasses the authority to subpoena documents. In the absence of other law providing otherwise, this authority may be exercised by the common council by a vote of a majority of the whole council, if the council has previously adopted an ordinance designating itself as the official body vested with this power.

December 17, 2007

Kenneth J. Frank
Corporation Counsel
City of Binghamton
City Hall
Government Plaza
Binghamton, New York 13901-3776

Informal Opinion No. 2007-9

Dear Mr. Frank:

You have requested an opinion regarding whether a majority of the common council is authorized to issue subpoenas to local not-for-profit corporations that have an insignificant or no financial or contractual relationship with the City. You have explained that the common council is considering issuing subpoenas to local not-for-profit corporations to obtain information regarding the treatment of sex offenders in the City.

Your inquiry presents two distinct legal questions: first, whether the City may issue subpoenas to not-for-profit corporations that do not relate to business these corporations have with the City, and second, if so, whether a majority of the common council can exercise this power. As explained more fully below, we are of the opinion that the City may under some circumstances issue subpoenas to non-City entities; that the common council may grant itself the authority to investigate and issue subpoenas; and that this power, if embodied in the common council, must be exercised by an act of a majority of the whole common council unless a different voting strength is provided by other law.

Analysis

It appears from your letter that the subpoenas would not be issued in the course of an investigation of city employees or departments. Therefore, the authority to issue subpoenas granted the common council by Second Class Cities Law § 40, authorizing the common council to investigate city officers and departments and issue subpoenas for that purpose, is inapplicable. We note that a subpoena issued to a non-city entity under this authority may be valid if issued in the course of an investigation of city employees or departments. See Matter of Edge Ho Holding Corp., 256 N.Y. 374 (1931) (upholding subpoena issued by city commissioner of accounts to non-city entity in commissioner's investigation into city departments' methods of condemning real property); Matter of Hirshfield, 228 N.Y. 346 (1920) (upholding subpoena issued by city commissioner of accounts to non-city individual in commissioner's investigation into accounts of the department of taxes and assessments).

Authority for the City to issue subpoenas is also conferred by General City Law § 20. Relevant to the question you pose, that statute provides that, "[s]ubject to the constitution and general laws of this state, every city is empowered . . . [t]o investigate and inquire into all matters of concern to the city or its inhabitants, and to require and enforce by subpoena the attendance of witnesses at such investigations." General City Law § 20(21). Thus, that section authorizes the city to issue subpoenas only in the course of investigating a "matter of concern to the city or its inhabitants."

A matter is ordinarily "of concern to the city or its inhabitants" when the City has a financial or contractual relationship with the subject of the subpoena. For example, in New York World's Fair 1964-1965 Corp. v. Beame, 22 A.D.2d 611 (1st Dep't), aff'd, 16 N.Y.2d 570 (1965), the court upheld a subpoena issued to a corporation by the city comptroller. The comptroller was conducting an investigation with respect to the performance of a contract between the city and the corporation. The contract required the corporation to restore certain city property and to pay to the city the net revenue derived from the World's Fair. The court concluded that the transactions of the corporation under these circumstances were "a matter of genuine concern to the city." 22 A.D.2d at 616-17.

A financial or contractual relationship with the City is not, however, required by either the language of General City Law § 20(21) or by judicial precedent. Matters affecting the well-being of a city's residents may be matters of concern to the city without implicating a direct financial relationship between the city and a third party. For example, a city may issue a subpoena to gather information needed to decide whether to enact local legislation. "Municipal affairs include conditions affecting every department and the entire population of the City, not alone employees. . . . The right to investigate for the purpose of enacting laws implies the right to obtain information upon any matter which may become the subject of a law." Frank v. Balog, 189 Misc 1016, 1019 (Sup. Ct. Westch. County), aff'd, 272 A.D. 941 (2d Dep't 1947).

In Dairymen's League Coop. Ass'n v. Murtagh, 274 A.D. 591 (1st Dep't 1948), aff'd, 299 N.Y. 634 (1949), the court upheld the authority of the New York City Commissioner of Investigation to issue a subpoena in an investigation of milk prices, partly because the city purchased a significant amount of milk itself for use in its institutions and "also because the sale and distribution of milk is of major importance to the health and well-being of the people of the city. The distribution of milk is a business affected with a public interest." Id. at 593-94. The court found that public interest sufficient to support a subpoena to the Dairymen's League calling for the League's records showing which customers had been charged less than the listed price for milk, and the amount and price of milk sold to them.

Similarly, in Fuentes v. Fishel, 44 Misc. 2d 943 (Sup. Ct. N.Y. County 1964), in considering an application to quash subpoenas issued by the New York City Commissioner of Investigation to a not-for-profit corporation, the court concluded that the subject of the Commissioner's investigation was a matter of concern to the city sufficient to support the subpoenas. The commissioner was investigating both the use of city funds by the not-for-profit corporation and whether employees of the corporation had "instigated or advocated disregard for legally-constituted authority or attempted to indoctrinate beneficiaries of [its] program with a philosophy of political action alien to the form provided for by the Constitutions of the United States and the State of New York." Id. at 945. The court held that both the use of city funds and the advocacy of alien political doctrine were proper matters for investigation, as each was "of vital concern to the city and its inhabitants and affects the best interests of the city." Id. at 946.

Therefore, the fact that the City wishes to issue subpoenas to not-for-profit corporations that have no significant financial or contractual relationship to the City does not by itself invalidate such subpoenas. We note that in a recent proceeding relating to subpoenas issued by a single member of the City's common council to investigate the treatment and housing of sex offenders by local charitable organizations, the court "acknowledge[d], as do all the parties to this proceeding, that the subject of the subpoenas duces tecum here, issues relating to the housing and/or treatment of convicted sex offenders, is one of great public concern and interest." Matter of Massar, 2007 N.Y. Misc. LEXIS 6159, **6 (Sup. Ct. Broome County, Aug. 30, 2007) (subpoenas issued by individual council member not authorized).

The grant of subpoena power in General City Law § 20(21) does not explicitly include the authority to issue subpoenas duces tecum. The power to require and enforce by subpoena the attendance of witnesses at an investigation into matters of concern to the city has been held, however, to authorize a city to issue a subpoena duces tecum as a power necessarily implied by this grant of authority under at least some circumstances. See New York World's Fair 1964-1965 Corp. at 617; Kilgallon v. City Council of Troy, 53 A.D.2d 976, 978 (3d Dep't 1976) ("We cannot say that the council is without authority to issue a legislative subpoena [for the production of documents], for such an act is in furtherance of the general power of inquiry conferred by the law of the State (General City Law § 20)"); cf. General City Law § 20(23) (granting city power to exercise all powers necessary and proper for carrying into execution the powers granted to city). As the court in New York World's Fair 1964-1965 Corp. explained, "Because of the complexity and infinite detail involved in an investigation" such as into the transactions of the World's Fair corporation, "a bare power of subpoena without the power to issue a subpoena duces tecum to require the production of books and records for use in an examination of a witness in a proper case, would be useless." 22 A.D.2d at 617.

Therefore, we conclude that the power to issue subpoenas under General City Law § 20(21) may authorize the issuance of subpoenas to not-for-profit corporations that do not have a significant financial or contractual relationship with the City if the City is investigating a matter of concern to the City or its inhabitants. Whether exercise of this power is limited to the geographic area of the City is unclear. Compare Baker/Beech-Nut Corp. v. Wieloszynski, 89 Misc. 2d 256 (Sup. Ct. Onondaga County 1976) (administrative agency has no authority to serve a subpoena outside the area of the agency's jurisdiction) with Ruskin v. Brenner, 60 Misc. 2d 545 (Sup. Ct. N.Y. County), aff'd, no opn., 33 A.D.2d 659 (1st Dep't 1969) (city commission could serve subpoena anywhere within state). We are of the further opinion that this authority may encompass the authority to issue subpoenas duces tecum.

We turn next to the question of who may exercise this power on behalf of the City. General City Law § 23 provides that the powers granted by article 2-A of the General City Law "are to be exercised by the officer, officers or official body vested with such powers by any other provision of law or ordinance . . . ." General City Law § 23(1). In the absence of any provision of law or ordinance establishing by whom a power is to be exercised, "the common council . . . of the city shall . . . have power by ordinance to determine by whom and in what matter and subject to what conditions said power shall be exercised." Id. § 23(2). In the event that no law or ordinance already designates the officer or body to exercise this power, this might, for example, already be addressed in the city charter, see Matter of Massar, 2007 N.Y. Misc. LEXIS 6159 at **8, we believe that the common council may establish by ordinance that the power to require and enforce by subpoena the attendance of witnesses at an investigation into matters of concern to the City resides in itself, rather than some other officer or official body.

If in fact the common council establishes itself as the proper body to investigate matters of concern to the City or its inhabitants, we note that section 41 of the General Construction Law requires that, whenever three or more public officers are given a power, that power must be exercised by "not less than a majority of the whole number." For the purpose of this provision, "whole number" is to be construed to mean the total number that the council would have were there no vacancies and were none of the members disqualified from acting. Id. This section applies "to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended," id. § 110, and has been applied to city common councils. See, e.g., Op. Att'y Gen. (Inf.) No. 2001-6. Therefore, unless other law provides otherwise, we believe that the power to investigate into matters of concern to the City or its inhabitants, if established in the common council, must be exercised by a majority of the whole council.

We note that a subpoena may be challenged on a variety of grounds. A non-judicial subpoena duces tecum may be challenged, for example, on the grounds that it subjects the witness to harassment or that the requested documents are not reasonably related to the subject matter under investigation or the public purpose to be served. Myerson v. Lentini Bros. Moving & Storage Co., 33 N.Y.2d 250, 256 (1973). A subpoena issued by a local official to a state agency may be unenforceable as an unauthorized interference in matters of state policy. See Board of Education of New York v. Goldin, 94 Misc. 2d 574 (Sup. Ct. Kings County 1978), aff'd, 72 A.D.2d 603 (2d Dep't 1979); Grills v. Giambra, 114 Misc. 2d 571 (Sup. Ct. Erie County 1982). Therefore, our conclusion that the City may exercise the power to investigate matters of concern to the City or its inhabitants by issuing subpoenas to non-city entities should not be read as validating any particular subpoena that the City may issue.

In summary, we conclude that a city's authority to issue subpoenas for the testimony of witnesses may extend to non-city entities in the course of the city's investigation into matters of concern to the city or its inhabitants, and that in at least some circumstances this authority encompasses the authority to subpoena documents. We further conclude that, in the absence of other law providing otherwise, this authority may be exercised by the common council by a vote of a majority of the whole council, if the council has previously adopted an ordinance designating itself as the official body vested with this power.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions