To prevent abuse of authority, the newest draft of City Council’s subpoena legislation now includes several provisions limiting how council and city boards and commissions can use it.
Council held its second reading Monday night of the subpoena legislation that would grant council and charter- and city-created boards, commissions and committees the authority to subpoena witnesses and books, documents, records or other evidence. Council took up the legislation after the law director recommended the city give the planning commission the ability to subpoena witnesses after the city lost a court appeal stemming from a planning commission decision in which the judge cited the lack of expert witnesses speaking on behalf of the city’s position.
Ward 4 Councilman Dave Kos worked with law Director Abe Lieberman to include limits on when and how the government bodies can use their subpoena powers.
“I read it through, and I had some questions about the scope of it, the broad scope, and how far-reaching that could be,” he said. “Every commission and every board and every body in the city would have the power to subpoena for basically whatever they wanted.”
Though a supporter of the ordinance, he said, abuse of power has existed as long as governments have. While he does not believe anyone currently sitting on City Council or any of the city’s boards and commissions would abuse the authority, he said, council must keep in mind it drafts legislation for sitting members as well as future members.
Having a subpoena ordinance without limitations worries him, Kos said. Residents or anyone who wants to engage with a public body and may disagree with that body’s position shouldn’t have to worry about retaliation in the form of a subpoena, he said.
“I want to make sure they don’t have to fear some digging or prying subpoena they’ll have to take to court to quash,” he said.
The new draft includes four specific limits on subpoena use in the city:
• The body issuing the subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.
• The subpoena must allow the person to whom it is issued a reasonable time to comply.
• The subpoena must be pertinent to the subject matter area that is being heard or investigated by the body issuing the subpoena.
• The subject matter area to which such subpoena
relates must be one that the body issuing the subpoena is authorized to hear or investigate.
The legislation also states it would be a defense against prosecution for disobeying the subpoena because the subpoena violated the limits or that “the testimony to be compelled or books, documents, records or other evidence to be produced is protected from release or disclosure by common law privilege or by any federal, state or local law.” However, the charge of contempt of council for disobeying a subpoena is a third-degree misdemeanor, and a fourth-degree misdemeanor for subpoenas from the city’s other boards, commissions and committees.
Ward 1 Councilman Rob James, who is the sponsor for the legislation, said he believes the additional limitations in the legislation added by the law director are fine and address his fellow council members’ concerns. There was some initial misunderstanding about how a public body would issue a subpoena, he said, but it has since been explained that no individual member of a public body can issue a subpoena alone.
During the council meeting, resident Dan Haude questioned council’s ability to give itself and other public bodies the authority to issue subpoenas without a charter amendment since it’s not a power specifically mentioned in the city’s charter.
Lieberman said he believes home rule gives council that ability but he would research it further if Haude had more information he could provide.