ORDERED that those portions of the petition (#001) served and filed in this special proceeding wherein the petitioner seeks a judgment in the nature of prohibition, permanently enjoining the respondents from conducting further proceedings to review the operations and procedures of the petitioner and to make legislative recommendations with respect thereto, are considered under CPLR 7803(2) and are denied; and [*2]it is further

ORDERED that the remaining portions of the petition wherein the petitioner seeks an order quashing the October 18, 2010 subpoena issued by the respondent William Lindsay on behalf of the Special Legislative Committee for Oversight of the Suffolk County Ethics Commission are considered under CPLR 2304 and 7803 and are granted; and it is further

ORDERED that the petitioner's application for a preliminary injunction restraining the respondents from conducting further proceedings to review the operations and procedures of the petitioner and to make legislative recommendations with respect thereto is considered under CPLR Articles 63 and 78 and is denied, and it is further

ORDERED that the court hereby lifts the restraint contained in the November 1, 2010 Order to Show Cause which precluded the respondents' issuance, processing, prosecution and/or enforcement of any subpoena.

The petitioner commenced this special proceeding pursuant to CPLR Article 78 for relief in the nature of prohibition forever precluding and permanently enjoining the respondents from conducting further proceedings to review the operations and procedures of the petitioner and from making legislative recommendations with respect thereto. The petition also includes a demand that the court issue an order quashing a subpoena issued on October 18, 2010, by respondent Lindsay in the name of the Special Legislative Committee comprised of the individual respondents, all of whom are members of the Suffolk County Legislature. By separate affirmation of its counsel, with exhibits attached, the petitioner demands, provisionally, all of the relief demanded in the petition.

The process paper by which the petition was interposed was an Order To Show Cause dated November 1, 2010 (Garguilo, J.), in which, the petitioner demanded a preliminary injunction conferring upon it all of the relief set forth in the petition. Therein, the respondents were restrained, pending further order of the court, only from "issuing, processing, prosecuting and/or enforcing subpoenas relating to matters referenced herein". They were not, however, restrained, as proposed by the petitioner, from conducting the tasks with which they are charged as members of the Special Legislative Committee, namely, the review of the operations and procedures of the petitioner and the formulation of legislative recommendations with respect thereto.

The November 1, 2010 Order To Show Cause recites that it is based upon the petition and the separate affirmation of the petitioner's counsel. The November 1, 2010 order, along with the petition and counsel's separate affirmation, were served by overnight delivery upon respondents' counsel as authorized therein by Justice Garguilo. The respondents served answering papers in the form of a memorandum of law with exhibits in which the respondents address all of the demands for relief set forth in the petition. In response thereto, the petitioners served reply papers. No objections to the various procedural irregularities apparent from the record of this special proceeding were raised by any party. The court thus deems the record before it as complete and shall herein determine, summarily, all of the petitioners' demands for relief (see CPLR 103[c]; 409[b]).

By the petition filed herein, the petitioner challenges the formation, existence and authority of the Special Legislative Committee of the Suffolk County Legislature which was formed to review the operations and procedures of the petitioner, the Suffolk County Ethics Commission. The petitioner alleges that in and [*3]about June 2010, it was widely reported that the petitioner accepted, as compliant with the financial disclosure requirements of Chapter 61 of the Code of Suffolk County, the New York State annual statement of financial disclosure form which the County Executive, being an ex officio member of the New York State Central Pine Barrens Commission, files with the New York Public Integrity Commission pursuant to Public Officers Law �73-a. (see petition � � 7; 8). The petitioner further alleges that shortly thereafter, respondent William J. Lindsay, in his capacity as Presiding Officer of the Suffolk County Legislature, established the targeted Special Legislative Committee, by appointing himself and the other respondents, all of whom are members of the County Legislature, to review the operations and procedures of the petitioner, Ethics Commission, and to make legislative recommendations with respect thereto (see petition � � 9;10).

The petitioner claims that in September of 2010, it received correspondence from the Special Legislative Committee (hereinafter "SLC") requesting the petitioner to produce various documents relating to: requests for Financial Disclosure reports filed under the Freedom of Information Law (FOIL); all ethics complaints made to the petitioner; various memoranda, opinions and position papers received or produced by the petitioner relative to financial disclosure and other matters; and a list of any other county employees or public officials who filed the New York State Disclosure form in lieu of the County form (see petition � 12). The petitioner responded by indicating its willingness to comply with the SLC's demands for production of the FOIL requests but with none of the SLC's other demands due to their "confidentiality" (see petition � � 14; 15). The petitioner thus advised SLC to issue a subpoena, so that the petitioner could obtain judicial guidance as to the extent to which the law permits disclosure of the confidential information sought by the Special Legislative Committee (see petition � 16).

On October 12, 2010, the Suffolk County Legislature adopted a resolution authorizing the SLC to issue subpoenas upon a majority vote of its entire membership and on October 18, 2010, respondent Lindsay issued a subpoena to the petitioner calling for the same documents specified in SLC's September 21, 2010 document request (see petition � � 17; 18). After the SLC declined the petitioner's request for withdrawal of said subpoena, this special proceeding was commenced.

Underlying the petitioner's demands for relief in the nature of prohibition and permanent injunctive relief forever precluding the SLC from reviewing the operations, processes and procedures of the petitioner and from making legislative recommendations with respect thereto, are the following claims: 1) that the SLC was not lawfully constituted and that the SLC is acting unlawfully and in excess of, or without, jurisdiction (see petition � � 20-31); and 2) that great harm will inure to the petitioner if the SLC is allowed to review the operations and procedures of the petitioner (see petition � � 32-35). The grounds advanced by the petitioner for an order quashing the subpoena issued by the SLC include that: 1) the subpoena was not duly issued (see petition � � 36-40); 2) the documents called for by the subpoena are prohibited from disclosure by Local Law under criminal penalty (see petition � � 41-54); 3) public policy favors the confidentiality of ethics information to promote integrity in government (see petition � � 55-64); and 4) the subpoenaed documents are protected by the attorney/client privilege (see petition � � 65-67).

In opposing the petitioner's demands for relief in the nature of prohibition and injunctive relief, the respondents argue that the petitioner's complaints regarding the purported illegal formation of the SLC are immune from judicial scrutiny under the separation of powers doctrine. Respondents contend that the petitioner's claims of illegality and jurisdictional excesses relate solely to internal matters and procedural determinations within the province of the County Legislature. Respondents further contend that since no violation of constitutional rights nor contravention of applicable statutes, laws or ordinances are implicated by the facts asserted in the petition and supporting papers, the actions of the respondents, as members of the [*4]SLC, are not the proper subjects of judicial review. Moreover, any irregularities or procedural omissions in the initial formation of the SLC are alleged to have been rendered academic by the County Legislature's adoption of no fewer than three resolutions in August and October of 2010. Therein, the County Legislature acknowledged, confirmed and ratified the existence of the SLC, its objectives and oversight powers to review the operations and procedures of the petitioner and conferred upon it the power to take sworn testimony; to retain counsel; and to issue subpoenas.

The respondents further contest any entitlement on the part of the petitioner to an order quashing the subpoena that is the subject of the remaining portions of the petition. They contend that the subpoena, like the SLC itself, was lawfully constituted and that issuance of the subpoena was proper. The respondents further contend that the petitioner's challenges to the subpoena that are based upon claims of confidentiality, under penalty of criminality, public policy and privilege are all without merit.

For the reasons set forth below, the court denies the petitioner's demands for a writ of prohibition and/or permanent injunctive relief precluding the SLC from continuing to perform the tasks and objectives for which it was formed. However, the court grants the petitioner's demands for an order quashing the subpoena served by the SLC in October of 2010.

The extraordinary writ of prohibition is available to address "whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction" (CPLR 7803[2] ). "Prohibition may be maintained solely to prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction * * * and then only when the clear legal right to relief appears and, in the court's discretion, the remedy is warranted" (Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 604 NYS2d 541 [1993], quoting, Matter of Schumer v Holtzman, 60 NY2d 46, 51, 467 NYS2d 182 [1983]). The writ is generally not available to correct common procedural or substantive errors (see Matter of Holtzman v Goldman, 71 NY2d 564, 569, 528 NYS2d 21[1998]; Matter of Rush v Mordue, 68 NY2d 348, 353, 509 NYS2d 493 [1986]. Nor may it issue against legislative, executive or ministerial action (see Matter of Schumer v Holtzman, 60 NY2d 46, supra). Where those charged with acting in excess or without jurisdiction are performing a purely investigative function, they are not acting in a judicial or quasi- judicial capacity which renders the remedy of prohibition unavailable to the target of the investigation (see McGinely v Hynes, 51 NY2d 116, 432 NYS2d 689 [1980]; Doe v Cuomo, 71 AD3d 889, 895 NYS2d 833 [2d Dept 2010]; Matter of the Suffolk County Legislature v Mullen, 211 AD2d 736, 622 NYS2d 294 [2d Dept 1995]). The petitioner, here, whose petition refers expressly to CPLR 7803(2), failed to demonstrate that the challenged actions of the respondents constitute judicial or quasi-judicial conduct and that this court should exercise its discretion to permit the petitioners to proceed with its quest for relief in the nature of prohibition (see Doe v Cuomo, 71 AD3d 889, supra; see also People ex rel. Bender v Milliken, 185 NY 35, 77 NE 872 [1906]).

The court's inquiry does not, however, end with the foregoing determination since the petitioner demands in its "wherefore clause" permanent injunctive relief which would halt the business of the SLC. Nevertheless, applicable legal concepts, such as the doctrines of justiciable controversies and separation of powers, serve to keep judicial scrutiny of legislative and executive actions, circumspect, when such actions are challenged in suits in which declaratory and/or injunctive relief are demanded. In a recent hybrid Article 78 proceeding and declaratory judgment action entitled, Matter of Montano v County Legislature of County of Suffolk, (70 AD3d 203, 891 NYS2d 82 [2010]), the Appellate Division, Second Department stated:

"[I]t is a fundamental principle of organic law that each department of government should be free from [*5]interference, in the lawful discharge of duties expressly conferred, by either of the other branches" (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 239, 485 NYS2d 719 [1984], citing People ex rel. Burby v Howland, 155 NY 270, 282, 49 NE 775 [1898]; see Matter of Fornario v Clerk to Rockland County Legislature, 307 AD2d 927, 928-929, 762 NYS2d 896 [2d Dept 2003]). "In this regard, it is not the province of the courts to direct the legislature how to do its work' " (Matter of Fornario v Clerk to Rockland County Legislature, 307 AD2d at 929, 762 NYS2d 896, quoting New York Pub. Interest Research Group v Steingut, 40 NY2d 250, 256, 386 NYS2d 646 [1976]; see People ex rel. Hatch v. Reardon, 184 NY 431, 442, 77 NE 970, [1906] affd. 204 U.S. 152, 27 S.Ct. 188, 51 L.Ed. 415). "[S]eparation of powers principles generally preclude courts from intrud[ing] upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches' " (Matter of Maron v Silver, 58 AD3d 102, 107, 871 NYS2d 404 [3d Dept 2008], quoting Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14, 28, 828 NYS2d 235 [2006]).

"Justiciability is an untidy' concept but it embraces the constitutional doctrine of separation of powers and refers, in the broad sense, to matters resolvable by the judicial branch of government as opposed to the executive or legislative branches or their extensions" (Jiggetts v Grinker, 75 NY2d 411, 415, 554 NYS2d 92 [1990]). " [J]usticiability,' which ensures that the judiciary does not intrude upon or usurp the powers constitutionally allocated to the executive or the Legislature, holds that Judges should decide only judicially manageable questions" (Matter of Boung Jae Jang v Brown, 161 AD2d 49, 54-55, 560 NYS2d 307 [2d Dept 1990] [additional internal quotation marks omitted]).

The court went on to find that an issue involving an internal matter of a county legislature presents a nonjusticiable controversy that is to be handled by the county legislature as it is not the province of the courts to direct the legislature how to do its work. In the absence of any allegation that constitutional rights have been violated, or that a governmental body's action contravenes an applicable statute, law or ordinance, a legislature's governance of its internal affairs, which has been entrusted to it by law-including the question of whether the Legislature violated its own internal rules-should not be subject to court oversight (see Matter of Montano v County Legislature of County of Suffolk, 70 AD3d 203, 212, supra).

Here, as in Montano, the petitioner challenges the actions of the respondents as violative of the County Law and Local Laws including those embodying the County Legislature's own internal rules. An examination of the merits of such claims will thus be undertaken.

Rejected as unmeritorious are the petitioner's claims that the formation of the SLC by respondent Lindsay, in his capacity as Presiding Officer of the Suffolk County Legislature, is not authorized by any statute, local law or rule of the County legislature to create a "special" legislative committee. While the petitioner admits that the Presiding Officer may create independent committees or standing committees under the Rules of the County Legislature (see Laws of Suffolk County �� 664-3; 664-14), it claims that only the County Legislature is authorized to create special committees whose members shall consist of legislators appointed by the Presiding Officer (see County Law �154). These claims sound not in violations of any of the statutes or Local Laws recited by the petitioner, but rather, as challenges to acts allegedly unauthorized thereby and thus in excess or without the Presiding Officer's jurisdiction. However, this court has found that these claims are not subject to review under CPLR 7303(2). The petitioner failed to demonstrate a violation of any statute, law or ordinance on the part of the respondents. The petitioner's claims for judicial review of the respondents' actions and injunctive relief precluding further action on the part of the SLC are thus nonjusticiable controversies. [*6]

Assuming, without so finding, that the actions of respondent Lindsay in creating the SLC were in fact violative of statutes such as the County Law or Local Laws, the resolutions of the County legislature in August and October of 2010, ratified the existence of the SLC by specifying the number of members, their terms and the duties and powers of the SLC itself. While the petitioner claims that the legislature is without the power to sanction an illegally formed, special legislative committee after the fact, such claims touch upon the internal affairs of the legislature and not to matters which warrant judicial scrutiny. Notably, the petitioner recites no authority for these claims. The court, however, has found ample support for the validity of such ratifying action in case authorities concerned with action undertaken by public officers without satisfaction of some condition precedent requiring pre-action authorization that was later supplied by the body charged therewith (see Town of Caroga v Herms, 62 AD3d 1121, 878 NYS2d 834 [3d Dept 2009]; JRP Old Riverhead Ltd. v Town of Southampton, 44 AD3d 905, 844 NYS2d 132 [2d Dept 2007]; Town of N. Hempstead v Winston & Strawn, 28 AD3d 746, 814 NYS2d 237 [2d Dept 2006]; Town of Babylon v Tully Constr. Co., 242 AD2d 703, 662 NYS2d 590 [2d Dept 1997]; Town of Blooming Grove v Blooming Grove Farms Joint Venture, 128 AD2d 772, 513 NYS2d 255 [3d Dept 1987]). In each of these cases, the belated conferring of authority, by the public body or officer charged with issuing it, upon the public body or officer who acted in the first instance without such authority, was sustained. Morever, the County Legislature is empowered under County Law � 209 to conduct investigations into any subject matter within its jurisdiction and is further authorized to delegate such authority to a committee. The perceived irregular delegation of the power to create the SLC about which the petitioner complains was thus ameliorated by the subsequent resolutions of the County Legislature (see Town of Brookhaven v Durao, 21 AD3d 1083, 802 NYS2d 181 [2d Dept 2005]). The petitioner's demands for injunctive relief are thus denied.

Left for consideration are those portions of the petitioner's demands for an order pursuant to CPLR 2304 quashing the subpoena served by the SLC. The court rejects the petitioner's claim that the subpoena is without force or effect because the SLC was not lawfully constituted but illegally formed by ultra vires acts of respondent Lindsay. These claims are, however, without merit as this court has found that the SLC was lawfully constituted and is properly vested with authority and jurisdiction to review the operations and procedures of the petitioner and to make recommendations to the County Legislature with respect thereto. Likewise rejected are the petitioner's claims that the SLC was not properly vested with investigative powers. These powers were properly conferred upon the SLC by the County Legislature in the resolutions adopted in August and October of 2010 and included the power to take sworn testimony and the power to issue subpoenas.

All but one of the petitioner's remaining challenges to the subpoena issued by the SLC are hereby dispatched as unmeritorious. The petitioner's claim that the subpoena improperly calls for the production of documents which are confidential and would subject those complying with the subpoena to criminal penalties is without merit. Suffolk County Code, Chapter 61 at � 61-11(A) provides that "it shall be unlawful for a member of the Commission or other individual to disclose any information contained on a disclosure statement except as authorized by law". Subdivision (B) of � 61-11 provides that information received by the Ethics Commission shall be available for public inspection including the information set forth in the annual statement of financial disclosure, except that the categories of value shall remain confidential, as shall any other item of information authorized by the Board to be deleted from an individual's disclosure form. The financial disclosure form filed with the petitioner is thus not confidential under local law except with respect to the category of values or any other items deleted by the petitioner.

Moreover, nothing in the disclosure statement is confidential if its disclosure is authorized by law. As indicated above, County Law � 209 authorizes the County Legislature to conduct investigations into any [*7]subject matter within its jurisdiction and it is further authorized to delegate such authority to a committee. County Law � 209 also authorizes the legislature or any delegated committee to issue subpoenas requiring attendance by the recipient at an examination and the production of books, records, papers and documents. The court thus finds that the subject subpoena is authorized by law within the purview of � 61-11(A) of the Suffolk County Code and that the producer would not be subject to the criminal penalties attendant with disclosure of matters considered confidential under the Suffolk County Code or other Local Law.

Also unavailing are the petitioner's claims that the ethics complaints and the other documents at issue are confidential under Article XXX of the Suffolk County Code. Only certain notices and proceedings are confidential under § C30-4(D) of the Code and none of these have been shown to be the subject of the subpoena at issue here. Nor has the petitioner demonstrated that production of the documents called for by the subject subpoena would violate the public policy surrounding the formation and continued existence of an County Ethics Commission, such as the petitioner. The petitioner failed to demonstrate that the public policy of this State precludes the dissemination of documents relating to the internal workings of an ethics commission to the County Legislature, a committee thereof or other public officer or official charged with oversight and investigative powers. Indeed, public policy appears to dictate just the opposite, as the call for transparency in government seemingly sounds everywhere. The non-disclosure of materials gathered by ethics commissioners for purposes of public review, but thereafter deemed confidential by such commissioners, is not indorsed by any public policy known to this court. In fact, such stands in contrast to the stated Policy of Suffolk County, as set forth in § 61-2 of the Suffolk County Code which includes: "to recognize that citizens of Suffolk County are entitled to a high standard of candor from public servants" (see § 61-2[B]).

The petitioner's claims that the documents sought by the subject subpoena are protected by the attorney/client privilege are also unavailing. Such claims appear inconsistent with Article XXX of the Suffolk County Code at § C30-3(A)(7) which mandates that the petitioner prepare annual reports for the County Executive and the County Legislature summarizing the activities of the petitioner and recommend changes in the law governing the conduct of local elected officials and others. The conclusory and unsubstantiated claims of privilege asserted by the petitioner are insufficient to establish that an attorney/client privilege precludes the disclosure of ethics complaints filed with the petitioner or the other documents called for by the subject subpoena (see Priest v Hennessy, 51 NY2d 62, 431 NYS2d 511 [1980]).

However, the court does find merit in the petitioner's claim that the challenged subpoena was not authorized by the terms of the October 12, 2010 resolution of the County Legislature which required issuance of subpoenas by the SLC upon a majority vote of the entire membership of the SLC. This claim was pleaded in the petition and not disputed by the respondents. The reply papers submitted by the petitioner substantiated its claim that the subject subpoena was not issued upon a majority vote of the entire membership of the SLC. Under these circumstances, the court vacates the subject subpoena as violative of the subpoena power conferred upon the SLC by the County Legislature.

Dated: January2011

THOMAS F. WHELAN, J.S.C.