Opposition — Slevin v. City of New York

Office « Supreme Court, U.S.

FILED

NOV 22 1983

Nos. 33-485 and 83-484

ALEXANDER L. STEVAS,

IN THE CLERK

=e

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JOHN J. BARRY, MARGUERITE

V. BARRY and JAMES

GEBHARDT, on their own behalf

and on behalf of all others

similarly situated,

Petitioners,

vs.

CITY OF NEW YORK; NEW YORK

CITY BOARD OF ETHICS;

EDWARD I. KOCH, as Mayor of

the City of New York; and DAVID

N. DINKINS, as City Clerk,

Respondents.

CAPTION CONTINUED ON NEXT PAGE

JAMES SLEVIN, MARK SLEVIN,

BRIAN CLINTON, JOAN

CLINTON, DR. STANLEY C.

FELL, and FRANK D'AMICO, on

their own behalf and on behalf of

all others similarly situated,

Petitioners,

vs.

CITY OF NEW YORK; NEW YORK

CITY BOARD OF ETHICS;

EDWARD I. KOCH, as Mayor of

the City of New York; FRANCIS T.

P, PLIMPTON, as Chairman of the

Board of Ethics; POWELL

PIERPOINT and BARBARA SCOTT

PREISKEL as members of the

Board of Ethics; and DAVID N.

Dinkins, as City Clerk,

Respondents.

BRIEF OF THE RESPONDENTS IN OPPOSITION

TOTHE PETITION FOR CERTIORARI

FREDERICK A. O. SCHWARZ, JR.,

Corporation Counsel of

The City of New York,

Attorney for Respondents,

100 Church Street,

New York, New York 10007

(212) 566-4289 or

566-4338

LEONARD KOERNER,

PAUL T. REPHEN,

Of Counsel.

QUESTION PRESENTED

Does the New York City Financial Disclosure

Law, New York City Administrative Code, §1106-

5.0, as amended by Local Law No. 48 of 1979,

violate any constitutionally protected right of

privacy of the petitioner classes?

TABLE OF CONTENTS

TABLE OF CASES

Page

Buckley v. Valeo,

424 U.S. l (1976) wToVvaeteaaeeeretwtent. tS 34

Califano v. Jobst,

434 U.S. 47 (1977) eee se . te ae 2 re eeeveee 23

Carey v. Population Services International,

431 U.S. 678 (1977) ert t teeter eee eeeee 23

City of Akron v. Akron Center for

Reproductive Health, 76 L. Ed. 687 (1983) -- 23

County of Nevada v. MacMillen,

522 P. 2d 1345 (Sup. Ct., Calif.,1974) ----> 36

Duplantier v. United States,

606 F. 2d 654 (5th Cir., 1979), cert. den.

oe SB ees eee eee 24, 35,

Fritz v. Gorton,

517 P. 2d 911 (Wash. Sup. Ct., 1974),

app. dism'd 417 U.S. 902 (1974) -+++++++-> 35

Gideon v. Alabama State Ethics Comm.,

379 So. 2d 570 (Ala. Sup. Ct., 1980) -+*++++ 24, 36

Goldtrap v. Askew,

334 So. 2d 20 (Fla. Sup. Ct., 1976) -+**+**>*> 36

Griswold v. Connecticut,

381 U.S. 479 (1965) seer errr rrr er reece 23

ofp

Page

Greene v. McGuire,

683 F. 2d 32 (2d Cir., 1982) «**++ereeee8% 32

Hunter v. City of New York,

58 AD 2d 136, 396 NYS 2d 186

(1st Dept., 1977), aff'd 44 NY

2d 708 ST), av6 N. z. 2d 928, 405

NYS2d 455 «ce ter tree ewe w ween ree nene 9, 10,

Illinois Employees' A., .v. Walker,

315 N.E. 2d 9 (1974),

cert. den. sub. nom.

Troopers Lodge No. 41 v. Walker,

419 U.S. 1056 (1974) seceeerrecccccccccs 24, 36

Lefkowitz v. Cunningham,

431 U.S. 801 (1977) sere t terete eee e eee 29

Loving v. Virginia,

388 U.S. 1 (1967) «errr t terete ee eeeee . 23

Meyer v. Nebraska, 262 U.S. 390

OU) *) 23

Montgomery County v. Walsh,

336 A. 2d 97 (Ct. of Appeals, Md., 1975),

app. dism'd 424 U.S. 901 (1976) -++-++++++*+ 24,35

Nixon v. Administrator of General Services,

433 U.S. 425 (1977) «sere eerrererreecece 24, 36

n v. DiGrazi

cert. den. nom.

1 401 T) eee rererereresenees 35

-li-

Opinion of the Justices to the Senate,

376 N.E. 2d 810 (Mass. Sup. Jud. Ct., 1978) -- 36

Paul v. Davis,

424 U.S. 693 (1976) «errr teeter eee ees o 23

Pesale v. Beekman,

81 AD 2d 590, 437 NYS 2d 448

(1st Dept., 1981),

aff'd 54 NY 2d 707 426 NE 2d 483,

442 NYS2d 989 (1981) scceccsserccseces 32

Pierce v. Society of Sisters,

268 U.S. 510 (1925) eee e a@ 68 6.6 sense @ 23

Plante v. Gonzalez,

575 F. 2d 1119 (Sth Cir., 1978),

cert. den. 439 U.S. 1009 (1979) ++-++++++>+ 24, 35,

Plyler v. Doe, 457 U.S. 202 (1982) -++*+**> 29

Roe v. Wade,

410 U.S. 113 (1973) «eee rerrrrrrreces 23

Skinner v. Oklahoma,

316 U.S. 535 (1942) «seer rere teeter eres 23

Smith v. O ization of Foster Famili

431 U.S. 816 1977) ss eerrrrrrerecerece 23

a eat

436 A. 2d 593 (Pa. Sup. Ct., 1981) --++++++ 24

Stein v. Howlett,

289 N.E. 2d 409 (Ill. Sup. Ct. 1972),

app. dism'd 412 U.S. 925 (1973) --+++++++> 35

Whalen v. Roe,

429 U.S. 589 (1977) «ese e reer eee renee 24, 34,

36

Zablocki v. Redhail,

Se ae we qeerey 68 88 8S S606 5 5 OED vie 23

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

Nos. 83-485 and 83-484

JOHN J. BARRY, MARGUERITE

V. BARRY and JAMES

GEBHARDT, on their own behalf

and on behalf of all others

similarly situated,

Petitioners,

vs.

CITY OF NEW YORK; NEW YORK

CITY BOARD OF _- ETHICS;

EDWARD I. KOCH, as Mayor of

the City of New York; and DAVID

N. DINKINS, as City Clerk,

Respondents.

CAPTION CONTINUED ON NEXT PAGE

JAMES SLEVIN, MARK SLEVIN,

BRIAN CLINTON, JOAN

CLINTON, DR. STANLEY C.

FELL, and FRANK D'AMICO, on

their own behalf and on behalf of

all others similarly situated,

Petitioners,

vs.

CITY OF NEW YORK; NEW YORK

CITY BOARD OF __ ETHICS;

EDWARD I. KOCH, as Mayor of

the City of New York; FRANCIS T.

P. PLIMPTON, as Chairman of the

Board of Ethics; POWELL

PIERPOINT and BARBARA SCOTT

PREISKEL as members of the

Board of Ethics; and DAVID N.

DINKINS, as City Clerk,

Respondents.

BRIEF OF RESPONDENTS

IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

(1)

These cases are class actions brought pursuant

to 42 USC §1983 by New York City police officers

(Barry v. City of New York), fire officers (Slevin v.

City of New York), and their spouses challenging the

constitutionality of New York City Administrative

Code, §1106-5.0, as amended by Local Law No. 48

of 1979. The law requires candidates for City

office, elected officials, agency heads, members of

City boards and commissions who receive

compensation, employees in the City's managerial

pay plan and all other City employees earning

annual salaries of $30,000 or more to file with the

City Clerk annual reports disclosing certain

financial interests, and makes such reports available

for public inspection. The statute also contains a

procedure by which a person required to file a

financial disclosure report can assert a privacy

claim against public disclosure of a portion or all of

the information contained in the report.

The petitioner class in Barry consists of police

officers of the rank of captain and above and their

spouses. This class, out of a total force of 25,000

police officers, includes approximately 250 captains,

80 deputy inspectors, 40 inspectors, 20 deputy

chiefs, 10 assistant chiefs, 5 bureau chiefs and 1

chief of operations. All ranks above the rank of

captain are non-civil, service and are appointees of

the police commissioner. The Barry class also

includes lieutenants designated as supervisors of

detective squads and/or special assignment, and

police surgeons. Police surgeons are physicians who

are members of the uniformed force and treat

police officers and determine their fitness for duty.

The petitioner class in Slevin consists of

battalion chiefs, deputy chiefs and medical officers

of the Fire Department and their spouses. At the

time the litigation was commenced, the Fire

Department employed approximately 80 deputy

chiefs, 280 battalion chiefs and 10 medical officers

out of a total force of 9,500 firefighters. The

-3-

primary duty of deputy chiefs and battalion chiefs

is to supervise firefighting operations. Battalion

chiefs supervise five to eight fire companies, and

deputy chiefs supervise three or four battalions.

Medical officers, like their counterparts in the

Police Department, supervise the treatment of

firefighters and determine their fitness for duty.

In addition to their firefighting

responsibilities, battalion chiefs and deputy chiefs

have broad responsibility for supervising fire

inspections within the areas of their commands

(Slevin, Joint Appendix, pp. 391-393, 399-404). In

addition, chiefs hold important supervisory positions

in the Fire Department's Bureau of Fire Prevention,

which inspects major buildings and structures, and in

its Maintenance and Communications ivisions,

whose responsibilities include the purchase of new

equipment and spare parts (Slevin, Joint Appendix,

pp. 377-381, 396-399).

Facts

(1)

Legislative History of §1106-5.0

Administrative Code, §1106-5.0 was initially

enacted by the City Council in 1975 (Local Law No.

1 of 1975). As originally enacted, §1106-5.0

required the Mayor, the City Council President, the

members of the City Council, the five Borough

Presidents, the City Comptroller and declared

candidates for those positions, as well as each

commissioner or agency head, assistant

commissioner or assistant agency head, board

member, and city employee whose salary was

$25,000 or more, to file with the City Clerk not

later than June thirtieth of each year a report

disclosing certain financial interests.

Each person filing a report was, and after

subsequent amendments to the statute still is,

required to list the following items on behalf of

himself or herself and his or her spouse (§1106-5.0,

subd. b):

The name, address and type of

practice of any professional

organization in which the person

reporting or his spouse was an

officer, director, partner,

proprietor, employee or advisor

from which income of $1,000 or

more was derived during the

preceding calendar year.

The source of any income of $1,000

or more received during the

preceding calendar year for

services rendered.

Any capital gain from a single

source of $1,000 or more other

than from the sale of a residence

occupied by the filer.

Reimbursement for expenditures of

$1,000 or more in each instance.

Honoraria from a single source in

an aggregate amount of $500 or

more and any gift in the aggregate

amount of $500 or more from any

single source received during the

preceding year.

Each creditor to whom the person

reporting or his spouse was

indebted for a period of ninety

consecutive days or more during

the preceding calendar year in an

amount equal to or exceeding

$5,000.

Each investment or parcel of real

estate in which a value of $20,000

or more was held at any time

-6-

during the preceding calendar year

based on its cost or if acquired by

means other than purchase, its

estimated value at the time of

receipt.

The identity of each trust or other

fiduciary relation in which a

beneficial interest was held during

the preceding calendar year having

a value of $20,000 or more.

The statute does not require the filer to

disclose the precise amount of the income,

investments and indebtedness items required to be

disclosed. Rather, it requires only approximate

disclosure within broad dollar ranges. (§1106-5.0,

subd. b (6)(a)(b)(c)) Thus, with respect to income

derived from services rendered, including services

rendered to professional organizations,

reimbursements or capital gains other than from the

sale of a personal residence, the filer checks an

appropriate box on the report indicating whether the

income received by him or his spouse was at least

$1,000 but less than $5,000, at least $5,000 but less

than $25,000, at least $25,000 but less than

$100,000, or in excess of $100,000. Similar

=

categories are provided for gifts and honoraria with

the addition that the filer can check a box

indicating that the gift or honoraria was between

$500 and $1,000. With respect to indebtedness, the

person filing the report checks the appropriate box

indicating whether his or his spouse's debt was at

least $5,000 but less than $25,000, at least $25,000

but less than $100,000, at least $100,000 but less

than $500,000 or was $500,000 or greater. Lastly,

with respect to investments, trusts and fiduciary

relationships, and real property holdings, the

categories are: at least $20,000 but less than

$100,000, at least $100,000 but less than $500,000

and $500,000 or greater. Intentional violations of

§1106-5.0 constitute a misdemeanor punishable by

imprisonment for not more than one year or a fine

not to exceed $1,000 or both (§1106-5.0, subd. g).

Local Law No. 1 of 1975 made the financial

disclosure reports available to taxpayers. Unlike

the law now being challenged, however, it did not

establish a procedure by which a person making a

-8-

report could claim that its public disclosure would

invade his or her privacy.

(2)

In June 1975 a class action was commenced in

the Supreme Court of the State of New York on

behalf of all individuals in the competitive and non-

competitive classes of the civil service of the City

earning annual salaries of $25,000 or more,

challenging the constitutionality of Local Law No. 1

of 1975, inter alia, on the ground that it violated the

privacy rights of the class under the United States

Constitution. That action was rejected by the State

Supreme Court in Hunter v. City of New York, 88

Misc. 2d 562 (Sup. Ct., N.Y. Co., 1976). On appeal,

the Appellate Division, First Department of the

Supreme Court held that the City Council could

enact a provision requiring that class of employees

and their spouses to make public disclosure of their

financial interests, but held Administrative Code,

$1106-5.0 infirm on the ground that it did not afford

a covered employee the opportunity to present a

-9-

claim that the public disclosure of an item

contained in the report would unnecessarily intrude

upon the employee's privacy. Hunter v. City of New

York, 58 AD 2d 136, 396 NYS2d 186 (1977). The

New York Court of Appeals unanimously affirmed

the order of the Appellate Division, First

Department on the opinion of that Court. 44 NY 2d

708, 376 N.E.2d 928, 405 NYS2d 455 (1977).

In 1979 the City Council acted to correct the

constitutional infirmity in §1106-5.0 which was

found to exist by the Court in Hunter. In addition,

it made other changes with respect to its scope of

coverage (Local Law No. 48 of 1979). The Council

adopted a procedure whereby an employee could

assert a privacy claim with respect

to any items contained in his or her financial

disclosure report. Any person required to file a

report is permitted, at the time the report is filed

or at anytime thereafter, except when a request for

public inspection is pending, to submit a request to

withhold any item disclosed therein from public

-10-

inspection on the grounds that such inspection would

constitute an "unwarranted invasion of his or her

privacy" (§1106-5.0, subd. d[{1]). Privacy requests

must be made in writing and must set forth the basis

for the claim. The financial disclosure report form

provides space for an individual to make a privacy

claim and to set forth the basis for that claim

(JA29-32).1 Privacy requests are evaluated by the

public members of the New York City Board of

Ethics, a board consisting of three public members,

in addition to the Corporation Courisel and City

Personnel Director. The Board of Ethics is

established by New York City Charter, Chapter 68

($2600 et seq.) to render advisory opinions to City

officers and employees with respect to questions of

ethical conduct, conflicts of interest and other

matters arising under that chapter of the City

Charter (Charter, §2602, subd. [a]). In determining

+Numbers in parentheses preceded by "JA" refer to

the pages of the joint appendix in Barry. Other

numbers in parentheses refer to the appendix to the

Barry petition.

-11-

whether public inspection of an item would

constitute an unwarranted invasion of privacy, the

Board of Ethics must consider the following factors

(§1106-5.0, subd. d[2]):

"(a) whether the item is of a

highly personal nature;

(b) whether the item in any way

relates to the duties of the

position held by such person

{making the privacy request];

(c) whether the item involves an

actual or potential conflict

of interest.”

The Board of Ethics is empowered to establish

procedures for consideration of privacy requests.

The procedure, inter alia, permits the filer to

appear before the Board in person or by writing to

state the basis for the claim that the information

should be withheld from the public (§1106-5.0, subd.

d(3]).

In instances where a person has asserted a

privacy claim, the disclosure report is sealed and

kept in the office of the City Clerk. A privacy

claim is not evaluated by the Board of Ethics unless

-12-

a member of the public requests permission in

writing to inspect an item contained therein (JA

345). At that time, the City Clerk refers the

request for public inspection and the financial

disclosure report, including that portion of the

report in which the filer states the basis for his

privacy request, to the Board of Ethics for

evaluation (JA 345). The City Clerk also notifies

the employee that a request has been made to

inspect his report and that the matter has been

referred to the Board of Ethics (JA 346).2 The

employee is reminded of his right to appear before

the Board, and is offered the opportunity to submit

additional material in support of his claim (JA 346).

Determinations by the Board of Ethics are in writing

and set forth the reasons for the determination

(§1106-5.0, subd. d[4]).

“Persons filing financial disclosure report forms are

always notified when a member of the public seeks

to inspect his or her report regardless of whether a

privacy request has been claimed by the employee.

-13-

If the privacy claim is sustained, the parties

are notified, and the disclosure report, with the

item or items adjudged to warrant privacy

protection deleted from the report, is returned to

the City Clerk (JA 346). If the privacy request is

not upheld, the person filing the privacy claim is so

notified by the Board of Ethics and is afforded the

opportunity to request a rehearing by the Board and

to submit additional material (JA 347). He is also

advised of his right to seek judicial review of the

Board's determination (JA 347). The employee is

allowed ten days to determine his course of action,

thus affording him the opportunity to seek judicial

relief, including injunctive relief, by way of a

proceeding in state court. If the Board does not

hear from the employee within ten days, the report

is returned to the City Clerk and made available for

public inspection without deletion (JA 347). That

portion of the financial disclosure report in which

the filer discusses the basis for the assertion of the

-14-

privacy claim is never made available for public

inspection (347).

In addition to establishing a privacy precedure,

Local Law No. 48 of 1979 contained several other

amendments. Employees in the City's managerial

pay plan were made subject to §1106-5.0 regardless

of their salary, and the minimum salary level at

which other City employees are required to file

reports was increased from $25,000 to $30,000.3

The Board of Ethics has been called upon to

make twenty-six determinations of privacy claims

since the enactment of Local Law No. 48. Sixteen

of those claims were sustained by the Board of

Ethics, six were withdrawn by the employees and

one was otherwise disposed of (JA 347). Only three

privacy requests have been denied by the Board (JA

347). Those three requests were denied because the

filers failed to provide the Board of Ethics with

“The City administration has recently transmitted

to the City Council a bill which, if enacted, would

increase the filing threshold from $30,000 to

$42,000.

additional information supporting their claims (JA

349).

(3)

The Litigation Challenging Local Law No. 48 of

1979

On September 4, 1979, plaintiffs commenced

the instant action on their own behalf and on behalf

of others similarly situated. District Court Judge

Abraham Sofaer granted a preliminary injunction

prohibiting the City from enforcing §1106-5.0, as

amended by Local Law No. 48 of 1979, with respect

to the plaintiff classes.

Following hearings on these cases, the District

Court concluded that §1106-5.0 was constitutional

insofar as it required disclosure to City government,

but unconstitutional with respect to _ public

inspection of the plaintiffs' reports (41a-103a). It

held that government access to the reports would

help to root out corruption and conflicts of interest.

The Court observed (70a):

"Corruption and more subtle

conflicts of interest are possible in

each group of plaintiff employees.

That no corruption has been proven

among several groups of plaintiffs

does not establish that

improprieties have not occurred or

would never be deterred or

uncovered by the filings."

The Court also rejected the argument that the

inclusion of information relating to the spouse's

activity would significantly affect decisions to

marry, procreate or to make other intimate family

decisions protected by the Constitution (67a).

The District Court held that the public

disclosure of the reports in the case of persons who

are neither elected officials nor "policymakers" did

not serve any useful public purpose (80a-93a). It

also concluded that the financial disclosure reports

would be made readily available to members of the

public, including salesmen, neighbors, relatives,

former spouses, and business and charitable

organizations (74a).

-17-

The Court of Appeals

In addition to the appeal by the City, the

petitioners in Slevin cross-appealed from that

portion of the District Court's judgment which held

that financial disclosure to the government was

permissible. The Court of Appeals in unanimously

upholding the statute in all respects, stated (12a):

"We think the statute as a whole

plainly furthers a_ substantial,

possibly even a compelling, state

interest. The purpose of the

statute is to deter corruption and

conflicts of interest among City

officers and employees, and to

enhance public confidence in the

integrity of its government. * * *

Whatever one may think of the

intrusiveness of financial

disclosure laws, they are

widespread, see Slevin v. City of

New York, supra 557 F. Supp. at

919 n. 1, and reflect the not

unreasonable judgment of many

legislatures that disclosure will

help reveal and deter corruption

and conflicts of interest."

The Court rejected the Slevin petitioners’

contention that because of the Fire Department's

corruption-free history, financial disclosure serves

no legitimate purpose as applied to them, noting

(14a):

-18-

"In our view, the City Council

could reasonably conclude that LL

48 [Local Law No. 48 of 1979,

which amended Administrative

Code, §1106-5.0] would help deter

corruption and conflicts of interest

in the Fire Department, despite its

‘virtually corruption-free history."

With respect to the issue of public inspection

of the reports, the Court stated (16a):

" We do not think that the right to

privacy protects public employees

from the release of financial

information that is related to their

employment or indicative of a

possible conflict of interest. Nor

do we think the release of

information that is not ‘highly

personal’ rises to the level of a

constitutional violation."

After analyzing the statute's procedure for allowing

an employee to assert a privacy claim with respect

to any items contained in his or her report, the

Court concluded (15a):

"Unlike the — district court,

however, we think that the

statute's privacy mechanism

adequately protects plaintiffs’

constitutional privacy interests."

It noted, moreover, that the City's interest in public

disclosure of the reports "outweighs the possible

infringement of plaintiffs’ privacy interests."

The Court of Appeals agreed with the City's

argument that public disclosure of the reports will

encourage City agencies "to be aggressive in their

efforts to police corruption" and will enhance public

confidence in government. In this regard the Court

found (20a):

"In this case, we cannot say that it

was unreasonable for the City

Council to conclude that public

disclosure would materially

advance the City's attempt to

prevent corruption and conflicts of

interests."

The Court also held that public disclosure need

not be limited to elected officials and those

occupying "policymaking" positions. It also

sustained the $30,000 threshold for filing, observing

(21a):

*** the burden imposed by an

imprecise classification, and by the

broad nature of the required

disclosure, is mitigated by the

statute's privacy mechanism, which

permits covered employees to

challenge the proposed release of

irrelevant "highly personal’

information. Accordingly, we

cannot say that the law is

unconstitutionally overbroad or

that it violates the constitutional

right to privacy."

ARGUMENT

NEW YORK CITY ADMINI-

STRATIVE CODE, §1106-5.0

SERVES THE VITAL GOVERN-

MENTAL PURPOSE OF DIS-

COURAGING AND_- EXPOSING

CORRUPTION AND CONFLICTS

OF INTEREST. THE STATUTE

DOFS NOT VIOLATE ANY

CONSTITUTIONALLY PROTECT-

ED RIGHT OF THE MEMBERS OF

THE PETITIONER CLASSES. THE

CHALLENGED STATUTE SPECI-

FICALLY ESTABLISHES A

PROCEDURE WHEREBY ANY

EMPLOYEE REQUIRED TO FILE

A FINANCIAL DISCLOSURE

REPORT MAY AVOID PUBLIC

INSPECTION OF ANY ITEM

CONTAINED THEREIN BY

DEMONSTRATING THAT THE

ITEM IS OF A HIGHLY PERSONAL

NATURE, IS NOT INDICATIVE OF

A CONFLICT OF INTEREST, AND

IS UNRELATED TO HIS OR HER

DUTIES.

The New York City financial disclosure

statute does not violate any constitutionally

protected privacy right of the petitioner classes.

This Court has long recognized a protected interest

in being free from improper state action which

directly impacts on personal autonomy or decision

making in the area of marriage, procreation,

contraception, abortion and the creation

maintenance and termination of the family

relationship. See City of Akron v. Akron Center for

Reproductive Health Inc., U.S. , 76 L. Ed.

687, 700-701 (1983); Zablocki v. Redhail, 434 U.S.

374, 386, 387 n. 12 (1978); Califano v. Jobst, 434

U.S. 47, 54 (1977); Carey v. Population Services

International, 431 U.S. 678 (1977); Smith v.

Organization of Foster Families, 431 U.S. 816

(1977), Paul v. Davis, 424 U.S. 693 (1976); Roe v.

Wade, 410 U.S. 113 (1973); Loving v. Virginia, 338

U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479

(1965); Prince v. Massachusetts, 321 U.S. 158

(1944); Skinner v. Oklahoma, 316 U.S. 535 (1942);

Pierce v. Society of Sisters, 268 U.S. 510 (1925);

Meyer v. Nebraska, 262 U.S. 390 (1923). Financial

disclosure laws, however, do not implicate this

aspect of privacy because they do not directly or

substantially effect intimate family and personal

-23-

matters such as a decision to marry, beget children

or maintain a family relationship. Plante v.

Gonzalez, 575 F. 2d 1119, 1131-1132 (5th Cir.,

1979), cert. den. 439 U.S. 1009 (1979); Duplantier v.

United States, 606 F. 2d 654, 669-670 (5th Cir.,

1979), cert. den. 449 U.S. 1076 (1981); Montgomery

Co. v. Walsh, 336 A. 2d 97 (Ct. of Appeals, Md.,

1975), app. dism'd 424 U.S. 901 (1976); Illinois

Employees Assn. v. Walker, 315 N.E. 2d 9 (Sup. Ct.,

Ill., 1974), cert. den. sub. nom. Troopers Lodge No.

41 v. Walker, 419 U.S. 1058 (1974); Snider v.

Thornburgh, 436 A. 2d 593, 598 (Sup. Ct., Penn.,

1981); Gideon v. Alabama State Ethics Commission,

379 So. 2d 570, 572 (Sup. Ct., Ala., 1980).

In Whalen v. Roe, 429 U.S. 589, 605

(1977), and Nixon _v. Administrator of General

Services, 433 U.S. 425, 457-465 (1977), this Court

appeared to recognize a protected privacy interest

in avoiding "unwarranted disclosures" of personal

matters. In considering whether public inspection of

the financial disclosure reports would violate this

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confidentiality aspect of the privacy right, the

Court of Appeals correctly observed (16a):

"We do not think that the right to

privacy protects public employees

from the release of financial

‘sformation that is related to their

employment or indicative of a

possible conflict of interest. Nor

do we think the release of

information that is not ‘highly

personal’ rises to the level of a

constitutional violation."

Highly personal information contained in

a financial disclosure report which is unrelated to

the duties of the filer and which is not indicative of

a conflict of interest is protected from public

disclosure under the statute. Specifically,

subdivision d(1) of §1106-5.0 permits an employee at

the time the disclosure report is filed or at anytime

thereafter, except when a request by a member of

the public for inspection is pending, to assert that

the public disclosure of any item or items contained

in the report would constitute an unwarranted

invasion of privacy. In determining whether the

public disclosure of an item would constitute an

unwarranted invasion of privacy, subdivision d(2) of

§1106-5.0 requires the Board of Ethics to consider:

™a) whether the item is of a

highly personal nature;

(b) whether the item in any way

relates to the duties of the position

held by such person;

(ce) whether the item involves an

actual or potential conflict of

interest."

The Court of Appeals concluded that this

statutory procedure affords covered employees

adequate protection from unwarranted disclosures,

and noted that out of the twenty-six privacy

requests that have come before the Board of Ethics

for review since 1979 (16a):

"***(slixteen were granted, six

were withdrawn, and one was

‘otherwise disposed of'. Only three

privacy claims were denied,

apparently because insufficient

information was provided in

support of the claims."

In view of the fact that the statute

contains a procedure which protects against the

unwarranted disclosure of highly personal

information and has been construed administratively

in the great majority of cases in favor of employee

requests for privacy, we respectfully submit that

this case does not present any issue concerning the

right of privacy which is worthy of review by this

Court.

Moreover, publie disclosure of financial

interests is accomplished by a method which is least

intrusive to the privacy interests of the covered

officers and employees. The provision is narrowly

drawn to serve only its intended purpose. Precise

disclosure of every aspect of the financial status of

an employee or his spouse is not required. The

provision requires disclosure only with respect to

those financial transactions which may be indicative

of wrongdoing or conflicts of interest, i.e., gifts,

loans, reimbursement of expenditures, income from

services rendered, etc. In addition, disclosure must

be made only when a particular transaction or

interest exceeds a specified minimum amount.

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Thus, for example, an investment need not be

reported unless it is valued at $20,000 or more. The

disclosure report is not a net worth statement, and

the specific amount of a reportable transaction or

interest need not be noted. A covered employee

makes disclosure only within fairly broad dollar

ranges.

The Court of Appeals further held that

the City's interest in public disclosure "outweighs

the possible infringement of plaintiffs’ privacy

interests" (19a). In Hunter v. City of New York,

supra, 58 AD2d 136, 396 NYS2d 186, aff'd 44 NY2d

708, 376 N.E.2d 928, the Appellate Division of the

State Supreme Court stated (at 57 AD2d 137) that

the purpose of §1106-5.0 is to:

"ee*® = €6discourage and _ detect

corruption and the appearance of

corruption, avoid conflicts of

interest and instill in the public a

sense of confidence in the integrity

and impartiality of its public

servants."

The United States Court of Appeals held that the

statute "plainly furthers a substantial, possibly even

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a compelling, state interest" (12a). This Court has

recognized a compelling state interest in the

maintenance of an honest police force and civil

service. Lefkowitz v. Cunningham, 431 U.S. 801,

808 (1977).4

Public disclosure of financial reports is

particularly appropriate in the case of superior

officers of police and fire departments. The

members of the petitioner classes occupy the very

*The Court of Appeals ruled that §1106-5.0 must be

analyzed under an intermediate standard of review

or balancing approach, noting (11a):

"***an intermediate standard of review seems in

keeping both with the Supreme Court's reluctance to

recognize new fundamental interests requiring a

high degree of scrutiny for alleged infringements,

and the Court's recognition that some form of

scrutiny beyond rational relation is necessary to

safeguard the confidentiality aspect."

While we believe that §1106-5.0 meets any

constitutional test, including the compelling state

interest test, this-Court, in Plyler v. Doe, 457 U.S.

202, 217-218 (1982), has indicated that legislation will

be sustained under the intermediate standard of

review if it "may fairly be viewed as furthering a

substantial interest of the state." This would

suggest that a balancing of the interests is not

required under the intermediate level of review.

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highest positions in their uniformed services and are

responsible for making decisions, enforcing laws,

and taking action which directly effects the lives,

safety, and property of every person who lives and

works in New York City. The Court of Appeals

agreed with the District Court's finding that

"{c]orruption and more subtle conflicts of interest

are possible in each group of plaintiff employees"

(14a). The concern addressed by §1106-5.0 is not

limited to the blatant bribe, but relates also to

other forms of inappropriate behavior or conflicts of

interest. For example, a supervisor or his or her

spouse may have investments or a

mortgage in the area of his or her command. A

police surgeon or Fire Department medical officer

may receive payments from insurance companies

hoping to sell injured or disabled officers policies to

supplement their benefits. A person covered by the

provision or his or her spouse may be receiving gifts,

loans, honoraria or reimbursements for expenses

from those he or she must police, regulate or

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otherwise protect, or may have joint business

interests or investments with such persons.

Public disclosure of financial reports

acts as a prod to City government to be continually

aggressive in its anti-corruption and conflicts of

interest efforts. Agencies will be aware that if they

do not’ vigorously investigate evidence of

misconduct revealed by a report, then a newspaper,

a public interest group or a concerned citizen that

has access to the information can hold them

accountable for their failure to act. Thus, public

disclosure makes it more difficult for an agency to

refuse to confront the problems of employee

misconduct. The public, on the other

hand, has a means by which to judge whether City

government is making sincere efforts to guard

against corruption and misconduct. More

importantly, public confidence in its servants will be

greatly enhanced because the _ reports’ will

demonstrate that the vast majority of the officers

and employees are honest. Dishonest officers and

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employees may no longer rely on agency inaction to

protect them from disclosure of misconduct.

Intentional failure to report the information called

for oy the report constitutes a crime which is

punishable by fine or imprisonment. A conviction

for a violation of the reporting requirements of

§1106-5.0 would likely result in an automatic

vacatur of a police or fire officer's employment,

pursuant to N.Y. Publie Officers Law, §30, subd.

l(e). See Greene v. McGuire, 683 F. 2d 32 (2nd Cir.,

1982); Pesale v. Beekman, 81 AD2d 590, 437 NYS2d

448 (lst Dept., 1981), aff'd 54 NY2d 707, 426 NE2d

483, 442 NYS2d 989 (1981). Thus, the prospect of

criminal prosecution for intentional violations of the

law and the consequential loss of employment upon

conviction will tend to deter individuals who might

have otherwise engaged in wrongful or questionable

conduct, and can help insure that governmental

services wil be provided (and, in the case of police

officers and firefighters, the law will be enforced)

in an even-handed and nondiscriminatory manner.

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The Court of Appeals agreed with the

City that public disclosure of the reports would have

this salutary effect, holding (20a):

"In this case, we cannot say that it

was unreasonable for the City

Council to conclude that public

disclosure would materially

advance the City's attempt to

prevent corruption and conflicts of

interest.”

Financial disclosure need not, as

petitioners maintain, be limited to those persons

holding elective office or occupying "policymaking"

positions. The threat of corruption and conflicts of

interest are obviously not limited to persons

exercising policymaking authority, and the public's

concern with misconduct extends beyond elected

and policymaking officials. The use of a specific

salary threshold to trigger disclosure is not

improper. In general, salary is directly related to

the importance of the functions of an employee,

and, therefore, unfaithful conduct by persons

earning higher salaries is usually more damaging to

society's interests than misconduct by those earning

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low salaries. Significant numbers of New York City

employees at the $30,000 level (and even below)

occupy positions of great public trust.°

The determination whether financial

disclosure should be required and the categories of

employees to be covered by such a statute should be

left to the appropriate legislative body. In Whalen

v. Roe, supra, this Court stated at 429 U.S. 597:

"State legislation which has some

effect on individual liberty or

privacy may not be held

unconstitutional simply because a

court finds it unnecessary, in whole

or in part. For we have frequently

recognized that individual States

have broad latitude in

experimenting with possible

solutions to problems of vital local

concern.”

°The petitioners in the instant cases earn salaries

which are substantially in excess of the $30,000

threshold. For example, deputy fire chiefs and

deputy police inspectors earn between

approximately $48,000 to $58,000, exclusive of

overtime and fringe benefits. Police captains and

Fire Department battalion chiefs earn between

approximately $43,500 and $51,500, exclusive of

overtime and fringe benefits.

Legislative classifications of this nature are

controlling unless very wide of any reasonable mark.

Buckley v. Valeo, 424 U.S. 1, 83, 103 (1976). The

Court of Appeals concluded that both the categories

of employees required to disclose and the nature of

the disclosure itself is "mitigated by the statute's

privacy mechanism, which permits covered

employees to challenge the proposed release of

irrelevant ‘highly personal' information" (21a).

Financial disclosure provisions have

withstood constitutional challenge because they

serve an important public need for efficient and

ethical conduct among public employees and instill

public trust and confidence in government by

assuring citizens of the impartiality and honesty of

their servants. See Duplantier v. United States,

supra, 606 F.2d at 671-673; Plante v. Gonzalez,

supra, 575 F.2d at 1135; O'Brien v. DiGrazia, 544 F.

2d 543 (1st Cir., 1976), cert. den. sub. nom. O'Brien

v. Jordon, 431 U.S. 914 (1977); Montgomery Co. v.

Walsh, supra, 336 A.2d 97, (Ct. of Apps., Md., 1975)

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app. dism'd 424 U.S. 901 (1976); Fritz v. Gorton,

517 P.2d 911 (Sup. Ct., Wash., 1974) app. dism'd 417

U.S. 902 (1974); Stein v. Howlett, 289 N.E.2d 409

(Sup. Ct., [ll., 1972) app. dism'd 412 U.S. 925 (1973);

Illinois State Employees’ Assn. v. Walker, supra, 315

N.E. 2d 9 (Sup. Cleo Ill, 1974), cert. den. 419 U.S.

1058 (1974); Gideon v. Alabama State Ethics

Commission, 379 So. 2a 570 (Sup. Ct., Ala., 1980);

Opinion of the Justices to the Senate, 376 N.E.2d

810, 818 (Sup. Jud. Ct., Mass., 1978); Goldtrap v.

Askew, 334 So. 2d 20 (Sup. Ct., Fla., 1976); County

of Nevada v. MacMillen, 522 P. 2d 1345 (Sup. Ct.,

Calif., 1974).

As noted in the above citations, this

Court has consistently declined to review decisions

upholding financial disclosure laws. At page 29 of

the petition in Slevin, it is stated that a number of

those denials took place prior to this Court's

recognition of the confidentiality aspect of privacy

discussed in Whalen v. Roe, supra, 429 U.S. 589 and

Nixon v. Administrator of General Services, supra,

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433 U.S. 425. They fail to note, however, that the

denials of the petitions for certiorari in Plante v.

Gonzalez 2nd Duplantier v. United States took place

after the decisions in Whalen and Nixon.

Duplantier is particularly noteworthy. In

that case, the United States Court of Appeals for

the Fifth Circuit sustained the Ethics in

Government Act of 1978 (P.L. 95-521, which is set

forth in 5 USC App. §201 et seq.; 2 USC §701 et

seq.; 28 USC App. $301 et seq.). Duplantier

concerned the application of that law to federal

judges. The Ethics in Government Act requires that

certain members of the executive, legislative and

judicial branches of the federal government file

annual financial disclosure reports:

"***containing a full statement of

assets, income, and liabilities, and

those of their spouses and

dependent children.” (Duplantier v.

United States, 606 F. 2d at 659)

The federal act makes the reports

available for public inspection (28 USC App. $305; 5

USC App. §205; 2 USC §704), but unlike the statute

challenged in the instant case, it does not require

that the person filing the disclosure report be

notified prior to public disclosure, nor may such a

person assert a claim that the public disclosure of

an item contained in the report would constitute an

unwarranted invasion of privacy. The Court of

Appeals in the instant case relied on Duplantier in

stating (18a):

"We note by way of comparison

that courts have upheld financial

disclosure laws that hit much

closer to home and do not have any

similiarly broad privacy

mechanism."

At page 30 of the petition in Slevin, the

petitioners incorrectly state that the issue:

"*** presented in this case is

whether every public employee and

his/her spouse may be required,

consistently with the Constitution,

to reveal at large all personal

information as a condition of

employment." (Emphasis added.)

All that is at issue in this case is whether §1106-5.0

is constitutional as applied to the members of the

petitioner classes, high ranking uniformed officers

of the Police and Fire departments (Slevin petition,

p. 2; Barry petition, p. 3). The provision does not

mandate that "all personal information" be revealed,

but rather only certain specified financial

transactions by them and their spouses which might

be used as covers for wrongdoing or conflicts of

interest. Nor must all the information contained in

the reports be "revealed at large". We have stressed

throughout that a covered employee may avoid

public disclosure of any highly personal item

contained in the report which is unrelated to his or

her duties and which does not indicate a conflict of

interest, and that the vast majority of privacy

applications which have come before the Board of

Ethics for review have been decided in favor of the

employee.

In view of the findings by the Court of

Appeals that the statute serves very important

-39-

governmental interests and is sensitive to the

legitimate privacy interests of the employees to

whom it applies, we respectfully submit that review

by this court is unwarranted.

CONCLUSION

The petitions for certiorari should be denied.

November 18, 1983

Respectfully submitted, “

FREDERICK A. O. SCHWARZ, JR.,

Corporation Counsel of the

City of New York,

Attorney for the Respondents

100 Church Street,

New York, New York 10007

LEONARD KOERNER,

PAUL T. REPHEN,

| of Counsel.

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