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OGC 5: Testimony by Department Employees in Judicial Proceedings

New York State Department of Environmental Conservation

DEC Program Policy

Issuing Authority: Office of General Counsel
Title: Testimony by Department Employees in Judicial Proceedings
Date Issued: October 5, 2006
employees Date Revised:

I. Summary

This policy provides guidance to Department employees who have been subpoenaed to give testimony in a judicial proceeding.

II. Policy

It is the policy of the Department that employees may not testify as an expert witness in private litigation with respect to subject areas relating to their employment. Employees may testify concerning matters related to their employment or responsibilities with the Department at the request of a Department Attorney or Assistant Attorney General. In all other situations, regardless of whether factual or expert testimony is sought, the employee may only testify if properly served with a subpoena (which means personal service on the individual or service upon a person of suitable age and discretion, followed by a mailing) and provided that the subpoena is accompanied by fees as required by law. If an employee is not properly served, a Department Attorney or Assistant Attorney General will seek to have the subpoena quashed in accordance with provisions of the CPLR.

Unless directed by a judge, a Department employee who has been subpoenaed may not testify as to anything other than facts of which the employee has personal knowledge. The Department employee may not give expert or opinion testimony or to answer hypothetical questions. A Department employee may properly testify solely on factual issues of which the employee has personal knowledge. For example, if an employee is subpoenaed and is asked whether particular actions constitute violations of the Environmental Conservation Law or Department regulations, such testimony is not properly obtained pursuant to subpoena. Similarly, if an employee is asked whether the Department would have granted a permit for certain activity if an application had been made it been, the employee is not required to answer such a question.

In situations where a current Department employee is subpoenaed to testify as either factual or expert witness, it is the Departments' policy that the employee will be afforded legal counsel by either the Department's Office of General Counsel and/or the Office of the New York State Attorney General. When a private party subpoenas a Department employee, the relevant Program or Regional Attorney should be consulted to determine whether Department records would adequately meet the party's needs. If this is the case, the private party may seek a judicial subpoena duces tecum and certified records may be submitted pursuant to CPLR §2307 in lieu of staff testimony. The appropriate Program or Regional Attorney will make this determination and contact the private party to make alternative arrangements for furnishing Department records in lieu of an employee as a witness.

III. Purpose and Background

The purpose of this Policy is to provide Department employees with policy guidelines regarding testimony in, or affidavits for, judicial proceedings arising out of, or relating to, their employment with the Department.

Many employees with the Department are experts in various scientific, engineering, and environmental fields. Department employees are called upon to testify or provide affidavits, as expert and/or factual witnesses, in generally four different types of proceedings:

  1. in administrative or judicial proceedings involving the Department;
  2. in administrative or judicial proceedings involving another state agency;
  3. in criminal cases and grand jury appearances for District Attorneys, U.S. Attorneys, and the New York State Attorney General; or
  4. in private litigation on matters involving subject areas related to the employee's employment or regulated activities where the Department is not a party to such litigation.

In a proceeding where an employee is being called upon to testify or prepare affidavits on behalf of the Department (#1 above), the employee will be represented by a Department Attorney (and most likely and Assistant Attorney General). Testimony on behalf of the Department's position in the proceeding or litigation is not the subject of this Policy.

In the circumstance where an employee is subpoenaed to appearing administrative proceedings or litigation involving another state agency (#2 above), a determination must be made whether a degree of cooperation may be appropriate in a particular proceeding. In such cases, the employees will be represented by a Department Attorney or Assistant Attorney General.

When an employee is testifying or preparing affidavits involving a criminal prosecution for violations of the Environmental Conservation Law (#3 above), the employee will be represented by either a Department Attorney or the assigned prosecuting attorney.

In a proceeding where an employee is subpoenaed to appear in, or requested to provide affidavits for, private litigation as factual or expert witness on subject matters related to Department employment or regulation (#4 above), several issues arise. The Department must maintain a position of impartiality during litigation in which it is not a party. If employees are asked to testify as expert witnesses, it may appear to show favoritism to one party in the litigation and utilize State resources to support a private concern. Expert testimony by the Department's employees could also lead to conflicts of interest for employees who are acting as both regulator of, and an expert witness, for the same party. One example of where this conflict could arise is when an employee who testified as an expert witness for one of the involved parties at a site, acts as a regulator of the same party at another site.

Additionally, if Department staff could be subpoenaed at will, the Department' day-to-day activities could be disrupted. If the opinion testimony of such employees were available to private litigants, employee resources would be strained in providing such testimony. In order to conserve scarce public resources, the Department's staff must be allowed to concentrate on day-to-day activities, rather than being constantly called on to provide expert witness information. For these reasons, legal staff will move to quash the subpoena and prevent such testimony.

If an employee is asked to testify on factual issues, the Department's role as an impartial regulator could also be affected, since the Department typically must address concerns affecting the general public and not one particular interest. However, staff may be compelled by subpoena to testify as factual witnesses. If so, they will be represented by a Department Attorney or Assistant Attorney General.

IV. Procedure

A. General

  1. When a current employee is personally served with a subpoena to testify on any matters related to employment with the Department, the employee must immediately notify the appropriate supervisor and Program or Regional Attorney, whichever is applicable.
  2. The Program or Regional Attorney is responsible for making a determination, based on the circumstances, whether it is necessary to make a referral to the Department of Law to request that the Attorney General seek to quash the subpoena, and to ensure that the employee is afforded adequate legal counsel. If the Program or Regional Attorney determines that a referral is necessary, the Department of Law should be contacted by telephone as soon as possible and prior to preparing the referral. This will ensure that the Department of Law has adequate time to respond to the subpoena.
  3. A witness fee and travel expenses are typically provided in advance of honoring the subpoena. Employee should forward the subpoena check to the appropriate fiscal manager, to be applied towards agency reimbursement of travel expenses and time out of the office. Employees who testify will be paid for this time as if it were a normal work function.

B. Information Requested by AAG or DEC Attorney

  1. An Assistant Attorney General or Department attorney may ask a DEC employee to testify in court or to prepare an affidavit to assist the State's position in a legal proceeding. In these situations, the DEC employee will typically be familiar with the matter and be aware well in advance that the request will be made.
  2. The DEC program attorney who serves as liaison with the State Attorney General's Office should always be informed of a request made by the Attorney General's Office for testimony or an affidavit.
  3. If a Department of employee believes there are problems presented by the request, the employee should discuss them with the Program or Regional Attorney working on the matter. Examples would include situations where: (i) the employee feels uncomfortable about making a sworn statement because of uncertainty of the facts and/or conclusions to be drawn therefrom; (ii) the employee believes they are incapable of supplying the information because of lack of knowledge on the subject or expertise in the area. (e.g., there is someone better qualified to respond); and (iii) the employee has schedule or time constraints (which should also be discussed with the relevant supervisor).
  4. Although an employee may be asked by an Assistant Attorney General to draft their own affidavit or prepare their own testimony, the Department employee should always seek assistance or guidance from the applicable Program or Regional Attorney, as well as the Assistant Attorney General.

C. Information Requested by a Party

  1. If a Department employee is subpoenaed to testify by a party in litigation, the subpoena should be reviewed by a Department Attorney to determine whether both the document and the manner of its service are lawful and proper. A Department employee cannot accept service of a subpoena intended for another Department employee without the express authorization of the employee named in the subpoena.
  2. The appropriate Department Attorney should make the other units within the Department aware of the subpoena in case any of them have an interest in the matter, as well as other agencies.
  3. The appropriate Department Attorney, in conjunction with the Assistant Attorney General, if applicable, can deal with the party issuing the subpoena on such issues as scheduling, having the prospective witness placed "on call", and substituting a more appropriate witness for the subpoenaed employee.

V. Related References

This policy supersedes and replaces the September 28, 1978 Department Memorandum on this subject by Philip H. Gitlen, and the October 3, 1978 Policy and Procedure on this subject by Langdon Marsh.

VI. Responsibility

The responsibility for interpretation and update of this document shall reside with the Office of General Counsel.

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