Supreme Court justice Richard Mott this week returned his ruling on the legal dispute between the offices of county comptroller March Gallagher and county executive Jen Metzger, siding with Gallagher. Metzger turned over the documents sought by a subpoena filed by the comptroller on December 22, as the judge had sought.
The documents pertain both to the findings of a 2021 investigative report looking into the behavior of former finance commissioner Burt Gulnick and complaints made about him to the corporate compliance hotline.
Conducted on behalf of Ulster County without the knowledge of the legislature, and named for two out of four partners of the Albany-based law firm Roemer, Wallens, Gold & Mineaux, the Roemer-Wallens report was commissioned by then-county executive Pat Ryan in response to concerns raised by Gallagher after complaints regarding Gulnick’s conduct.
The findings of the report have never been released to the public, to the legislature, or to the comptroller.
Ryan did provide Gallagher with his own summary of the report, advising that no financial wrongdoing had been uncovered. Despite Gallagher’s frequently communicated desire to inspect them, Ryan never disclosed the complete findings of the investigation. Gallagher continued agitating for full disclosure.
“On January 17, [2023] when I sat down with [Metzger] when she first started, I handed her a package of every red-flag memo I’ve written going back to 2021,” Gallagher recalled, “and I told her this guy is a risk to the county, and I’m concerned about it. And I’m particularly concerned about this report I’ve never seen. She told me in our next meeting that she had read the report and, quote, ‘There was nothing in it.’ That doesn’t work for me. Assurances there’s nothing in it doesn’t work for me. If there’s nothing in it, then it should be no problem to share it.”
You need the documents
Gallagher had opened a separate investigation into Gulnick, based on allegations of the former commissioner’s personal debts, the existence of an unauthorized bank account, the modification of time cards to benefit a subordinate with whom it was suggested he was engaged in a potentially inappropriate relationship, and the retaliatory termination of a staff member related to maintaining that relationship.
“This is an investigation that was spurred by documentation and complaints that I elevated. I had begun my own investigation. That’s why I need this,” said Gallagher. “You need the documents.”
A later investigation into the existence of fiscal improprieties perpetrated by the former finance commissioner was conducted by the state comptroller’s office.
Metzger described the far-reaching implications involved with providing the information requested by the comptroller in the areas of precedent, legal prohibition, and the dissemination of protected information — as well as the awareness that anything less than full transparency risked the appearance of a cover-up.
“I have been really collaborative with March from the start, and I think her role is extremely important,” said Metzger. “But it’s important to have clear boundaries when it comes to protected personnel information and when it comes to documents that are attorney-client privileged and protected under those laws.”
“Here’s the thing,” said Gallagher. “There is no rule barring my access to personnel records. I am under the same obligations as anyone in the personnel department to keep those records confidential. But to the extent that I need to see them to do my job, I should have access to them.”
In his ruling, judge Mott agreed in precisely those terms, noting that to the extent that the Roemer-Wallens report may contain information characterized as personnel matters, it did not prevent disclosure to the comptroller, who, as an officer of Ulster County, is obligated to protect the confidentiality of personnel records.
Nor was the report removed from Gallagher’s inspection by the attorney-client privilege. As Ulster County paid for the report, and the comptroller’s office is a unit of the county, the comptroller’s office was thus a client for purposes of the attorney-client privilege.
Keeping confidences
There was also the issue of the records of calls made to the corporate compliance hotline, which Gallagher had requested. Metzger was uncomfortable with the scope of the records requested from the whistleblower hotline
“To request the call logs for whistleblowers on compliance issues can have a chilling effect on people’s willingness to call in things when they know that that information can be accessed by another elected official. To ask for all the call logs of whistleblowers from 2019 on,” said Metzger, “is so broad.”
Here again Justice Mott found that initial reports of complaints made to the “whistleblower hotline” were relevant and necessary to the comptroller’s investigation, Gallagher was obligated to protect such confidential information.
Metzger has acknowledged the justice’s ruling, saying she appreciates the clarity provided by the court, as well as the restatement of the comptroller’s responsibility towards protecting the confidentiality of county employees and whistleblowers.
“I can’t speak toward past administrations,” said Metzger, “but I’m a very by-the-book person. I am also a very transparent person. I’m happy that I have no skin in the game of these things. and I don’t have any reason to withhold anything relating to the matters that they’re investigating.”
The state comptroller’s office’s investigation into the former county finance commissioner which began in March of this year is ongoing.
“I obviously want a thorough investigation into our own finances,” said Metzger. “That’s why I requested the state comptroller to come in because I felt like they had the resources. Our county comptroller’s offices, she does a great job, but it’s a small office and there’s decades of financial transactions and records that need to be looked at. They came in and took filing cabinets and filing cabinets of information. So we’re waiting for the end of that. We all just want closure.”
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