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EVANGELISTA v. CITY OF ROCHESTER

March 6, 1984

Ronald EVANGELISTA, Individually and as President of the Rochester Police Locust Club, Inc., Plaintiff,
v.
CITY OF ROCHESTER, Peter Korn, City Manager, and Delmar Leach, Police Chief, Defendants.



The opinion of the court was delivered by: TELESCA

MEMORANDUM DECISION and ORDER

TELESCA, District Judge.

This action was commenced by plaintiff, individually and as President of the Rochester Police Locust Club (the recognized bargaining agent for police officers in the City of Rochester), pursuant to 42 U.S.C. Section 1983. The complaint seeks declaratory and injunctive relief against the City of Rochester ("City"), City Manager Peter Korn and Police Chief Delmar Leach. Presently before me is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. The plaintiff claims that a questionnaire issued by the Rochester City Manager requiring all City employees to reveal and disclsoe ownership of all properties owned within the City limits (except for a single family residence) is an unconstitutional invasion of privace. I disagree and for the reasons set forth below, the plaintiff's complaint is dismissed.

 FACTS

 The relevant facts are not in dispute. On or about April 25, 1983 defendant Korn sent a questionnaire to all City employees. The preamble of the questionnaire stated that the City was faced with serious housing problems due in part to some property owners maintaining their properties below standard. The preamble went on to state that if sub-standard housing is owned by City employees, a conflict of interest is created and additionally, the employee was in violation of the City's Code of Ethics.

 The questionnaire requests the employee's name, department or bureau and job title. It then asks if the employee owns rental property in the City and finally, requests a listing of all properties located within the City in which the employee has some financial interest, excluding a single family personal residence.

 The complaint states that plaintiff met with the City's Corporation Counsel in regard to the questionnaire and was advised that any employee who did not supply the requested information would be subject to disciplinary action pursuant to Section 75 of the New York Civil Service Law. Plaintiff contends that the questionnaire violates his right to privacy guaranteed under the Fourteenth Amendment of the United States Constitution and seeks a declaration to that effect as well as an injunction preventing the distribution and collection of the questionnaire. Additionally, the plaintiff asserts that Section 75 of the New York Civil Service Law has no application to the disciplining of an employee who fails to complete this questionnaire, and requests that this Court exercise pendent jurisdiction and enjoin defendants from instituting any disciplinary proceedings under this section.

 Defendants assert on this motion that the questionnaire does not constitute an invasion of any right or liability protected by the Fourteenth Amendment and therefore, urge the dismissal of the complaint.

 DISCUSSION

 I.

 The cases which have addressed the "right of privacy" question indicate that the right encompasses two distinct types of interests. "One is the individual interest in avvoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions". Whalen v. Roe, 429 U.S. 589, 598-600, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64 (1977). In Plant v. Gonzalez, the Fifth Circuit termed these two distinct interests, "confidentiality" and "autonomy", respectively. 575 F.2d 1119, 1128 (5th Cir.1978), cert. denied, 439 U.S. 1129, 99 S. Ct. 1047, 59 L. Ed. 2d 90 (1979). It is clear that it is the confidentiality interest which plaintiff contends is being infringed upon by defendants in this case. He argues, rather forcefully, that the City of Rochester has no valid purpose or reason for compelling the disclosure of private financial matters (property ownership) and therefore that information is constitutionally protected.

 A.

 In Barry v. City of New York, 712 F.2d 1554 (2nd Cir.1983), the Second Circuit essentially dealt with this issue in reviewing the constitutionality of a local law passed by the City of New York which compelled disclosure of certain financial information *fn1" by City employees and their spouses. That law required the filing of such information and also provided for public disclosure unless the employee contended that doing so would "constitute an unwarranted invasion of privacy". The law contained a provision for the City Board of Ethics to review the claim of privacy and determine if indeed the information should not be made public. Id. at 1557.

 In deciding whether the filing requirement itself was a denial of the right of privacy, the Second Circuit employed "an intermediate level of scrutiny or balancing approach". Id. at 1559. After reviewing the reasons set forth for the enactment of the law in question, the court concluded that the law furthered a "substantial governmental purpose" and was, therefore, valid. Id. at 1560. The court recognized that privacy ". . . interests will be somewhat affected by the filing requirement, but that governmental interests in deterring and detecting conflicts of interests and venality will be furthered sufficiently to justify that requirement". Id.; Slevin v. City of New York, 551 F. Supp. 917, 931 (S.D.N.Y.1983). In affirming the lower court's decision, the Second Circuit went on to state: "The purpose of the statute is to deter corruption and conflicts of interest among City officers and employees and to enhance public ...


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