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September 5, 1997

ROBERT DiCARLO, et al., Defendants.

The opinion of the court was delivered by: GO

 GO, United States Magistrate Judge:

 Plaintiff, who worked in the offices of defendant and then New York State Senator Robert DiCarlo, claims that defendants unlawfully terminated her employment in violation of various federal, state and local statutes. She has moved to remove the confidential designation placed on several documents produced by defendants DiCarlo, the New York State and the New York State Assembly (collectively called the "State Defendants") pursuant to an order dated April 3, 1997. Plaintiff subsequently narrowed her challenge to only two documents (numbered 18 and 26) which the State Defendant designated as confidential. After considering the submissions and conducting an in camera inspection of the two documents, plaintiff's application is granted.


 The State Defendants allege that plaintiff's employment was terminated as a result of cutbacks in New York State Senate allocations to Senator DiCarlo for his office. When plaintiff sought to examine documents pertinent to the allocations made to Senator DiCarlo, the State Defendants moved for a protective order, claiming that the documents are privileged and normally not subject to either discovery or disclosure under New York's Freedom of Information Law. Public Officers Law, § 88 (McKinney's 1989). In support of their claim, they provided the affidavit dated March 20, 1997 of Stephen F. Sloan, Secretary of the New York State Senate, ("Sloan Aff.") who is in charge of all personnel and spending records.

 Because the State Defendants conceded the relevance of the documents at issue and indicated their willingness to produce the documents as long as plaintiff kept them confidential, I ordered production subject to an order of confidentiality. To insure that plaintiff would not be unduly restricted in the use of any documents, I also gave plaintiff the right to challenge the confidential designation of any documents which led to the instant motion.

 In response, the State Defendants continue to argue that the documents are protected by both the "deliberative process" and "legislative" privilege. They have provided a second affidavit from Secretary Sloan dated June 23, 1997 ("2d Sloan Aff.") reiterating their position that the allocation of State Senate resources among its members is within the sole discretion of the Senate Majority Leader and that documents concerning the allocations have allays been kept confidential. Id. at P 4; Sloan Aff. at P 4. Secretary Sloan further states that the allocation of funds is a continuing process and there "is never a final decision" since unspent monies are reallocated by the Majority Leader. Id. at P 5; Sloan Aff. at P 4.


 Since the main claims in this case arise under federal law, federal law governs the determination whether the disputed documents are privileged. Fed. R. Evid. 501; von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied, 481 U.S. 1015, 95 L. Ed. 2d 498, 107 S. Ct. 1891 (1987); King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988). The burden of justifying application of any privilege falls upon the party seeking to invoke it. von Bulow, 811 F.2d at 144. I will first address defendants' assertion of a "legislative privilege" since the reasons for its inapplicability in this case are pertinent to determining the appropriate scope of the "deliberative process" privilege in this case.

 Legislative Immunity

 The State Defendants argue that the documents are protected by a "legislative privilege" derived from the Speech and Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, and the comparable provision in the New York Constitution. *fn1" Art. 3, § 11 (McKinney's 1987). The Supreme Court has recognized that state legislators enjoy a common-law immunity from civil damages actions for conduct within "the sphere of legitimate legislative activity" that is similar in origin and rationale as the immunity conferred by the Speech and Debate Clause. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-32, 100 S. Ct. 1967, 1974, 64 L. Ed. 2d 641 (1980) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S. Ct. 783, 788, 95 L. Ed. 1019 (1951)). This immunity insures that the "legislative function may be performed independently without fear of outside interference." Id., 446 U.S. at 732, 100 S. Ct. at 1974. Thus the Supreme Court have found persons acting in a legislative capacity to be protected from claims for both damages and injunctive relief under 42 U.S.C. § 1983. Id.

 However, whether state legislative immunity negates liability under a federal statute depends on the intent of Congress. See Supreme Court of Virginia, 446 U.S. at 739, 100 S. Ct. at 1978 (court looked at legislative history of 42 U.S.C. § 1988 to find that Congress did not intend to permit award of fees against state defendants otherwise protected by legislative immunity for their actions). Since Congress provided in Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., that public officials may be liable, courts have found that the common-law immunity of state legislators do not override claims brought under those statutes. Bostick v. Rappleyea, 629 F. Supp. 1328, 1332-33 (N.D.N.Y. 1985), aff'd sub nom, Bostick v. Cochrane, 907 F.2d 144 (2d Cir. 1990) and cases cited therein; see also Davis v. Passman, 442 U.S. 228, 246, 99 S. Ct. 2264, 2277, 60 L. Ed. 2d 846 (1979) (legislative immunity does not necessarily protect Congressman from an employment discrimination suit brought by an aide he fired, unless the conduct itself is shielded by the Speech and Debate Clause). Thus, courts in such cases have focused primarily on whether plaintiffs and state defendants fit the statutory definitions of employee and employer, finding the statutory limitations to be sufficient to accommodate any immunity concerns. Bostick, 629 F. Supp. at 1332. Since the allocation decisions are integral to defendants' purported reasons for termination, it is questionable whether the common-law legislative immunity would apply.

 Moreover, the decisions involved would not otherwise qualify as legislative acts entitled to immunity. The Supreme Court has utilized a functional analysis to determine when immunity is available, in order to insure that immunity is not extended further than its purposes require. Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555 (1988). Legislative immunity covers only legislative acts "generally done in the course of the process of enacting legislation," as distinguished from acts "related to the due functioning of the legislative process." Hutchinson v. Proxmire, 443 U.S. 111, 131, 99 S. Ct. 2675, 2686, 61 L. Ed. 2d 411 (1979) (quoting United States v. Johnson, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966)). It shields the acts that are "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to consideration and passage or rejection of proposed legislation...," but not actions in "executing a legislative order" or "carrying out [legislative] directions." Gravel v. United States, 408 U.S. 606, 620-21, 625, 92 S. Ct. 2614, 2624-25, 2627, 33 L. Ed. 2d 583 (1972).

 As made clear in the two affidavits of Secretary Sloan, the allocation of Senate funds to each Senate member is within the discretion of the Senate Majority leader and not related to the passage of legislation. Under the Senate practice in this case, the Majority Leader is simply administering appropriated funds much in the same manner that an agency official expends funds allocated to the agency by the legislature. Since such decisions are essentially administrative in nature, they are not legislative acts entitled to immunity, even though they may be essential to the functioning of the State Senate. Forrester, 484 U.S. 227-28, 108 S. Ct. at 544-45 (judicial immunity did not protect a judge's administrative decision to demote and discharge an employee); Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988) (executive and administrative actions not protected); see also Supreme Court of Virginia, 446 U.S. at 733-34, 100 S. Ct. at 1975-76 (Virginia Court promulgating bar code had legislative immunity for exercising delegated legislative power). Had the ...

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