United States of America (ex rel), et al v. Westchester County, New York

Filing 633

OPINION AND ORDER......The Monitors March 17, 2016 request to make public the videotapes of 2015 depositions of County officials is granted. The videotapes shall be made available to the public in their entirety. As described in an accompanying sch eduling order, this Order is stayed pending appeal as long as the County pursues its appeal promptly and seeks expedited review. The parties shall promptly inform the Court when the appeal process is complete. (Signed by Judge Denise L. Cote on 6/27/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
UNITED STATES OF AMERICA ex rel. ANTI- :
DISCRIMINATION CENTER OF METRO NEW
:
YORK, INC.,
:
Plaintiff,
:
:
-v:
:
WESTCHESTER COUNTY, NEW YORK,
:
Defendant.
:
----------------------------------------X

06 Civ. 2860 (DLC)
OPINION AND ORDER

APPEARANCES:
For the U.S. Government:
David J. Kennedy
United States Attorney’s Office
86 Chambers Street
New York, NY 10007
For Westchester County, New York:
Robert F. Meehan
Westchester County Attorney’s Office
138 Martine Avenue, 6th Floor
White Plains, NY 10601
DENISE COTE, District Judge:
This dispute arises from a report of James E. Johnson
(“Monitor”) of March 17, 2016 (“Report”).

That Report found

that Westchester County, New York (“County”) has violated ¶
33(c) of the August 10, 2009 Consent Decree (“Consent Decree” or
“Settlement”) between the County and the United States
Department of Justice (“DOJ” or “Government”).

The Monitor

attached to the Report transcripts of depositions of several
County witnesses that were taken in 2015.

The Government and

the Monitor seek to make the videotapes of those depositions
publicly available, and the County opposes their doing so.

As

described below, the County has breached ¶ 33(c) of the
Settlement.

The Government and the Monitor’s application to

release the videotapes of the depositions to the public is
granted.

The County’s application for a stay of this Order

pending appeal is also granted.
Background
The procedural history giving rise to this dispute has been
described in several previous opinions issued by this Court and
the Second Circuit Court of Appeals.

See, e.g., United States

ex rel. Anti–Discrimination Ctr. of Metro N.Y., Inc. v.
Westchester Cnty., 495 F. Supp. 2d 375 (S.D.N.Y. 2007) (denying
motion to dismiss False Claims Act lawsuit against the County);
United States ex rel. Anti–Discrimination Ctr. of Metro N.Y.,
Inc. v. Westchester Cnty., 668 F. Supp. 2d 548 (S.D.N.Y. 2009)
(“2009 Opinion”) (finding that County’s Certifications to obtain
CPD Funds were false but reserving on County’s scienter); U.S.
ex rel. Anti–Discrimination Ctr. of Metro New York, Inc. v.
Westchester Cnty., N.Y., No. 06cv2860 (DLC), 2012 WL 1574819
(S.D.N.Y. May 3, 2012) (adopting Monitor’s conclusions in part
and Magistrate Judge’s opinions in part); United States ex rel.
Anti–Discrimination Ctr. of Metro N.Y., Inc. v. Westchester
Cnty., 712 F.3d 761 (2d Cir. 2013) (“2013 Appeal Opinion”)
2

(affirming holding that the County had breached promotion
requirement); Cnty. of Westchester v. U.S. Dep’t of Hous. &
Urban Dev., No. 13cv2741 (DLC), 2013 WL 4400843 (S.D.N.Y. Aug.
14, 2013) (dismissing APA claims for lack of jurisdiction and
statutory claim for pleading deficiency); Westchester v. U.S.
Dep’t of Hous. & Urban Dev., 778 F.3d 412 (2d Cir. 2015)
(vacating in part 2013 Opinion and remanding on issue of
jurisdiction); Cty. of Westchester v. U.S. Dep’t of Hous. &
Urban Dev., 116 F. Supp. 3d 251 (S.D.N.Y. 2015) (“2015 Opinion”)
(holding that HUD’s administration of grant programs at issue
was lawful); Cty. of Westchester v. U.S. Dep’t of Hous. & Urban
Dev., 802 F.3d 413, 418 (2d Cir. 2015) (“2015 Appeal Opinion”)
(affirming this Court’s finding that HUD did not violate federal
administrative law); United States ex rel. Anti-Discrimination
Ctr. of Metro New York, Inc. v. Westchester Cty., No. 06cv2860
(DLC), 2016 WL 3004662 (S.D.N.Y. May 24, 2016) (“2016 Opinion”)
(finding principally that the County met its 2014 “financing in
place” benchmark and that the County breached ¶ 7(i)-(j) of the
Settlement).

The Court assumes familiarity with those Opinions.

Only the facts necessary to resolve the present dispute are
described below.
A. False Claims Act Litigation and the 2009 Consent Decree
This litigation began in 2006 when the Anti-Discrimination
Center of Metro New York, Inc. (“ADC”) sued the County as a qui
3

tam relator under the False Claims Act (“FCA”), 31 U.S.C. § 3729
et seq.

ADC claimed that the County received more than $52

million from the federal government for housing and community
development after falsely certifying that it affirmatively
furthered fair housing (“AFFH”).

In the 2009 Opinion, the Court

ruled that the County’s certifications to HUD were false as a
matter of law.

668 F. Supp. 2d at 571.

The Government

intervened after the 2009 Opinion was issued but before the
remaining issues in the case were tried, and the County entered
into a Consent Decree with the United States Department of
Housing and Urban Development (“HUD”) on August 10, 2009.
The Consent Decree consists of thirty-eight pages.

In

executing the Settlement, the County assumed many obligations.
The County is required to spend approximately $51,600,000 as a
remedy for violating the False Claims Act.

As described in

detail in the 2016 Opinion, the Consent Decree also requires the
County to ensure the development of 750 new affordable housing
units.

Settlement ¶¶ 7, 23.

Paragraph 7 makes it clear that

the 750 new units are meant both to increase access to
affordable housing and to improve racial diversity in the
County.

To that end, ¶ 7 requires that the units meet certain

locational criteria.

For example, ¶ 7(a)(i) requires that 630

units be in municipalities that have a “single race AfricanAmerican only” population of less than 3% and a Hispanic
4

population of less than 7%.
at *2.

See 2016 Opinion, 2016 WL 3004662,

Thus, most of the affordable units must be developed in

areas with populations that are overwhelmingly white, signifying
that a key goal of the Settlement is to increase the County’s
racial diversity. 1

The Consent Decree further provides that a

Monitor be appointed to ensure the County’s compliance with its
terms.

Settlement ¶¶ 9-10.

Three other provisions of the Settlement are particularly
pertinent to the current dispute.

The Consent Decree requires

that the County submit to HUD an acceptable analysis of
impediments to fair housing choice (“AI”).

Paragraph 32 of the

Settlement provides that the “County shall complete, within one
hundred twenty (120) calendar days of the entry of this [Consent
Indeed, ¶ 22(f) further provides that, in crafting its
implementation plan for the Consent Decree, the County was
required to “[a]ssess the means by which the County can maximize
the development of [AFFH] units in the eligible municipalities
. . . with the lowest concentrations of African American and
Hispanic residents.” The County’s responsibility to prioritize
developing affordable housing in overwhelmingly white areas,
thus reducing racial segregation, is clear from multiple
provisions throughout the entire Settlement. See, e.g.,
Settlement ¶ 25(a)(ii) (requiring a model zoning ordinance to
contain “standards for affirmative marketing of new housing
developments to ensure outreach to racially and ethnically
diverse households”); ¶ 28(a)-(b) (requiring the County to
include, in its quarterly report, “the racial and ethnic
demographic information of the municipality” where AFFH units
are being developed and “racial and ethnic demographic
information of the occupants of the [AFFH] units”); ¶ 31(a)
(requiring the County to adopt a policy statement providing that
“the elimination of discrimination,” including “de facto
residential segregation are official goals of the County’s
housing policies and programs”).
1

5

Decree], an AI within its jurisdiction that complies with the
guidance in HUD’s Fair Housing Planning Guide.”
“AI must be deemed acceptable by HUD.
actions identified in the AI.”

Further, the

The County shall take all

Settlement ¶ 32.

The County was

required to include the following in the AI:
(1)
(2)

A commitment “to collecting data and undertaking other
actions necessary to facilitate the implementation of
this [Consent Decree]” (¶ 32(a));
Identify and analyze, inter alia:
a. “the impediments to fair housing within its
jurisdiction, including impediments based on race or
municipal resistance to the development of affordable
housing” (¶ 32(b)(i));
b. “the appropriate actions the County will take to
address and overcome the effects of those impediments”
(¶ 32(b)(ii)); and
c.
“the potential need for mobility counseling, and the
steps the County will take to provide such counseling
as needed.” (32(b)(iii)).

Second, ¶ 33 of the Settlement requires the County to
undertake a series of specific activities addressed to public
opinion about affordable housing and racial diversity as well as
marketing of affordable housing units.

Specifically, ¶ 33(c) of

the Settlement provides that:
As part of its additional obligations to AFFH, the
County also shall . . . (c) create and fund campaigns
to broaden support for fair housing and to promote the
fair and equitable distribution of affordable housing
in all communities, including public outreach
specifically addressing the benefits of mixed-income
housing and racially and ethnically integrated
communities.
Paragraph 33(h) provides that the County must “pay for
consultants and public education, outreach, and advertising to
6

AFFH, as described in this paragraph, out of County resources
and [Community Development Block Grant (“CDBG”)] funds over five
years . . . in an amount not less than [$400,000].” 2
Third, there are provisions of the Consent Decree that
require the County to take legal action against municipalities
under certain circumstances.

As discussed in detail in the 2016

Opinion, 2016 WL 3004662, at *3, *16-*18, ¶ 7(j) of the Consent
Decree imposes on the County certain obligations that are
triggered by municipal inaction or resistance to developing new
affordable housing units that are part of the 750-unit
requirement.

In circumstances where a municipality “does not

take actions needed to promote the objectives of this paragraph,
or undertakes actions that hinder the objectives of this
paragraph, the County shall use all available means as
appropriate to address such action or inaction.”
include “pursuing legal action.”

This may

Paragraph 7(j) also provides

that the “County shall initiate such legal action as appropriate
to accomplish the purpose of this [Settlement] to AFFH.” 3
The CDBG program was established pursuant to 42 U.S.C. §§ 53015321. The primary objective of the CDBG program is to provide
high-quality housing to people of low and moderate incomes.
CDBG applicants must certify that the grantee will use the money
to AFFH. See 2015 Opinion, 116 F. Supp. 3d at 257.
2

In context, the phrase “such legal action” appears to refer
back to specific “legal action” addressed to municipal
resistance to building the 750 units, the development of which
is governed by ¶ 7. The subparagraphs of ¶ 7 explicitly
3

7

Similarly, ¶ 15 of the Settlement governs the Monitor’s biennial
assessments of the County’s compliance with the Settlement.

In

making these assessments, the “Monitor may consider any
information appropriate to determine whether the County has
taken all possible actions to meet its obligations . . .
including, but not limited to, . . . if necessary, taking legal
action.” 4
It has been nearly seven years since the County agreed to
submit an acceptable AI to HUD, and it failed to fulfill this
obligation.

The 2011, 2013, and 2015 litigation surrounding the

County’s series of attempts to submit an acceptable AI is
chronicled in detail in the 2015 Appeal Opinion, 802 F.3d at
420-27.

For the purposes of this Opinion, it is sufficient to

emphasize that the County failed to comply with HUD’s
requirements for a successful AI, in part by relying on
“inaccurate data, conduct[ing] flawed analysis concerning
whether zoning laws within the County were exclusionary, and
fail[ing] to propose strategies for overcoming exclusionary
zoning laws in certain municipalities.”

Id. at 425.

As a

describe “the terms and conditions” under which the County is to
“ensure the development of” the 750 new units.
In the sixth Whereas Clause of the Settlement, the County also
generally “agree[s] and acknowledge[s] that . . . it is
appropriate for the County to take legal action to compel
compliance if municipalities hinder or impede the County in its
performance” of its duties, “including the furtherance of the
terms of this [Consent Decree].”
4

8

result, the County has already lost access to approximately $25
million in funding from various federal programs, including CDBG
funds.
B. 2011-2014: Public Statements by County Officials About
Local Zoning and HUD
The Report provides a detailed account of certain public
statements made by County Executive Robert Astorino (“Astorino”)
concerning HUD, the AI, zoning, and the Settlement.

Those

statements are summarized here, as they were without objection
during the May 23, 2016 conference.

In general, the Monitor’s

view is that Astorino misrepresented the duties imposed on the
County by the Consent Decree, thereby undermining the Decree and
breaching its terms.

Those alleged misrepresentations fall into

three main categories.
The principal statements at issue in the first category
involve Astorino’s repeated claims that HUD and the Monitor want
to require the County to construct 10,768 affordable housing
units, well above the 750-unit obligation in ¶ 7 of the
Settlement.

The second category of statements involves

Astorino’s assertion that the true cost of the Settlement is
somewhere between $700 million and $1 billion, when the Consent
Decree in fact provides that the County spend only a fraction of
that amount in furtherance of the Settlement.

The third type of

statement involves Astorino’s claim that HUD is attempting to

9

force the County to sue each municipality to dismantle local
zoning and build high rises.

Specifically, on several occasions

Astorino claimed that HUD seeks to control local communities by
eliminating all restrictions on “height, size, acreage, density,
number of bedrooms, and lack of water or sewers.”

Astorino

claimed that, by insisting on an acceptable AI that analyzed
zoning, HUD planned to infringe on the “fundamental right of our
cities, towns, and villages to plan and zone for themselves.”
As described above, the Settlement in fact does not require the
County to sue each municipality, or to dismantle municipal
zoning laws in order to construct high rise residential
buildings.

See 2015 Appeal Opinion, 802 F.3d at 433-34.

C. 2014: Depositions of County Officials Compelled
On March 17, 2014, the Monitor sent a request for
information (“RFI”) to the County.

That RFI requested

information regarding the County’s compliance with ¶ 33(c).
response, the County produced certain documents.

In

On June 26,

2014, the Monitor moved to compel certain County officials to
submit to depositions pursuant to ¶¶ 13(g) and 58 of the
Settlement.

The County opposed the motion on July 14, and it

became fully submitted on July 22.

At a conference on July 24,

2014, the Court granted the Monitor’s motion to compel sworn
depositions of County witnesses.

At that conference, the Court

ordered that the depositions be videotaped.
10

Those videotapes

would remain confidential unless the Court granted an
application for their release after providing the parties with
an opportunity to be heard.

The Monitor took depositions from

four County officials in 2015.

Those depositions concerned the

public statements described above as well as the County’s
efforts to create a public education campaign concerning
affordable housing as required by ¶ 33(c) of the Settlement.
D. 2015: One Community Campaign
The County launched the One Community Campaign (“Campaign”)
in the fall of 2015, approximately six years after the County
assumed the responsibility in ¶ 33(c) to create and fund
campaigns to broaden support for fair housing, among other
goals.

It is the County’s only developed attempt to date to

create and implement such a campaign. 5
The Campaign consists of a website.

The website contains

(1) a “letter of introduction from the County Executive that
highlights the themes of the campaign, including the benefits of
diversity and fair housing;” and (2) “links to various web-based
resources for, among other things, understanding the importance
In 2012, the County attempted to implement a Fair Housing
Poster Initiative. That attempt was abandoned after focus
groups strongly disapproved of the proposed posters. The
Monitor and the County disagree about whether this campaign was
directed at satisfying ¶ 33(c) or some other provision of the
Settlement; however, there is no dispute that the poster
campaign was abandoned and the County used posters generated by
HUD and the National Fair Housing Alliance instead.
5

11

of fair and affordable housing and diversity.”

The Campaign is,

according to the Monitor, the County’s first public education
campaign that specifically mentions the benefits of diversity.
The Campaign’s website contains resources for the public related
to affordable housing and lists some of the benefits of
“affordable, mixed-income housing and racially and ethnically
diverse neighborhoods.”

There is also an “affordable housing

gallery” that contains images of affordable housing units to
show that they “look no different from market-rate housing and
fit right into their neighborhoods.”
The Campaign is also advertised through posters in bus
shelters, placards on buses, and two large posters at the
Westchester County Airport.

The Campaign apparently did not

involve any public events with County officials or other
leaders, press releases highlighting its message, or appearances
by distinguished visitors that would attract public notice.
E. 2016: Monitor’s Report on Compliance with ¶ 33(c)
The Report argues that the County has breached ¶ 33(c) in
two principal ways.

The first is that the County failed to

launch a public education campaign prior to the Campaign, and
that the Campaign itself is insufficient to satisfy ¶ 33(c).
The Monitor’s second argument is that, by making negative and at
times misleading public statements about the Consent Decree, the
County violated its duty to educate the public accurately about
12

the benefits of affordable housing.

Specifically, the Monitor

argues that “[a]ny reasonable effort to discharge [¶ 33(c)
duties] includes the obligation to speak accurately about the
terms and implications of the Settlement.”

The Monitor contends

that the County essentially campaigned against implementing key
provisions of the Consent Decree by making negative public
statements in the press, at local government gatherings, and
elsewhere.

In sum, according to the Monitor, “the County cannot

claim to have discharged its duty to educate the public about
the benefits of integration and fair housing while repeatedly
disseminating false and misleading information about efforts to
achieve those very goals.”
The Report contains several requests for relief. 6

The

Monitor’s request to make the videotapes of the depositions

The Monitor’s requested remedies also include: (1) a Court
declaration emphasizing the essential terms of the Settlement
and findings making clear that none of those terms have changed,
thereby rendering Astorino’s statements false; (2) a Court order
requiring the County to distribute the declaration to leaders in
the eligible communities; (3) the County posting the declaration
prominently on its website; and (4) hiring a consultant to craft
a message and implement a campaign strategy that complies with
¶ 33(c). On May 23, the Court ordered the County to retain a
public relations consultant and work with the Monitor and the
Government to craft a public information campaign that satisfies
the County’s obligations under ¶ 33(c). The County did not
object to this solution. It notified the Court on June 10 that
it has retained the firm of Thompson & Bender to assist in
improving the One Community Campaign. The County’s submission
to the Court about its plan for improving the One Community
Campaign is now due on July 1. The Court declines to decide
6

13

publicly available is being litigated here.

In its May 9

submission concerning the Report, the County requested that the
videotapes remain confidential.

On May 23, the Court gave the

County an opportunity to designate specific passages in the
videotapes that it believed should be redacted because of their
sensitivity.

On June 13, the County responded but did not

designate passages that it deemed particularly sensitive.
Instead, it argued again that the videotapes should remain
sealed in their entirety. 7

Also on June 13, the Monitor and the

Government filed letters in support of disclosing the videotapes
to the public.
Discussion
“Consent decrees reflect a contract between the parties (as
well as a judicial pronouncement), and ordinary rules of
contract interpretation are generally applicable.”
Opinion, 712 F.3d at 767 (citation omitted).

2013 Appeal

“This requires

that deference be paid to the plain meaning of the language of a
decree and the normal usage of the terms selected.”
(citation omitted).

Id.

Relevant provisions of the Consent Decree

must not be considered “in isolation,” but rather “in the light
whether the Monitor’s other requests for relief are appropriate
at this time.
Technically the videotapes are not currently “sealed” because
they have never been submitted to the Court. This term is used
here as the parties use it -- to refer to the County’s request
to keep the videotapes inaccessible to the public.
7

14

of the obligation as a whole and the intention of the parties
manifested thereby.”

Id. (citation omitted).

The Court also “has inherent power to enforce consent
judgments, beyond the remedial ‘contractual’ terms agreed upon
by the parties.”

E.E.O.C. v. Local 580, Int’l Ass’n of Bridge,

Structural & Ornamental Ironworkers, Joint Apprentice-Journeyman
Educ. Fund, 925 F.2d 588, 593 (2d Cir. 1991); see NLRB v. Local
3, Int’l Bhd. of Elec. Workers, 471 F.3d 399, 406 (2d Cir.
2006).

In other words, consent decrees “are construed largely

as contracts, but are enforced as orders.”

Berger v. Heckler,

771 F.2d 1556, 1568 (2d Cir. 1985).
This is so because, “[u]nlike a private agreement, a
consent judgment contemplates judicial interests apart from
those of the litigants.”

Local 580, 925 F.2d at 593.

Indeed,

“[u]ntil parties to such an instrument have fulfilled their
express obligations, the court has continuing authority and
discretion -- pursuant to its independent, juridical interests - to ensure compliance.”

Id.

To ensure such compliance, a

court may use its broad discretionary power to fashion equitable
remedies “even absent a finding of contempt.”
at 1569.

Berger, 771 F.2d

Therefore, a court’s interest “in protecting the

integrity of a consent decree justifies any reasonable action
taken by the court to secure compliance.”

CBS Broad. Inc. v.

FilmOn.com, Inc., 814 F.3d 91, 101 (2d Cir. 2016) (citation
15

omitted).

This “inherent power to enforce a consent judgment

extends beyond the remedial contractual terms agreed upon by the
parties.”

Id. (citation omitted).

Ultimately, “though a court

cannot randomly expand or contract the terms agreed upon in a
consent decree, judicial discretion in flexing its supervisory
and enforcement muscles is broad.”

2013 Appeal Opinion, 712

F.3d at 767 (citation omitted); King v. Allied Vision, Ltd., 65
F.3d 1051, 1058 (2d Cir. 1995) (finding that a “district court
has broad equitable discretion to enforce the obligations of the
decree”).

These powers must be exercised in light of the

general principle that a court may not supplement the terms of
the Consent Decree.

E.g., Pandora Media, Inc. v. Am. Soc. of

Composers, Authors & Publishers, 785 F.3d 73, 77 (2d Cir. 2015)
(“A court may not replace the terms of a consent decree with its
own.” (citation omitted)).
I.

Breach of ¶ 33(c)

The County has breached ¶ 33(c) by failing timely to
create, fund, and implement adequate public information
“campaigns” to “broaden support for fair housing and to promote
the fair and equitable distribution of affordable housing in all
communities, including public outreach specifically addressing
the benefits of mixed-income housing and racially and ethnically
integrated communities.”

The evidence of this breach is

compelling and largely uncontested.
16

The only program crafted by the County that might qualify
as any of the “campaigns” described in ¶ 33(c) is the Campaign
it launched in 2015.

This was the County’s first meaningful

attempt to fulfill its ¶ 33(c) obligation to “create and fund
campaigns” addressed to the issues described in that paragraph.
The Report identifies several specific failings in the Campaign:
it did not include public events with County leaders, press
releases, or other attempts to attract public attention. 8

The

Campaign essentially involves a dedicated section of the
County’s website and some posters in bus shelters and the
Westchester County Airport.
Moreover, the County’s delay in designing and launching the
Campaign breached ¶ 33(c), although the Consent Decree does not
prescribe a particular time within which the County must
implement such campaigns.

“Where a contract does not specify a

date or time for performance, New York law implies a reasonable
time period.”

Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir.

The Campaign compares unfavorably with other public engagement
campaigns created and conducted by the County that are unrelated
to the Settlement, including Safer Communities and the
Westchester Smart campaigns. Safer Communities is a public
safety campaign that was launched in February 2013 in response
to the mass shooting at Sandy Hook Elementary School in Newtown,
Connecticut. The County launched Westchester Smart in January
2015, and it is an economic development campaign that included
five specific initiatives and goals. Both of these more robust
campaigns involved coordinated efforts including press releases,
reports, celebrity appearances, and symposia. The Monitor
suggests that the Campaign concerning affordable housing should
include at least some of these elements to satisfy ¶ 33(c).
8

17

2007).

“What constitutes a reasonable time for performance

depends upon the facts and circumstances of the particular
case.”

Savasta v. 470 Newport Associates, 82 N.Y.2d 763, 765

(1993); see Baisch, Inc. v. Pike Co., 959 N.Y.S.2d 786, 787 (4th
Dep’t 2013) (same).

“Included within a court’s determination of

reasonableness are the nature and object of the contract, the
previous conduct of the parties, the presence or absence of good
faith, the experience of the parties and the possibility of
prejudice or hardship to either one,” among other factors.

Zev

v. Merman, 73 N.Y.2d 781, 783 (1988); see 184 Joralemon, LLC v.
Brooklyn Heights Condos, LLC, 985 N.Y.S.2d 588, 591 (2d Dep’t
2014) (same).
A reasonable time for performance of the County’s ¶ 33(c)
duties has lapsed.

The County has not been diligent in pursuing

its affirmative obligations under ¶ 33(c).

The purposes of the

Consent Decree are manifold, and include in ¶ 33 a detailed list
of the County’s obligations directed to public education,
advertisement, marketing, and promotion of source-of-income
legislation.

Paragraph 33 as a whole, therefore, requires the

County to take steps to improve public acceptance of affordable
housing and make lasting changes in public opinion surrounding
racial integration and income diversity.

Such a goal requires

that any public education campaign continue for some period of
time in order to have the desired effects.
18

Indeed, ¶ 33(h)

requires that at least $400,000 be spent over a period of five
years to advance the goals of that paragraph.

The Settlement

thus explicitly acknowledges the fact that effective public
outreach must take place over a period of years, not months.
One of the County’s primary obligations under the
Settlement -- to ensure the development of at least 750 new
affordable housing units -- is set to conclude this year.
Indeed, if the County had begun an appropriately designed
¶ 33(c) campaign within a reasonable period of time and funded
it adequately, it may have led to less municipal resistance to
the 750-unit provision and otherwise furthered the goals of the
Settlement.

The County’s eleventh-hour launch of the Campaign

therefore comes too late to comply with ¶ 33(c).

In the context

of the Settlement as a whole, the County’s failure to begin the
Campaign until 2015 is unreasonable.

Moreover, this failure

prejudices the Government, and indeed, the citizens of
Westchester County.

As just described, a ¶ 33(c) campaign must

run for some time for there to be any legitimate hope that it
might educate County residents and raise public awareness about
affordable housing.

Paragraph 33 is a key provision of the

Settlement that the Government and the County negotiated in
2009; an inability to enforce that provision would prejudice the
Government by depriving it of the benefits of a bargained-for
term of the Settlement.
19

Finally, one of the factors to be considered in determining
a reasonable time for performance is the absence of good faith.
The County has evinced bad faith related to its obligations
under ¶ 33(c) in at least two ways.

First, it did not begin to

work on the Campaign until the fall of 2015, after the Monitor
compelled and took depositions of County officials concerning
these very issues.

The County’s unwillingness to fulfill its

affirmative obligations until the Monitor seeks relief from this
Court fails to satisfy the terms of the Consent Decree to which
it voluntarily “chose to bind itself” in 2009.
Opinion, 712 F.3d at 772.

2013 Appeal

The County provides no adequate

explanation for these delays.
Second, as the Monitor thoroughly documented in the Report,
the County sought to undercut public confidence in the Consent
Decree by staging press events, writing op-eds, and
incorporating the relevant statements into Astorino’s public
addresses. 9

A few of these statements are worth noting in

The County seeks to defend Astorino’s statements by, among
other things, characterizing them as political speech protected
by the First Amendment. But, “an individual may waive
constitutional rights in a consent decree, provided that the
waiver is voluntary, knowing, and intelligent.” United States
v. Local 1804-1, Int’l Longshoremen’s Ass’n, AFL-CIO, 44 F.3d
1091, 1098 n.4 (2d Cir. 1995). Moreover, a public employee “by
necessity must accept certain limitations on his or her
freedom.” Lynch v. Ackley, 811 F.3d 569, 577 (2d Cir. 2016)
(citation omitted). Thus, in the context of employer
discipline, when “public employees make statements pursuant to
their official duties, the employees are not speaking as
9

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particular.

In a series of op-eds, Astorino claimed that HUD

was “trying to use the settlement as a hammer to dismantle local
zoning,” and that residents should fear a “high-rise next door”
if HUD had its way. 10

At a series of public events, including

town halls and his yearly State of the County address, Astorino
at various points stated that “the neighborhood you live in
today could change over time” because a “five-story building . .
. could be put on your street.”

He emphasized that the “goal of

the Federal Government” is to allow a “multi-family house” on
“any street” in a given municipality.

Instead of advocating for

increased racial and ethnic diversity and explaining the
“benefits of mixed-income housing and racially and ethnically
citizens for First Amendment purposes, and the Constitution does
not insulate their communications from employer discipline.”
Id. (citation omitted).
The County has not made a persuasive showing that the
public statements made by Astorino that are at issue here are
protected under the First Amendment, and even if they were, the
County waived such protections for the statements in the context
of the relief sought here, by voluntarily entering into the
Consent Decree. It should also be noted that the Court is
neither censoring Astorino’s speech nor dictating what he must
say. When he chooses to speak in a way that implicates the
Consent Decree, and especially the Country’s responsibilities
under the Decree, however, the Government and the Monitor may
request appropriate relief.
Indeed, in a May 15, 2013 email about an op-ed in the Daily
Voice, Astorino wrote that he sought to “personalize” the fear
of high-rises, because the “abstract takes the emotion out and
gives people the false sense that [the high rise] will be built
somewhere else, and not next to them.” This intentional stoking
of personal fear of higher density, affordable housing is
especially demonstrative of bad faith in fulfilling the
affirmative obligations of ¶ 33(c).
10

21

integrated communities,” as ¶ 33(c) specifically requires,
Astorino intentionally generated fear that increasing available
affordable housing and modifying exclusionary zoning laws would
change neighborhoods for the worse.

These statements reveal a

concerted effort to influence public opinion against the
Settlement and its stated goal of improving communities by
increasing racial and ethnic diversity.

This coordinated effort

both evinces bad faith and exposes the deficiencies of the
delayed Campaign.
The County presents a few, brief arguments in an
unsuccessful effort to show that it satisfied ¶ 33(c).

First,

the County discusses the 2012 Fair Housing Poster Initiative.
After acknowledging that focus groups reacted negatively to the
original posters, the County describes obtaining and
disseminating two posters created by HUD and the National Fair
Housing Alliance.

These posters addressed housing

discrimination and the benefits of diversity in neighborhoods.
The County distributed the posters to municipalities for display
in public locations, and County officials regularly checked that
the posters were displayed in municipalities across Westchester.
Putting up posters crafted by other organizations does not
constitute “creat[ing] and fund[ing] campaigns” that comply with
¶ 33(c).

Displaying posters does not contain other hallmarks of

the far more robust public education campaigns the County has
22

undertaken to educate and shape public opinion on other issues
it considered important, which included public events, press
releases, or other activities that promote and advertise the
initiative.
Second, the County appears to contend that the One
Community Campaign is sufficient to satisfy ¶ 33(c).

For

example, it touts the two posters advertising the Campaign at
the Westchester County Airport, 11 the posters in bus shelters,
and the resources available on the Campaign’s section of the
County’s website.

The County implicitly acknowledges that there

is room for improvement, however, when it states that it is
prepared to work in good faith with the Monitor to develop the
Campaign.

Thus, although the Campaign is a nod to the

Settlement’s requirements, the County’s unreasonable delay in
implementing it and the Campaign’s clear deficiencies constitute
a breach of ¶ 33(c).
Third, the County points to its officials’ discrete
instances of public outreach.

For example, between 2009 and

2016, County officials hosted, attended, and spoke at the annual
Affordable Housing Expo, conducted trainings on affordable
housing for municipal officials and residents, and spoke on
several panels about affordable housing.

Moreover, the County’s

The County even points out that the more robust Westchester
Smart campaign only has one poster at the airport, while the
Campaign has two.
11

23

Human Rights Commission engaged in public outreach via
presentations and housing discrimination training.

These

appearances are at best individual instances of advocacy at
specific events; they do not constitute “creat[ing] and
fund[ing] campaigns” within the meaning of the Consent Decree,
and the County does not suggest otherwise.

Indeed, during their

June 2015 depositions, Astorino and Deputy Commissioner for
Housing and Community Development in the County’s Department of
Planning Norma Drummond (“Drummond”) stated that they could not
recall any public outreach campaign related to satisfying
¶ 33(c) of the Consent Decree. 12

Moreover, according to the

Monitor, the first of the County’s quarterly reports to mention
anything that resembles a public campaign that would comply with
¶ 33(c) was submitted in the fall of 2015.
II.

Remedy: Release of Videotapes

Making the videotapes public is an appropriate remedy for
the County’s breach of ¶ 33(c) and ordering their release is
within the Court’s equitable discretion to take reasonable steps
to enforce the Consent Decree. 13

To begin with, there can be

little dispute that Astorino’s public statements about zoning as
In her deposition, Drummond referred back to the 2012 poster
dissemination project discussed above. As explained, this is
not a “campaign” within the meaning of ¶ 33(c).
12

As described above, the County has retained a public relations
consultant to improve the Campaign as an additional remedy for
breaching ¶ 33(c).
13

24

well as HUD’s purported requirements that the County spend $1
billion to construct 10,768 units of affordable housing relate
directly to the Consent Decree.

These statements concern the

extent and nature of the County’s obligations under the Decree,
including the County’s duty to submit an AI acceptable to HUD.
Astorino’s statements also reveal the County’s eagerness to sway
public opinion against the Consent Decree instead of
implementing the public education campaigns required by ¶ 33(c).
The videotapes are of depositions taken to address these
very statements as well as the extent to which the County has
fulfilled its ¶ 33(c) obligations.

While it is true that

transcripts of the depositions are already available, public
disclosure of the images of the County officials delivering
their deposition testimony will materially supplement the
existing public record.

Videotapes are regularly taken of

deponents in civil litigation, despite the attendant expense,
because litigators understand that the videotaped witness
testimony is far more effective in conveying the substance and
meaning of the testimony to the fact finder than the dry words
on a printed page.

See, e.g., DiRienzo v. Philip Servs. Corp.,

294 F.3d 21, 30 (2d Cir. 2002) (noting that there is a
“preference for live testimony” because “demeanor evidence is
important,” and “videotaped depositions . . . could afford the
jury an opportunity to assess” a witness’s credibility); cf.
25

United States v. Crandall, 748 F.3d 476, 483 (2d Cir. 2014)
(noting that a “Court of Appeals must accord great deference to
the trial court’s findings regarding credibility because the
trial judge is in the best position to evaluate a witness’s
demeanor and tone of voice as well as other mannerisms that bear
heavily on one’s belief in what the witness says” (citation
omitted)).
The videotapes thus may be an important tool for public
evaluation of the accuracy and reliability of Astorino’s prior
assertions concerning the Consent Decree.

The public will have

an opportunity to evaluate the witnesses’ statements and
credibility in a way that a cold transcript cannot provide to
them.

Releasing the videotaped depositions is an appropriate

remedy for the County’s breach of ¶ 33(c) because Astorino’s
public statements about the Settlement are important evidence of
the County’s unwillingness to launch effective and robust public
education campaigns.
Second, two core goals of the Settlement are to promote
long-term public acceptance of affordable housing and improve
racial diversity in Westchester.

The Settlement contemplates

progressing towards these goals in several ways, including
construction of 750 new units pursuant to ¶ 7, zoning reform,
public information campaigns, and enacting source-of-income
legislation.

Astorino’s public statements that stoke negative
26

public opinion about the Consent Decree undermine the goals of
the Settlement.

Releasing the videotapes of his and other

County officials’ depositions may provide an incentive for the
County to embrace its obligations under the Consent Decree more
completely and publicly than it has done in the past.

Such an

incentive serves the broad purposes of the Consent Decree as
well as the specific obligations that it places on the County.
It is therefore within the Court’s equitable enforcement power
to order the release of the videotaped depositions to ensure the
integrity of the Settlement.
The County’s primary defense against release of the
videotapes is that Astorino’s public statements did not relate
to the goals of the Settlement and therefore disclosure of his
deposition testimony about those statements is outside the scope
of the Court’s authority. 14

As viewed by the County, the Consent

Decree concerns the development of 750 affordable housing units,
and Astorino was not describing or criticizing that requirement
The County also contends that the videos are not “judicial
documents” and therefore are not subject to the presumptions of
disclosure under the First Amendment or the common law.
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d
132, 139 (2d Cir. 2016). Neither the Government nor the Monitor
argue that the videotapes are judicial documents. The
transcripts of the depositions are judicial documents. They
were submitted to the Court as exhibits to the Monitor’s Report
in support of his request that the County be found in breach of
¶ 33(c) and ordered to remedy that breach. It is unnecessary to
decide whether the videotapes of those same depositions may also
be viewed as judicial documents.
14

27

of the Settlement. The County asserts that Astorino’s public
statements referred instead to its dispute with HUD over the
failed AI submission process and the litigation that arose from
that failure.

This characterization does not help the County,

however, because submitting an AI acceptable to HUD is also a
requirement of the Consent Decree. 15

Thus, when Astorino engaged

in public discussions about the AI submissions and HUD’s role in
overseeing that process, he necessarily implicated a key
provision of the Settlement.
The County next speculates that releasing the videotapes
could undermine the Consent Decree, negatively impact the
County’s ability to attract residents, and discourage people
from signing up for affordable housing.

It presents no support

for this argument and it is counter-intuitive.

A principal

purpose of the Consent Decree is to attract a more racially and
economically diverse population for Westchester County.

If

anything, it is Astorino’s public statements that might
discourage new residents from seeking affordable housing within
the County.
The County also speculates that the videotapes may be used
against Astorino in a misleading fashion at some point in the
Whether the County should still be required to submit an
adequate AI will be the subject of a conference to occur on July
8.
15

28

future by someone “as part of partisan political attacks” by,
for example, presenting heavily edited passages from the
videotapes. 16
disclosure.

This speculation does not counsel against
First, the County has not identified any passage

that may be particularly susceptible to unfair manipulation.
The Court has given the County an opportunity to request
redactions from the videotapes before public disclosure.
declined to make such a request.

It

Moreover, it is significant to

note what the County has not argued.

It does not argue that any

information conveyed during the depositions was of a personal
nature, that the questioning concerned anything other than the
deponent’s performance of his and her public duties, that the
questioning went beyond what was permitted by the Court, that
the questioning was abusive or otherwise unfairly prejudicial,
or that any of the witnesses’ deposition answers requires
correction.

The County’s only suggestion of prejudice arises

from the fact that Astorino was deposed in front of a white
wall.

The County suggests that viewers may infer incorrectly

from that setting that the testimony occurred in a courtroom.
16Stern

v. Cosby, 529 F. Supp. 2d 417, 422-23 (S.D.N.Y. 2007), on
which the County relies, is inapposite. Stern discusses the
judicial documents doctrine in the context of a deposition taken
in civil litigation, not release of videotaped depositions as a
remedy for breach of a Settlement or other agreement. Moreover,
the deponent’s “strong privacy interest” and the impact on
judicial efficiency also influenced the court’s decision in
Stern not to release the videotape. Id. at 422. The County has
not raised these concerns here.
29

Whether given in a courtroom or not, the testimony was given
under oath, pursuant to court order, and in connection with
ongoing federal court litigation with the County.

Thus, an

inference that Astorino’s testimony was given in connection with
court proceedings would not be wrong, and would not constitute
unfair prejudice.

In any event, the import of the testimony

comes from its substance, not its location.

And, of course,

Astorino and the County would remain free to speak up and
correct any misimpression about the location of the deposition
that they felt had arisen.
The fundamental point remains that Astorino is a public
figure and he was deposed about his public duties only.

His

interest in keeping the videotapes of testimony about his public
duties out of the public record does not outweigh the importance
of full, open, public discourse on issues connected with the
Settlement and its goals of improving access within the County
to affordable and racially diverse housing.

As already

described, the County has breached ¶ 33(c), and the release of
the videotapes is an appropriate remedy for that breach.

That

release may support improvements to the County’s Campaign, which
are expected to be outlined shortly, and will provide the public
with more accurate information about the Settlement’s
requirements.

30

III. Stay of Order
The County requested that, if the Court orders the release
of the videotapes, the Order should be stayed pending the
County’s appeal.

In determining whether to issue a stay of a

judgment or order pending appeal, a court must consider the
following factors:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in
the proceeding; and (4) where the public interest
lies.
S.E.C. v. Citigroup Glob. Markets Inc., 673 F.3d 158, 162 (2d
Cir. 2012) (citation omitted).

These factors operate as a

“sliding scale” where “[t]he necessary ‘level’ or ‘degree’ of
possibility of success will vary according to the court's
assessment of the other stay factors . . . [and] [t]he
probability of success that must be demonstrated is inversely
proportional to the amount of irreparable injury [a party] will
suffer absent the stay.”

Thapa v. Gonzales, 460 F.3d 323, 334

(2d Cir. 2006) (citation omitted).

A stay is an “intrusion into

the ordinary processes of administration and judicial review,
and accordingly is not a matter of right.”

Nken v. Holder, 556

U.S. 418, 427 (2009) (citation omitted).
The County’s application for a stay of this Order pending
appeal is granted on the condition that it file its appeal
31

promptly and seek expedited review.
requested stay include the following.

The reasons to decline the
The County has not shown

it is likely to succeed in any appeal or identified any
cognizable injury it will sustain from release of the
videotapes.

Moreover, it is in the public interest to be as

well-informed as possible about the positions and performance of
its elected officials on matters of public importance.

But, as

the County notes, once the videotapes are made public, it will
be impossible to re-seal them effectively.

Moreover, the

transcripts of the depositions are already publicly available.
Accordingly, a brief stay will be entered so long as the County
acts expeditiously to appeal this Order.

32

Conclusion
The Monitor’s March 17, 2016 request to make public the
videotapes of 2015 depositions of County officials is granted.
The videotapes shall be made available to the public in their
entirety.

As described in an accompanying scheduling order,

this Order is stayed pending appeal as long as the County
pursues its appeal promptly and seeks expedited review.

The

parties shall promptly inform the Court when the appeal process
is complete.
Dated:

New York, New York
June 27, 2016
__________________________________
DENISE COTE
United States District Judge

33