November 1996 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

PROTECTIONS FROM SELF-INCRIMINATION/USE IMMUNITY

As we prepare for Thanksgiving dinner we give thanks for all that we have received in the past year. In this issue, let's examine the protections we have received from self-incrimination in the Collective Bargaining Agreement.

HELP IS JUST A PHONE CALL AWAY!

How often has it turned out that a statement becomes the prime piece of evidence against an individual? Because this happens so often, the U.S. and New York Constitutions, the Collective Bargaining Agreement, and various cases have all protected the rights of the individual from self-incrimination.

In the leading Court of Appeals case on the issue of civil servants giving statements about criminal activity, Matt v. LaRocca, New York's highest court held that if a civil servant is ordered by his or her employer to answer questions that deal with potential criminal conduct, that employee receives "use immunity". That means: "answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence" in a subsequent criminal prosecution.

In the Matt case, the questioning occurred in the context of a hearing under Section 61 of the Public Officers Law. The employee repeatedly refused to answer questions at the hearing even though he was warned that such refusal would constitute insubordination. The employee refused because he did not know that immunity automatically applied to him.

The Court of Appeals upheld the employee's termination for refusing to answer the questions at the hearing. "To require a public body to continue to keep an officer or employee who refuses to answer pertinent questions concerning his official conduct, although assured of protection against use of his answers or their fruits in any criminal prosecution, would push the constitutional protection beyond its language…"

The reasoning was that since the statements would be inadmissible in a criminal prosecution, the employee had no justifiable reason to refuse to answer the questions at the hearing. If the employee had been requested to waive his immunity and answer the questions, then he or she would have the absolute right to refuse to answer the questions and could not be discharged for failing to answer the questions. Again, due process and the right against self-incrimination come to the rescue.

What about an employee who is ordered to give a statement, either verbal or in writing, when management is merely investigating whether disciplinary charges should be brought against the employee? Can this employee be forced to give a statement? Under the Appellate Division's holding in Smith v. Gwydir, the answer is NO. "It is undisputed in this case that the petitioner [employee] had a right to a hearing. To permit the supervisor to question petitioner [employee] and direct him to sign an inculpatory statement would make any hearing academic."

An employee entitled to disciplinary protection is entitled to a hearing where the employer must prove its case against you. By forcing you to sign a statement about the incident prior to the hearing, the employer makes a hearing on the issue useless. Fundamental fairness requires that the employer prove its case against an employee in a disciplinary hearing. In Smith, the Court held that an employee cannot be charged with insubordination for refusing to sign a statement concerning conduct that may lead to disciplinary charges.

How does your Collective Bargaining Agreement reconcile the contrasting interests of protection from insubordination and overreaching by management versus the right to obtain answers to certain questions concerning questionable conduct?

Section 10-4 mandates that any employee who is being interviewed by a departmental representative under circumstances which may lead to the imposition of a disciplinary penalty other than a reprimand, must be given an opportunity to have a Union representative present during such interview.

This ensures the employee a witness to the questioning and allows the employee the opportunity to consult with and obtain advice from the Union representative before answering any questions.

Section 10-4.3 mandates that statements made by an employee after notice of an investigation related to charges which may be brought against such employee, which statements are made in the absence of an opportunity to exercise the employee's rights pursuant to Section 10-4, 4.1, and 4.2, shall not be admissible in the Disciplinary Review Procedure.

This means that both verbal and written statements made in violation of these sections are inadmissible. Therefore, if management refuses to afford you the opportunity to have a Union representative present, any statements it gets cannot be used in a disciplinary hearing.

What is the lesson? If you believe you are being questioned by management on a subject that may lead to disciplinary charges against you, insist on having a union representative present before answering ANY questions. You must also make sure you are not being asked to waive any immunity rights you may have and remember, while you might not be charged with insubordination for refusing to answer questions in an investigation, you may very well lose your job if you refuse to answer questions at a hearing.

In a case involving an employee at the A. Holly Patterson Geriatric Center, an employee was questioned by his supervisor concerning an event that ultimately led to disciplinary charges against the employee. Since the County's case was built, in large part, around the supervisor testifying as to what the employee told him, the Arbitrator ruled that the employee had not been given an opportunity to have a Union representative present when he was questioned and the statement was inadmissible.

While the employee was ultimately found guilty of some misconduct, the Arbitrator held that pursuant to Section 10-4 the only penalty that could be imposed was a reprimand. The employee was represented at the hearing free of charge by this writer under the CSEA Legal Assistance Program. The County was ordered to pay back the suspension imposed on the employee.

So always insist on your right to your CSEA Union representative any time you are being questioned by management. If you are refused this right, anything you say will not be admissible in a disciplinary hearing.