April 2000 Legal Update

LEGAL UPDATE
By: Louis D. Stober, Jr., Esq.
CSEA REGIONAL ATTORNEY

THE DISCIPLINARY INTERVIEW

A recent Appellate Division case involving a Nassau County police officer provides an important lesson under the Disciplinary Section of the Collective Bargaining Agreement. In this case, Cortes et al v. County of Nassau, et al, 248 A.D.2d 616, 670 N.Y.S.2d 509, a police officer was called into internal affairs and questioned about the conduct of another police officer. At the interview was an Internal Affairs Officer, an Assistant District Attorney but no union representative. The Officer had previously refused to appear for questioning by the District Attorney's office. The Union brought a suit claiming the County acted improperly in compelling the officer to submit to interrogation without benefit of legal counsel or union representation with an Assistant District Attorney present.

The Appellate Court held that the PBA collective bargaining agreement does not grant the right to counsel to an officer who is directed to appear before the Internal Affairs Unit as a witness and does not prohibit a member of the District Attorney's Office from being present at witness interviews. By being forced to testify, the officer received "use" immunity, which means that the actual statements he gave in the interview could not be used against him in a subsequent criminal prosecution.

The Appellate Court held also that statements made by the Officer in an Internal Affairs investigation could be shared with the District Attorney's office even if they could not be used in a criminal prosecution of that witness.

This is an important case to you as well. Section 10-4 of the CSEA collective bargaining agreement mandates that any CSEA member who is being interviewed by a departmental representative under circumstances which may lead to the imposition of a disciplinary penalty against him/her shall be given an opportunity to have a Union representative present during the interview. Section 10-4.3 of the CSEA collective bargaining agreement prohibits the County from using any statement made by an employee in a disciplinary setting when his/her rights under Section 10-4 were violated. However, there is no prohibition on a representative of the District Attorney's office being there or with the County sharing the information obtained at an interview with the District Attorney's office.

Therefore, it is extremely important that any employee who is being interviewed by a departmental representative makes sure that they insist on the presence of a Union representative before answering any questions. Also, you must be extremely careful of what you say if the interview involves the possibility of criminal charges.

This decision is a reminder of just how important it is to be represented whenever you are questioned under circumstances that could impact your job status.

If you believe you are in a similar situation, contact your union representative immediately since you cannot afford to waive union representation.