September 15, 2010

Answering the questions asked by an investigator

Answering the questions asked by an investigator
Chance v Erickson, US Supreme Court, 522 U.S. 262

The U.S. Supreme Court has ruled that federal employees being investigated in connection with alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for the underlying misconduct.

The Court said that an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.

It is expected that other courts will follow the Supreme Court's rationale in cases involving efforts by state and municipal employers to impose additional sanctions on public employees who make false statements to persons conducting internal investigations of alleged wrongdoing by public workers.

The Chance decision concerned efforts by federal appointing authorities to increase the punishment imposed for misconduct in situations in which federal workers were found to have deliberately falsified responses to questions in the course of an internal investigation. Those investigations led to the filing of disciplinary charges against the individual under investigation.

The right to employee representation during questioning was not an issue in Chance. However, it should be noted that Section 75.2 of the Civil Service Law provides that an employee who at the time of questioning appears to be a potential subject of disciplinary action must be advised, in writing, that he or she has the right to have a representative present during the questioning. Disciplinary procedures negotiated under the Taylor Law frequently provide for employee representation during the investigatory phase of the procedure.

The Supreme Court overturned decisions by various appellate courts that upheld Federal Merit System Protection Board rulings that barred the imposition of extra punishment on employees who made false statements in the course of an internal departmental investigation of alleged misconduct by the employees.

The Board had reduced the harsher penalties by forcing federal employers to:

1. Issue a letter of reprimand instead of imposing demotions and 30-day suspensions on two individuals for working on non-government activities on government time.

2. Suspend a male supervisor for 14 days instead of demoting him for making inappropriate remarks to a female subordinate.

3. Suspend an individual for 15 days instead of dismissing the employee for motivating another individual to make harassing telephone calls to a third person.

4. Suspend an employee for 45 days instead of dismissing the individual for misuse of an agency credit card

5. Suspend a health employee for 90 days instead of instead of dismissing him for having had sex with a patient.

The Court commented that the fact that the false statements were not made under oath made no difference. Being charged and found guilty of making false statements in the course of an agency's investigation does not require that the employee make the false statements while under oath.

What about a situation where a truthful answer could expose the employee to criminal prosecution? If, said the Court, answering an agency's investigatory question could expose an employee to a criminal prosecution, he or she may exercise his or her Fifth Amendment right to remain silent -- but may not provide falsehoods in response to the question without being vulnerable to being disciplined for making such false statements.

As to the employee's refusal to answer, the decision notes that it may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond ... there is nothing inherently irrational about such an investigative posture. The Court cited Baxter v. Palmigiano, 425 U.S. 308, which discusses the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.

For these reasons, said the Court we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.

In another case, Brogan v United States, 522 U.S. 398, the Supreme Court, by a 7-2 vote, upheld the conviction of a former union officer who answered no to a question asked by investigators concerning illegal payments he was allegedly paid. This untrue response was the basis for his being convicted of a federal law that made any false, fictitious or fraudulent statements or representations to the federal government a felony, even if the statement was not made under oath. The Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

The test of the Chance decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/falsely-answering-investigators.html
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