Employees must answer questions honestly in the course of an investigation involving job-related conduct
People v James, Court of Appeals, 93 NY2d 620
Section 106 of the Civil Service Law provides that it is a misdemeanor to obstruct the civil service rights of an individual. Cases involving violations of Section 106, however, are rarely encountered. Allegations of violating Section 106 and then committing perjury concerning events involving the preparation of a civil service examinations were factors in the James case.
Gordon, a New York City Transit Police officer, had been assigned to help draft a promotion examination for the New York City Transit Police Department. He set up a meeting at his home that James attended together with other potential examinees named Lebron, Tarquini and Gillians. Material concerning of the promotional examination was distributed, including questions that were ultimately included on the promotion test.
James and the others copied the materials distributed by Gordon and left with them after the meeting. One of the participants, Lebron, later gave photocopies of the test materials that she had copied, together with the tapes of her telephone conversation with Gordon, to the Department’s Internal Affairs Bureau.
The February 1991 promotion examination was invalidated, and a substitute examination was given on February 2, 1992. James, Tarquini and Gillians took the substitute examination and their rankings on the technical knowledge section of the test was determined to have dropped significantly below their performance on the 1991 test. James was called before the Grand Jury investigating the allegations of cheating on the test.
After being granted immunity, James testified that he had never been to Gordon’s home in 1990, that he had never been to Gordon’s home when Lebron was present and that he did not attend a study session at Gordon’s home on October 20, 1990. He was subsequently indicted on six counts of perjury based upon those sworn denials -- a grant of immunity does not afford a witness the right to commit perjury.*
The decision of the U.S. Supreme Court in La Chance v Erickson, 522 US 662, is instructive concerning such situations. Here the Court ruled unanimously that federal government agencies could mete out harsher discipline to employees who lie while being investigated for job-related conduct. Although only federal employees were involved, the ruling could influence cases involving state and local employees in similar situations.
Citing Bryson v. United States, 396 US 64, the Court said:
Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
Thus, 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.”
On another point, Chief Justice William H. Rehnquist wrote that if employees remain silent, citing the Fifth Amendment or some other reason, employers are free to take such silence into consideration and draw adverse inferences in discipline.
* Gordon was also indicted by a Grand Jury on two counts of official misconduct in violation of Penal Law Section 195.00 and four counts of obstructing civil service rights in violation of Civil Service Law Section 106. In March 1994, Gordon was convicted of both counts of official misconduct and three of the four counts of obstructing civil service rights.
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