Refusal to answer questions during an administrative disciplinary investigation
Matter of Eck v County of Delaware, 36 AD3d 1180
There were many issues considered by the Appellate Division in deciding Eck’s appeal of an adverse Section 75 Civil Service Law disciplinary determination.
One issue involved the law regarding compelling an employee to answer questions concerning his performance against his will in the course of a pre-disciplinary investigation that could result in administrative disciplinary action and, or, criminal action being taken against the individual.
Kenneth R. Eck, Jr., a deputy sheriff with the Delaware County Sheriff’s Department, was served with Section 75 disciplinary charges.
Charges filed against Eck included the allegation that he had conducted an unauthorized investigation of two Delaware County employees, one of whom was Eck’s former wife, because of Eck’s suspicion that the two were involved in a romantic relationship.
Among the several charges leveled against Eck was one that alleged that he refused to answer questions regarding his activities during the Sheriff’s investigation of incident.
The Section 75 Hearing Officer found Eck guilty of the charges filed against him. After reviewing Eck’s personnel file, the Hearing Officer recommended Eck be dismissed from his position. The County adopted the Hearing Officer’s findings and recommendation and terminated Eck.
In rejecting Eck’s appeal seeking reinstatement to his former position, the Appellate Divisions considered a number of elements raised by Eck in an effort to have the disciplinary decision vacated. One element concerned Eck’s argument that the disciplinary action was unlawful because it compromised his Fifth Amendment constitutional right against self-incrimination.
In response to Eck’s claim that he could not be disciplined for invoking his Fifth Amendment privilege against self-incrimination when he refused to answer certain questions posed by the attorney representing the County during the investigation of his “activities during off-duty hours,” the Appellate Division pointed out that:
1. It is understood that the Fifth Amendment privilege against self-incrimination protects an individual not only in the context of a criminal trial, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”
2. An individual’s “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying”.
3. In a situation where a public employee is compelled to answer questions or face dismissal, the individual’s responses are automatically cloaked with immunity.
Accordingly, said the court, “where a public servant . . . refuses ‘to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity, . . . the privilege against self-incrimination would not [be] a bar to his dismissal’”
In this instance the court found that “the questions were narrowly tailored to the matters under investigation and [Eck] was compelled to answer them on pain of termination, his answers would have been automatically cloaked by immunity.”* In view of this, the Appellate Division concluded that Eck’s “assertion of his Fifth Amendment privilege did not bar disciplinary action against him.”
This, together with the Hearing Officer’s finding that Eck (1) used his position to obtain information about a co-workers whereabouts in furtherance of his own unauthorized investigation; (2) his surveillance endangered the co-worker, who often worked undercover; (3) he disparaged the Sheriff and the Sheriff’s Department in the presence of other officers and civilians; and (4) he disclosed information about his disciplinary hearing after being instructed not to discuss it, persuaded the Appellate Division that under the circumstances, “the penalty of termination is not disproportionate to these offenses.”
* This is often referred to as “use immunity.”