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Monday, October 17, 2011

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

Termination recommended after employee refused to answer job related questions after being granted “use immunity”
New York City Department of Corrections v  Lasonde, OATH Index #2526/11


A New York City correction officer, Chandra Lasonde, was served with disciplinary charges pursuant to Civil Service Law §75 alleging that she engaged in misconduct when she refused to answer questions during an interview conducted under Mayor’s Executive Order Number 16 (MEO-16).

MEO-16 section 4(b) provides, in relevant part, that designated City officials may require any officer or employee of the City to answer questions concerning any matter related to the performance of his or her official duties … after first being advised that neither their statements nor any information or evidence derived therefrom will be used against them in a subsequent criminal prosecution other than for perjury or contempt arising from such testimony. The refusal of an officer or employee to answer questions on the condition described in this paragraph shall constitute cause for removal from office or employment or other appropriate penalty.

Lasonde denied engaging in misconduct and asserted that she had constitutionally protected rights not to answer questions that did not involve her official duties as a correction officer notwithstanding having been granted “use immunity” which meant that her statements could be used against her were she subsequently prosecuted for a crime. 


OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde had engaged in misconduct as charged and recommend that her employment be terminated for refusing to answer questions at an official interview.

During the investigation, claiming 5th Amendment protection, the correction officer, refused to answer questions about her union activities dispite being granted “use immunity” which meant that her statements could be used were she to be prosecuted for a crime.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde was clearly informed of her obligation to answer under Mayor’s Executive Order No. 16, and the consequences should she refuse to do so. Finding that Lasonde had no legitimate basis for refusing to answer questions after immunity was granted. The Administrative Law Judge  recommended that Lasonde be terminated from her position.

The decision is posted on the Internet at:

The issue of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with with is terminated transactional or use immunity." Other cases addressing use immunity include Gardner v Broderick, 392 US 273 and People v Corrigan, 80 NY2d 326. These ruling discuss the parameters of use immunity in connection with compelling a public officer or employee to answer questions concerning his or her performance of official duties.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, 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.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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