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December 14, 2011

Employee must answer questions concerning work if granted “use immunity”

Employee must answer questions concerning work if granted “use immunity”
Tanico v. McGuire, 80 AD2d 297

Two police officers refused to answer questions concerning their performance of official duties following their suspension without pay for alleged official misconduct.

They were subsequently served with disciplinary charges alleged misconduct and later again refused to answer “questions specifically directed and narrowly related to official duties.”

Instead the officers filed an Article 78 petition seeking a court order prohibiting such questioning.

The Appellate Division ruled that “a public employee, if granted ‘use immunity’ may be narrowly and specifically questioned about his official duties and dismissed...if he refuses to answer questions properly put to him.”

Although “use immunity” would prevent the answers being used against the individual in a criminal prosecution, the court indicated “since disciplinary proceedings are not criminal actions, the employee’s statements may be used against him in those proceedings (and) an employee who refuses to answer may be discharged on that basis.”

New York City Police Department Rules authorize interrogation of police officers who are either the subject of or witnesses in an official investigation. It appears that an employee can be compelled to testify against himself in a disciplinary proceeding as “use immunity” would be provided under the 5th Amendment in any subsequent criminal prosecution.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com