Wednesday, February 25, 2015

Refusing to answer work-related questions in the course of an investigation


Refusing to answer work-related questions in the course of an investigation
2015 NY Slip Op 01573, Appellate Division, First Department

The question 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 154, cert denied 486 US 1007. 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 use immunity," noting that "when a public employee is compelled to answer questions or face removal upon refusing to do so, the responses are cloaked with immunity automatically, and neither the compelled statements nor their fruits may thereafter be used against the employee in a subsequent criminal prosecution."

An attorney serving with the Department of Housing Preservation and Development (HPD) was terminated from his position. The administrative law judge, after a disciplinary hearing, had found the attorney guilty of misconduct and recommended the individual be terminated from employment. The appointing authority adopted the findings and recommendation of the administrative law judge and dismissed the attorney.

The attorney appealed but the Appellate Division unanimously affirmed the appointing authority’s determination. The penalty imposed, said the court, “does not shock our sense of fairness” given, among other things, the attorney’s refusal to appear for duly scheduled investigatory interviews even after receiving use immunity.

The court explained that substantial evidence supported the determination that attorney had engaged in misconduct by representing a tenant in litigation against the New York City Housing Authority while employed as an attorney for HPD, by “using [HPD’s] resources in the course of that representation, and by refusing to comply with directives to appear for investigatory interviews.

The Appellate Division said that although the attorney “is correct that a violation of New York City Charter §2604(b)(7) was not established given the absence of any evidence that he received any compensation for representing the tenant ... there was substantial evidence that [the attorney] violated other laws and orders in connection with that representation, including New York City Charter 2604(b)(2) and HPD Commissioner Order 2009-1(4)(a).”

The decision is posted on the Internet at:


A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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/

Challenging Adverse Personnel Decisions 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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