Employees must answer questions honestly in the course of an investigation involving job-related conduct

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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Court said dismissal too harsh a penalty after considering employee’s personnel file

Court said dismissal too harsh a penalty after considering employee’s personnel file
Schnaars v Copiague UFSD, 275 AD2d 462

Is dismissal too severe a penalty for a school employee who uses a school computer to find pornographic web sites? Yes, both a Supreme Court Judge and the Appellate Division ruled in the Schnaars case.

A student at Copiague High School turned on a school computer and was immediately confronted by a pornographic image. Schnaars, Copiague UFSD’s head custodian, took responsibility. Schnaars admitted that, with his subordinates, he accessed pornographic web sites during two night shift tours of duty.

The district filed disciplinary charges against him, alleging that he had used the district’s computers without authorization and neglected his duty. The hearing officer found Schnaars guilty of the charges and recommended that he be demoted to a lower grade position.

Although the board adopted the hearing officer’s findings as to guilt, it rejected the penalty recommended by the hearing officer and voted to terminate Schnaars instead.*

Schnaars sued, contending that board’s rejection of the hearing officer’s recommendation as to the penalty to be imposed was arbitrary, capricious, an abuse of discretion, and disproportionate to the offense for which he was found guilty.

New York State Supreme Court Judge Marquette L. Floyd of Suffolk County said that where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” citing the so-called Pell Standard [Pell v Board of Education, 34 NY2d 222]. Although courts rarely find that an administrative penalty violates the Pell Standard, in this instance Judge Floyd decided that dismissing Schnaars was a shockingly disproportionate penalty.

The Appellate Division affirmed the lower court’s ruling, commenting that Schnaars’ actions did not involve “moral turpitude, gross injury to the agency involved or [gross injury] to the public weal.”

Noting that “access to the school’s computers can be curtailed through adequate passwords and by ‘filtering’ software, which may also be complicated by First Amendment issues,” the Appellate Division said that although it “does not condone [Schnaars’] individual or supervisory behavior, his termination is so disproportionate to the facts that it may not be permitted to stand.”

What are some of the factors that should be considered in settling a disciplinary penalty? The Appellate Division said that where there is no “grave moral turpitude” and no grave injury to the agency or to the public weal,” the following should be considered:

1. The length of employment of the employee;

2. The probability that a dismissal may leave the employee without any alternative livelihood;

3. The employee’s loss of retirement benefits; and

4. The impact upon his innocent family.

In contrast, the court said that no such consideration of “mitigating circumstances” is required in situations involving such actions as a “deliberate, planned, unmitigated larceny, or bribe taking, or [a] demonstrated lack of qualification for the assigned job.”

The decision observed that Schnaars “candidly acknowledged his violation of District policy and sought to correct [the] same by informing his subordinates that ‘this has got to stop.’” Another consideration, said the court, was Schnaars “otherwise 13 year unblemished record with the District with many letters of recommendation and accolades that exhibit faithful and loyal service.”

What penalty would be appropriate in this case? The court said that the district should reinstate Schnaars to his position as Head Custodian with back salary and then impose “an appropriate penalty” suggesting either “demotion and/or suspension without pay for a reasonable period, said period not to exceed ninety (90) days.”

The Appellate Division also said that the district “shall be entitled to a credit of any of [Schnaars’] earned income from the time of his termination to the date of reinstatement.”

However, Civil Service Law Section 77 -- compensation of officers and employees reinstated by court order -- currently authorizes such adjustment only for “unemployment insurance benefits.” In 1985, Section 77 was amended to eliminate the clause allowing adjustments for “compensation which [the individual] may have earned in any other employment or occupation...” [Chapter 851, Laws of 1985].

On another area of concern: the decision sets out the penalty that the court said could be imposed: demotion and/or suspension without pay not to exceed ninety days.

This suggests that the district could demote Schnaars or it could suspend him without pay or it could impose both penalties. Courts, however, have ruled that only one of the several penalties set out in Section 75 may be imposed on an individual found guilty of Section 75 disciplinary charges -- the imposition of multiple penalties is not authorized. In other words, cumulative penalties are not permitted in such cases.

In Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.

Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.

The Appellate Division held that the penalty meted out was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.

In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.

* Demotion or termination are among the penalties an appointing authority may impose on an employee found guilty of misconduct or incompetence pursuant to Section 75.
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Communications between department’s attorney and agency employees privileged

Communications between department’s attorney and agency employees privileged
Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]

In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?

In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.

State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”

Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.

Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.

The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.

Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.

State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.

Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”

In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.

Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
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