Compelling an employee to answer work-related questions

Compelling an employee to answer work-related questions

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action:

1. Forcing an employee to answer work-connected questions or be terminated from his or her position generally precludes criminal prosecution based on those answers. Testimony obtained under threat of the loss of public employment provides the employee with limited immunity in criminal prosecutions based on the individual’s responses to such inquiries.* Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. [Lefkowitz v Turley, 414 US 70]. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. The Court of Appeals said that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.” The court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

2. The several decisions in Mountain v Schenectady [474 NY2d 612; 453 NY2d 93 and 428 NY2d 772] focus on the impact of an employee’s refusal to waive his or her immunity from prosecution and suffers the loss of his or her public office as a result of such refusal. The Mountain rulings focused on the relationships between a refusal to waive immunity from prosecution and the loss of public office.**

3. Where an employee is entitled to immunity with respect to the employee’s admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, “that immunity would dissolve in the face of false allegations being filed.” [Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115]. In other words, transactional or use immunity does not permit the individual to lie.

4. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees. As to a "Fifth Amendment" defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

5. The Supreme Court, in an opinion by Chief Justice William H. Rehnquist, held that in the event employees remain silent in the course of a disciplinary action, citing the Fifth Amendment or some other reason, the appointing authority is free to consider such silence and draw adverse inferences in making its determination in a disciplinary action.

6. An appointing authority may experience a situation in which an attempt to discipline an employee appears frustrated because the employee claims that he or she has been granted immunity in connection with a criminal proceeding. According to the Appellate Division, administrative disciplinary action may proceed notwithstanding the claimed immunity (Greco v Board of Nursing Home Examiners, 91 AD2d 1108). In Greco, a Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license. The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

7. Statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing (Dacey v County of Dutchess, 121 AD2d 536). In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

8. Witnesses who may have participated in wrongdoing are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure. Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

Responding to the following inquiry:

May a police officer be compelled to answer questions posed by a department's internal affairs division concerning on-duty and off-duty activities that directly involve their abilities to “carry out the public trust?” the Attorney General advised that:

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

* Such limited immunity is usually referred to as “transactional immunity” or as “use immunity.”

** Mountain, a police officer, refused to waive such immunity when called before a Grand Jury. He was dismissed following a Civil Service Section 75 disciplinary hearing for refusing to so waive immunity. The appointing authority relied on Article I Section 6 of the State Constitution which provides that a public officer if called to testify before a Grand Jury concerning the performance of official duties shall be removed from office if he or she refuses to sign a waiver of immunity. The Court concluded that demanding such a waiver violated Mountain's constitutional protection against self-incrimination. While a public officer may be removed for failing to answer questions relevant to the performance of official duties, he or she may not be dismissed for failing to waive immunity. It appears that had Mountain simply been asked relevant questions concerning his performance of his official duties, without any demand for a waiver of immunity, his dismissal for refusing to answer such questions would have been lawful.

Employee terminated for making false statements in his application for employment

Employee terminated for making false statements in his application for employment

Tezeno v City of Watertown Municipal Civil Service Commission, 37 AD3d 1122

The City of Watertown Municipal Civil Service Commission, after finding that Elijah Tezeno, a City of Watertown Firefighter, had “intentionally made false statements of material fact in his applications” for employment, removed him from his position with the City.

The Appellate Division sustained the Commission’s action, commenting that:

The false statement made in petitioner's firefighter application alone constitutes a violation of Civil Service Law §50(4)(f); and

The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disqualification-for-making-false.html

Termination of a probationer

Termination of a probationer

Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

The Uniondale Union Free School District appointed Vincenza Mennella as its Dean of Students effective September 1, 1998. The appointment was subject to a three-year probationary period.

In January 1999, Mennella was evaluated and rated unsatisfactory or “in need of improvement” in four categories. In March 1999, the superintendent advised Mennella that she would recommend that the board terminate Mennella’s employment. When asked for the reasons for this, the superintendent told Mennella that her recommendation was based on Mennella’s:

1. Working relationships with other administrators;

2. Failure to complete classroom evaluations of first year teachers in her department in a timely manner; and

3. “Resistance to District protocol.”

The board terminated Mennella effective June 30, 1999 and she appealed to the Commissioner contending that her dismissal was arbitrary and capricious. The district raised a number of procedural objections, the most significant one being that Mennella had filed two grievances concerning the matter with the district.

After addressing the “technical” procedural objections, the Commissioner considered the district’s “jurisdiction argument” -- i.e., the Commissioner lacked jurisdiction to consider the appeal because of the pending grievances filed by Mennella.

The Commissioner responded to the district’s challenge to his jurisdiction to consider the appeal by noting that “[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter,” citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that Mennella’s grievances had not raised the same issues she raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider Mennella’s appeal.

This proved to be a Pyrrhic victory, however.

Considering the merits of Mennella’s appeal, the Commissioner first pointed out that a board of education has “an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period....” Such a termination will not be set aside “unless the employee establishes that a board terminated service for a constitutionally impermissible reason or in violation of a statutory proscription.”

Pointing out the Mennella had the burden of proof in this instance, the Commissioner ruled that she failed to show the board’s action was for a constitutionally impermissible reason or in violation of a statutory proscription and thus failed to meet her burden. The Commissioner dismissed her appeal.

The decision notes that the superintendent had given Mennella timely notice of her proposed recommendation and her reasons for doing so, together with an opportunity to respond to this action, thus complying with the mandates set out in Section 3031 of the Education Law. Significantly, the Commissioner indicated that he had noted “numerous memoranda in the record” sent to Mennella that “amply demonstrate [the district’s] concern over [Mennella’s] relationships with her colleagues.”

This illustrates the importance of documenting the appointing authority’s efforts to advise an employee of its expectations, and how the employee may meet these expectations, when an individual is not performing to its satisfaction. Although this case involved a probationary employee, having the same type of documentation in the record will often prove important in a disciplinary action involving a tenured individual.

Sometimes a district’s decision to terminate a probationer will trigger claims that the probationer’s rights under a collective bargaining agreement have been violated. Typically, such provisions in the negotiated agreement set out the procedures to be followed with respect to the evaluation of probationary employees and the steps to be taken in terminating the services of a probationer.

In Hempstead UFSD v Hempstead Classroom Teachers Association, of behalf of James Lacey, decided by the Appellate Division, Second Department, 267 AD2d 309, the court commented that a motion by the district to stay arbitration in a “second grievance” involving the same parties was rendered moot because a Supreme Court earlier had confirmed an arbitrator’s award in a prior grievance arbitration proceeding directing the reinstatement Lacey, a probationary teacher.

Determining if a §3014-b “takeover of an education program” occurred

Determining if a §3014-b “takeover of an education program” occurred

In the Matter of Elizabeth G. Quattrone v NYS Department of Education, 37 A.D.3d 939

Elizabeth G. Quattrone, a tenured teacher employed by Erie 2 Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES), was assigned to teach gifted and talented students at various component school districts.

Quattrone was told that her position was being “excessed due to lack of interest in the gifted and talented program” after the Chautauqua Lake Central School District and Dunkirk City School District cancelled their BOCES contracts for gifted and talented services. Quattrone’s name was placed on a preferred eligible list for reinstatement to appropriate vacancies at both Chautauqua Lake and Dunkirk but she was never thereafter contacted by either for employment.

Alleging that, in fact, both school districts “took-over” the functions formerly performed by her and assigned the work to other teachers without offering her such available employment, Quattrone appealed “her non-selection for the position” to the Commissioner of Education.

Quattrone contended that she had a legal right to employment with the school districts pursuant to Education Law §3014-b upon their “taking-over” the former BOCES program.

Finding that there was no “take-over” that would trigger the provisions of §3014-b, the Commissioner dismissed Quattrone’s appeal.

The Appellate Division sustained the Commissioner’s determination, stating “Upon our examination of these factors, we conclude that petitioner failed to establish that a takeover occurred by either Chautauqua Lake or Dunkirk City.” Among the reasons given for its decision, the Appellate Division noted that:

1. Chautauqua Lake, while it did develop an enrichment program following its discontinuance of the BOCES gifted and talented program, “the two programs were simply not equivalent.” Unlike the BOCES program, the enrichment program paralleled general classroom instruction and featured field trips and classroom presentation components.

2. Dunkirk City, following its discontinuance of the BOCES gifted and talented program, it had no program whatsoever earmarked for gifted and talented education but rather embedded such education into their general curriculum and within the regular classroom setting.

3. Neither school district hired a new teacher to replace petitioner following discontinuance of their BOCES contracts.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/determining-if-takeover-of-education.html

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Zero tolerance drug policy

Zero tolerance drug policy

Dept. of Corrections v Robbins, OATH 2030/99

Many employers have initiated “zero tolerance” policies requiring the automatic dismissal of individuals found to have violated the policy. These “zero tolerance” policies address a number of situations that the employer views as disruptive or dangerous, the most common involving the use of drugs by employees, on or off the job.

The New York City Department of Corrections had established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

Was dismissal the appropriate penalty in a case involving a civilian employee -- a dietary aide -- found to have smoked one marijuana cigarette, off-duty, almost two years before being charged with violating the policy? The administrative law judge did not believe it was, concluding that there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied.

The employee, Anthony Robbins, admitted he was guilty of the charge of using marijuana while off-duty. Although the department wanted him terminated for violating its “zero tolerance” drug policy, the hearing officer recommended that a lesser penalty be imposed. The mitigating circumstances set out by the hearing officer justifying the deviation from the policy included the following:

1. Since the time of the incident, Robbins had been in counseling, had undergone drug testing, and laboratory reports indicated that he tested negative for drugs.

2. The employee has continued in counseling and still undergoes, as part of counseling, drug screening.

3. The risk of Robbins’ being involved in drug smuggling at the facility is so negligible as to be speculative and therefore cannot justify termination.

4. In previous cases involving violations of the “zero tolerance” policy by civilian workers, the individuals were not terminated and lesser penalties were imposed by the department.

5. The department did not subject civilian workers to random drug testing procedures although it required uniformed employees to submit to random drug tests.

6. In one instance the department “converted a penalty of termination into a lengthy suspension with random drug testing against a correction officer found to have tested positive for marijuana.”

The hearing officer concluded these “mitigating circumstances” justified a departure from the “zero tolerance” policy’s “automatic termination” provision.

Disciplinary hearings involving police officers are open to the public

Disciplinary hearings involving police officers are open to the public 

Matter of Doe v City of Schenectady, 2011 NY Slip Op 03694, Appellate Division, Third Department

The City of Schenectady appealed an order and judgment of the Supreme Court Judge Barry Kramer that among other things, ”permanently enjoined” Schenectady from permitting the public to attend disciplinary hearings involving City of Schenectady police officers.* 

In response to Schenectady’s Public Safety Commissioner Wayne E. Bennett advising the City Council of his plan to modify the City's police disciplinary process notwithstanding the disciplinary procedures set out in the collective bargaining agreement between the City and the Schenectady Police Benevolent Association (SPBA), SPBA filed an improper practice charge against the City with the Public Employment Relations Board (PERB).

The City filed its own improper practice charge against SPBA with PERB, asserting, that SPBA had impermissibly sought to negotiate disciplinary proceedings, which the City contended was a prohibited subject of collective bargaining.

Bennett issued a general order setting out the new disciplinary proceedings policy providing, among other things, that such proceedings would in the future be governed by Second Class Cities Law §137, pursuant to which Bennett would be the sole trier of fact and the formerly-confidential disciplinary hearings would be open to the public.

Subsequently SPBA filed an amended improper practice charge alleging that the parties' collective bargaining agreement governed disciplinary procedures and could not be unilaterally modified by respondents.

While the City's and SPBA's charges were pending before PERB, two police officers, James Roe and John Doe, were each served with a notice of discipline and advised that, pursuant to Second Class Cities Law §137, the City would be conducting public hearings with respect to those disciplinary charges. SPBA’s petition set out two causes of action:

1. Pursuant to Civil Rights Law §50-a and Public Officers Law Article 6-A, Roe and Doe were entitled to declaratory relief in that police disciplinary hearings must be confidential; and

2. The City’s "unilateral use of public hearings . . . in connection with [police] disciplinary proceedings [was] in excess of [the City’s] jurisdiction, illegal and contrary to law, in violation of lawful procedure and the [D]ue [P]rocess [C]lauses of the State and Federal Constitutions and [was] arbitrary, capricious and an abuse of discretion."

Ultimately Supreme Court ruled that Civil Rights Law §50-a superseded Second Class Cities Law §137 and that the legislative intent of §50-a would be thwarted by public disciplinary hearings.

The Appellate Division, in vacating Judge Kremer’s ruling, said that “individual police officers possess no private right of action for claimed violations of Civil Rights Law §50-a and for this reason alone the petition/complaint should have been dismissed to that extent.

Commenting that §50-a provided an exemption of document that might otherwise be disclosed pursuant to Freedom of Information Law (Article 6, Public Officers Law) but noting in that section “mentions the word disciplinary hearing, let alone requires that such hearings be held in private and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended.”

Citing Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, affd 67 NY2d 562, the Appellate Division said that the legislative history of §50-a indicates that the "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination."

Concluding that SPBA failed to state a cause of action or legally cognizable claim, the Appellate Division said that “Supreme Court erred in denying [Schenectady’s] cross motion for dismissal of the petition/complaint.

The court, however, declined to divest PERB of its exclusive jurisdiction over the improper practice charges, including whether police disciplinary matters are a prohibited subject of negotiations.

On this last point, it could be argued that negotiating alternative disciplinary procedures to those provided by law is a permissive rather than a mandatory subject for collective bargaining.

Civil Service Law §76.4, provides: 4. Nothing contained in section seventy-five or seventy-six of this   chapter shall be construed to repeal or modify any general, special or   local law or charter provision relating to the removal or suspension of   officers or employees in the competitive class of the civil service of   the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state** and an employee organization pursuant to article fourteen of this chapter. [Emphasis supplied] Where such sections are so supplemented, modified or replaced, any   employee against whom charges have been preferred prior to the effective   date of such supplementation, modification or replacement shall continue   to be subject to the provisions of such sections as in effect on the   date such charges were preferred.

Accordingly, the use of the word “may” suggests that either party negotiating a collective bargaining agreement could decline to negotiate an alternative to a statutory disciplinary procedure but may elect to do so, making any demand for an alternative to a statutory disciplinary procedure a permissive subject of collective bargaining within the meaning of the Taylor Law.

* In a disciplinary action taken against an employee pursuant to Section 75 of the Civil Service Law the court ruled that the hearing could not be closed to the public unless the accused employee agrees or requests that the proceedings be held privately [See 74 Misc.2d 315]. With respect to disciplinary procedures initiated pursuant to §3020-a of the Education Law, 8 NYCRR 82-1.9, “Demand for public hearing,” provides that [u]nless the employee notifies the hearing officer at least 24 hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. The prehearing conference shall be private.” §3020-a, however, is silent with respect to “a public hearing.” Presumably 8 NYCRR 82-1.9 was adopted pursuant to the authority vested in the Commissioner of Education by §3020-a.3.c, which provides that “The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under [such] section.”

** Although it could be argued that the use of the word “State” limits the negotiation of alternative disciplinary procedures to the State and employee organizations representing State workers, in practice alternatives to statutory disciplinary procedures have been negotiated by political subdivisions of the State and employee organizations representing employees of such political subdivisions for decades.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03694.htm