Petition for Writ of Certiorari — Matt v. Larocca

Suprema Court, US.

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87 - L5 63 WAX lo 199g

IN THI CLERK

JOSEPH F. SPARGOL, JR,

Supreme Court of the United States

October Term, 1987

JOHN A. MATT, SR.,

Petitioner,

against

JAMES L. LAROCCA, as Commissioner of the New York State

Department of Transportation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT Ot

APPEALS OF THE STATE OF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

HINMAN, STRAUB, PIGORS & MANNING, P.C.

Attorneys for Petitioner

121 State Street

Albany, NY 12207

(S18) 436-0751

Wirt tam F. SHEEHAN

birten M. Keitty*

Wii tiamM P. GOLDERMAN

Of Counsel

*Counsel of Record

Dated: March 18, 1988

Question Presented.

Whether the Fifth Amendment protects a public em-

ployee, under criminal investigation, from discharge, for

his failure to-answer incriminating questions posed by his

employer when such employce has been given no notice

and has no knowledge that immunity will attach to his

testimony.

Table of Contents.

Question Presented; , 755g

Opinions Below... ....e

Jurisdiction... ..\.) canna

The decision of the Court of Appeals addressing an

important constitutional issue is in direct con-

flict with the decisions of this Court that hold

that a public employee must not be faced with

the choice of either incriminating oneself or

face loss of employment...................

Conclusion ...... :7. gga

Appendix A ..... .¢.

Appendix B ...... 0, een

Appendix C .... ....see

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TABLE OF AUTHORITIES.

Page

CASES:

Benjamin v. City of Montgomery, 785 F.2d 959 (IIth

SU rs ec ck cae sees eeespene sees 12

Confederation of Police v. Conlisk, 489 F.2d 891 (7th

Cir., 1973), cert. denied sub nom. Rochford v.

Confederation of Police, 416 U.S. 956 (1974).. 12

Frost Trucking Co. v. Railroad Comm'n, 271 U.S.

en to aes 64 Sedat aeenee 10

Gardner v. Broderick, 392 U.S. 273 (1968)... 10, I], 14,

18, 17

Garrity v. New Jersey, 385 U.S. 493 (1966)... 10, 11, 14

Kalkines v. United States, 473 F.2d 1391 (Ct. Cl.,

ran dd sess ewes nes ean 12, 13,

14, 16, 18

Kastigar v. United States, 406 U.S. 441 (1972).... 13, 14

Lefkowitz v. Cunningham, 431 U.S. 801 (1977)..... 10

Lefkowitz v. Turley, 414 U.S. 70 (1973) ........... 10

Matt v. LaRocca, 117 A.D.2d 151 (3d Dep’t. 1986)... 8

People v. Masiello, 28 N.Y.2d 287 (1971) .......... x

Raley v. Ohio, 360 U.S. 423 (1959). ............. 10, 11

Spevack v. Klein, 385 U.S. S11 (1967) ............. 11

2

Opinions Below.

The opinion of the Court of Appeals of the State of

New York, which reversed the order of the Appellate Di-

vision, Third Judicial Department, was rendered on De-

cember 21, 1987. The opinion is reported at 71 N.Y.2d 154

(1987) and is set forth as Appendix ‘‘A.”’

The opinion of the Appellate Division was rendered on

May 15, 1986. The opinion is reported at 117 A.D.2d 151

(3d Dept. 1986) and is set forth as Appendix “‘B.”’

Jurisdiction.

The order of the Court of Appeals was entered on De-

cember 21, 1987. The Court’s jurisdiction to review the

case rests upon 28 USC §1257(3).

Statement of the Case.

Petitioner, a thirty-four year employee of New York

State Department of Transportation (hereinafter

**D.0.T.’’), served faithfully and competently in his posi-

tion as Canal Section Superintendent until November 23,

1984, when respondent, Commissioner of D.O.T. dis-

charged him for insubordination based upon petitioner’s

refusal to answer incriminating questions posed by re-

spondent. At the time of petitioner’s refusal to answer the

incriminating questions, petitioner was without knowl-

edge that his responses could not be used against him in a

pending criminal proceeding as the respondent had failed

io so advise the petitioner. As a result of respondent’s ac-

tion, petitioner claims that his right against self-incrimi-

nation guaranteed under the Fifth Amendment to the

United States Constitution was violated by the respond-

ent’s discharge of him from his employment based solely

3

upon petitioner’s invocation of his constitutional right

against self-incrimination.

The relevant facts that form the basis for petitioner’s

invocation of his privilege against self-incrimination and

respondent’s discharge of petitioner for insubordination

based upon his assertion of the privilege are as follows:

On or about February 2, 1984, petitioner was extensively

interviewed by an investigator and an attorney from

D.O.T. regarding alieged mismanagement and misconduct

in the D.O.T.’s Waterways Division. Specifically, the in-

quiry focused on the use of State time and State property

for personal purposes by employees under petitioner’s su-

pervision. Petitioner, as a supervisor, was one of the sub-

jects of the investigation. During this initial investigatory

interview, petitioner was not represented by counsel. Peti-

tioner responded openly, honestly and freely to all in-

quiries.

Based upon information obtained from petitioner in his

interview and other sources, respondent referred the in-

formation gathered concerning petitioner’s conduct to the

Oneida County, New York, District Attorney’s Office. As

a result, from approximately February 28, 1984 until Oc-

tober 17, 1984, petitioner was a target of a criminal inves-

tigation conducted by the Oneida County District Attor-

ney.

On February 28, 1984, petitioner was served with disci-

plinary charges and specifications pursuant to N.Y. Civil

Service Law Section 75.' The charges alleged, inter alia,

that petitioner’s supervisory conduct constituted penal vi-

'For the Court’s convenience, a copy of N.Y. Civil Service Law

Section 75 and other relevant New York statutes are attached hereto

as Appendix ‘‘C.”’

4

olations (¢.2¢., Otficial Misconduct and Criminal Facilita-

tion) in that petitioner failed to investigate and discipline

subordinates who had violated State regulations regarding

the use of leave credits and other State resources.

Petitioner requested and was denied a hearing on the

charges of official misconduct and criminal facilitation

brought by the D.O.T. In lieu of a hearing, D.O.T. ad-

vised petitioner's attorneys that as part of a separate, on-

going investigation, pursuant to Section 61 of the N.Y.

Public Officers Law,* petitioner would be asked to testify

under oath prior to commencement of a disciplinary hear-

ing for further investigatory purposes. Upon advice of

counsel, petitioner rejected that request.

On or about April 16, 1984, while the criminal investi-

gation was ongoing and while subject to disciplinary

charges, petitioner was issued a subpoena by respondent

pursuant to Public Officers Law, Section 61, directing pe-

titioner to appear and testify under oath and to bring with

him a diary he allegedly kept while working for respond-

ent. Upon advice of counsel, petitioner did not appear.

Respondent moved, pursuant to New York Civil Prac-

tice Law and Rules, Section 2308(b), to compel peti-

tioner’s compliance with the subpoena. By decision dated

July 10, 1984, New York Supreme Court, County of Al-

bany (Williams, J.) held that respondent was authorized

by Public Officers Law, Section 61, to issue the subpoena

as part of a gencral investigatory power and ordered peti-

tioner to comply with the subpoena. The Court did noi

pass upon petitioner's constitutional right to invoke the

Fifth Amendment in response to specific questions asked

“For the Court's convenience, a copy of thes statute is attached

as part of Appendix “OC.”

him at the interrogation, although petitioner raised this as

his defense to compliance with the subpoena.

In compliance with the subpoena, petitioner appeared

before representatives of the D.O.T. on August 14, 1984

As of that date, the record establishes that petitioner was

the subject of three distinct and ongoing proceedings to

wit:

(1) acriminal investigation by the Oneida County Dis-

trict Attorney's Office;

(2) a departmental investigation initiated by respond-

ent pursuant to Section 61 of the Public Officers

Law;

(3) a disciplinary proceeding initiated by respondent

pursuant to Section 75 of the Civil Service Law al-

leging several breaches of his supervisory respon-

sibilities as well as violation of various sections of

the Penal Law.

Due to the pending criminal investigation and the na-

ture of questions presented, on August 14, 1984, peti-

tioner was compelled to invoke his constitutional right

against self-incrimination in response to certain questions

posed by respondent's representatives. Petitioner freely

and fully responded to questions which did not require an

incriminating response. In response to particular ques-

tions to which petitioner asserted his right against self-in-

crimination, an attorney for the D.O.T. (Mr. Joseph C.

Davidson, Jr.) responded at various times as follows:

Mr. Davidson: **Well, Mr. Matt, I think I

should warn you that your refusal to answer these

b

questions will be considered further acts of insub-

ordination’’ (R. 155).

Mr. Davidson: **Mr. Matt, | think | am going to

ask you to answer that question and consider that

the question is a direct order for an answer”’ (R.

157).

Mr. Davidson: *‘| would renew my wording that

it is the Department's position that your failure to

answer that question in the face of the direct order

constitutes insubordination’’ (R. 158).

At no time during the interrogation did respondent no-

tify petitioner that his answers were protected by, nor did

petitioner have knowledge of, a grant of immunity for his

incriminating testimony. Petitioner’s assertion of his con-

Stitutional right was met only with orders to answer and

threats that refusal to answer would be considered insub-

ordination which subjected petitioner to discharge.

Based upon petitioner's invocation of his constitutional

right against self-incrimination, respondent preferred ad-

ditional charges against him dated October 2, 1984. These

charges alleged, in substance, that petitioner’s action of

invoking his right against self-incrimination amounted to

acts of ‘‘insubordination”’ subjecting petitioner to disci-

plinary action. 7

Counsel for petitioner requested that a hearing be held

on all charges then pending against petitioner. Respond-

ent denied this request and advised petitioner that a hear-

ing would be held only on the charge of insubordination

for failure to answer incriminating questions. Petitioner

was never given a hearing on the merits of the underlying

charges of official misconduct and criminal facilitation.

Respondent conducted a hearing on October 17, 1984

on the insubordination charge. Subsequently, the hearing

officer found petitioner guilty on the charges of insubor-

dination and recommended to respondent that petitioner

be suspended for sixty (60) days. Rather than suspending

petitioner, respondent rejected the recommendation of

the hearing officer and determined to discharge petitioner

as punishment for his failure to answer questions posed to

him, finding that petitioner ‘‘must bear the responsibility

for his action in thwarting the Department’s orderly pro-

cess of investigation and administration of the State’s

business’’ (R. 19). By letter dated November 23, 1984, re-

spondent advised petitioner that he was discharged from

State service effective immediately.

Petitioner thereupon commenced an action pursuant to

Article 78 of the New York State Civil Practice Law and

Rules, challenging the proceeding on the ground that since

respondent failed to advise petitioner that immunity

would attach to petitioner’s responses by operation of

law, petitioner’s dismissal was in derogation of the consti-

tutional protection against compelled self-incrimination

guaranteed under the federal and state constitutions, and

that the proceedings against petitioner were void. Peti-

tioner further asserted that the determination to discharge

him for willful misconduct was not supported in the rec-

ord by substantial evidence and that the dismissal from

employment after 34 years of faithful and competeni

service was so disproportionate to the offense as to shock

one’s sense of fairness.

The Appellate Division, granting the petition, found

that petitioner was entitled to notice of the automatic re-

ceipt of immunity. The majority of the Appellate Division

granted the petition, holding that ‘‘an employee should be

accurately and adequately apprised of the immunity con-

ferred in return for answering potentially incriminating or

work-related questions as a matter of fundamental fair-

ness.” Matt v. LaRocca, 117 A.D.2d 151, 183 (3d Dep’t.

1986). The Court stated in relevant part:

Where immunity is conterred by the State, the

State cannot penalize the assertion of the constitu-

tional privilege againsi self-incrimination. We con-

clude that an individual can stand on his right

against self-incrimination until it is made clear to

him that he will receive immunity. The record dis-

closes that Petitioner was aware of the criminal in-

vestigation being conducted into the matters which

were the subject of the examination conducted in

August 1984. He was thus entitled to rely on his

Fifth Amendment prerogatives until such time as

he was informed of the grant of immunity (Cita-

tion omitted). Petitioner’s early cooperation in the

matter is to be noted. We find his subsequent re-

fusal to answer questions under oath as not contu-

macious but rather an understandable attempt to

defend himself by the exercise of constitutionally

protected rights.

The New York Court of Appeals reversed the decision

of the Appellate Division, concluding that petitioner was

not requested to waive his right to immunity before an-

swering questions specifically, directly and narrowly re-

lating to his official duties, and that his dismissal did not

violate his privilege against self-incrimination. In so hold-

ing, the Court of Appeals refused to follow, under the cir-

cumstances presented, its decision in People v. Masiello,

28 N.Y.2d 287 (1971), which was predicated upon prece-

dents of this Court.

9

In holding that the employee’s Fifth Amendment rights

were not violated by his discharge from employment for

his failure to answer incriminating questions, the Court of

Appeals acknowledged that the privilege against self-in-

crimination would be violated if a public servant was re-

quired to answer questions upon threat of dismissal and

then thereafter to make use of the incriminating state-

ments in a subsequent criminal prosecution. Additionally,

citing decisions of this Court, the Court of Appeals stated

that the Fifth Amendment would also be violated by a

public employer demanding that the employee waive his

right to immunity in exchange for continued employment,

and may not dismiss that employer for his refusal to do

so. The Court of Appeals refused to recognize, however,

that the public employer had any duty or responsibility to

advise the employee that his answers would not be used

against him in the criminal investigation pending against

him. Although the petitioner was unaware of immunity

and invoked the privilege against self-incrimination in a

good faith manner to protect himself, the Court of Ap-

peals held that his discharge was not in violation of his

privilege against self-incrimination.

Reasons for Granting the Writ.

The decision of the Court of Appeals addressing an im-

portant constitutional issue is in direct conflict with the

decisions of this Court that hold that a public employee

must not be faced with the choice of either incriminating

oneself or face loss of employment.

In this proceeding, the Court of Appeals of the State of

New York ruled that the petitioner’s right against self-in-

crimination was not violated by respondent’s discharge of

him from public employment as the State was not obli-

gated to inform the petitioner that immunity attached be-

10

fore ordering petitioner to answer incriminating ques-

tions. This result is in direct conflict with cases decided by

this Court which have upheld an employee’s right to as-

sert the Fifth Amendment privilege against self-incrimina-

tion when faced with the coercive choice of either incrimi-

nating oneself or facing loss of employment. See Le/-

kowitz v. Turley, 414 U.S. 70 (1973); Uniformed Sanita-

tion Men’s Association v. Commissioner of Sanitation,

392 U.S. 280 (1968); Gardner v. Broderick; 392 U.S. 273

(1968); Garrity v. New Jersey, 385 U.S. 493 (1967);

Stevens v. Marks, 383 U.S. 234 (1966); Raley v. Ohio, 360

U.S. 423 (1959).

The pertinent issue presented herein is whether the

Court of Appeals’ ruling abrogates the constitutional

guarantee against self-incrimination. Because the issue

whether a State employer must affirmatively demonstrate

and advise a witness, who is under criminal investigation,

that his testimony will not be used against him in a subse-

quent criminal proceeding is of vital importance to public

employees of all fifty states, certiorari should be granted

to correct the Court of Appeals’ erroneous ruling and to

avoid conflict with decisions of this Court.

It is well-settled by decisions of this Court that a public

employee may not be discharged for refusing to waive his

Fifth Amendment right against self-incrimination. Gard-

ner v. Broderick, 392 U.S. 273 (1968). The choice of

either incriminating oneself or facing loss of employment

is an inherently coercive choice which is prohibited.

Lefkowitz v. Cunningham, 431 U.S. 801 (1977). The Fifth

Amendment protects the employee from choosing be-

tween ‘‘the rock and the whirlpool.’’ Stevens v. Marks,

supra, 383 U.S. at 243, citing Frost Trucking Co. v. Rail-

road Commissioner, 271 U.S. 583, 593 (1926). Where an

employee faces such a coercive choice and chooses to tes-

1]

tify, the testimony given may not be used against the em-

ployee in a subsequent criminal prosecution. Garrity v.

New Jersey, 385 U.S. 493 (1967). It is equally well-settled

that where an employee chooses not to testify, he may not

be thereafter discharged for refusing to incriminate him-

self. Gardner v. Broderick, supra, 392 U.S. 273. No sanc-

tion or penalty which would make assertion of the Fifth

Amendment privilege ‘‘costly’’ may be imposed. Spevack

v. Klein, 385 U.S. 511, 515 (1967). However, a public em-

ployee may be discharged for refusing to answer ques-

tions narrowly and specifically directed to the perform-

ance of official duties if he or she has not been required

to surrender the benefits of their constitutional right to re-

main silent. Uniform Sanitation Men’s Association, Inc.

v. Commissioner of Sanitation, 392 U.S. 280 (1968).

At issue here is whether petitioner was compelled by re-

spondent to surrender his privilege against self-incrimina-

tion. This Court has made it clear that a witness is consid-

ered to be under compulsion to surrender the privilege

until it is made clear that the immunity will attach to the

testimony given. Stevens v. Marks, supra, 383 U.S. at

246; Raley v. Ohio, supra, 360 U.S. 423. The common de-

nominator in the above-cited cases is that fundamental

fairness dictates that the witness be explicitly and clearly

advised of the existence and extent of immunity. This is

so regardless of whether the immunity is a creature of

statute, or arises out of the Fifth Amendment privilege in

the context of an administrative disciplinary proceeding.

As stated in Stevens v. Marks:

‘‘A witness has, we think, a constitutional right

to stand on the privilege against self-incrimination

until it has been fairly demonstrated to him that an

immunity, as broad in scope as the privilege it re-

places, is available and applicable to him.”’

Stevens v. Marks, supra, 383 U.S. at 233.

12

in the instant case, petitioner was never advised, either

directly or inferentially, that his answers would not be

used against him in a subsequent criminal proceeding.

This information was particularly important due to the

fact that there was an ongoing criminal investigation into

the activities of petitioner and other employees in the De-

partment of Transportation. While propounding ques-

tions which required incriminating responses and threat-

ening petitioner with disciplinary action for his refusal to

answer certain questions, respondent never mentioned or

even alluded to the fact that if petitioner did answer,

those answers would not be used against him. Under such

circumstances, petitioner was entitled to stand upon his

Fifth Amendment right, and he cannot be discharged for

doing so, as he reasonably believed that if he answered the

incriminating questions, his testimony would be used

against him. Petitioner was placed between the ‘‘rock and

the wnirlpool’’; either answer the questions and face

criminal prosecution or not answer the questions and be

discharged. See Confederation of Police v. Conlisk, 489

F.2d 891, 894-895 (7th Cir. 1973), cert. denied sub nom.

Rochford v. Confederation of Police, 416 U.S. 956 (1974);

Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1983).

The burden placed on respondent to impart to the peti-

tioner the fact that the testimony given would not be used

against him is minimal while the risk and consequences to

the petitioner were great. Petitioner should not be made

to speculate as to whether incriminating statements would

be later excluded under Garrity as he was at the time un-

der criminal investigation and his livelihood was threat-

ened. Benjamin vy. City of Montgomery, 785 F.2d 959,

962 (llth Cir. 1986). The fact that petitioner was directed

to answer by respondent does not satisfy the constitu-

tional requirement that he be advised that his answers

13

could be used against him in a criminal proceeding. Kal-

kines v. United States, supra, at 1394.

It is well-settled that the burden is on the state to

affirmatively demonstrate to the witness that a valid im-

munity is his before it may hold him in contempt for re-

fusing to answer questions that would otherwise be in-

criminating. Stevens v. Marks, 383 U.S. 234 (1966). The

injurious effect of the Court of Appeals decision is to

shift the burden from the employer to advise the witness

of the existence and scope of immunity to the employee

who will merely be able to speculate as to whether such

immunity will attach. Such a fundamental shift is com-

pletely inconsistent with the precedents of this Court

which apply an objective standard in determining whether

the Fifth Amendment may be properly asserted. As the

Court articulated in Kastigar v. United States, supra, 406

U.S. at 440, the Fifth Amendment privilege against self-

incrimination ‘‘. . . protects against any disclosures that

the witness reasonably believes could be used in a crimitial

prosecution or could lead to other evidence that might be

used”’ (italics supplied). Petitioner was under investiga-

tion for violations of the Penal Law. At the time of the

hearing, petitioner was unaware and unadvised that im-

munity would be granted by operation of law; therefore,

it was reasonable for petitioner to believe that his testi-

mony could be used in a criminal prosecution. As far as

petitioner knew, he was being forced either to incriminate

himself and thereby subject himself to criminal penalties

or lose his job.

The Court of Appeals’ suggestion that there is no need

to inform the witness of immunity because petitioner was

not before a Grand Jury investigating criminal charges

and since petitioner was assisted and advised by counsel is

misplaced. This Court has never held that the constitu-

14

tional right against self-incrimination attaches only in

Grand Jury proceedings or in proceedings where Counsel

is not present. In fact, the Court has directly found the

contrary to be true. The Fifth Amendment privilege

against self-incrimination may be asserted in ‘‘any pro-

ceeding, civil or criminal, administrative or judicial, in-

vestigatory or adjudicatory”’ (italics supplied). Aastigar,

supra, 406 U.S. at 444. Thus, it is apparent that petitioner

has the Constitutional right to assert his right against self-

incrimination in the administrative proceeding conducted

by respondent. Further, the mere fact that petitioner was

represented by an attorney does not diminish this right or

alter this analysis. Kalkines v. United States, supra, 473

F.2d 1391 at 395.

In its decision, the Court of Appeals misconstrued this

Court’s application of Gardner v. Broderick, supra, 392

U.S. 273; Uniform Sanitation Men’s Association v. Com-

missioner, supra, 392 U.S. 260; Garrity v. New Jersey,

supra, 385 U.S. 492, in that petitioner here chose not to

incriminate himself in response to respondent’s questions;

rather, petitioner chose to be subjected to insubordination

charges. Since petitioner did not incriminate himself, even

upon threat of sanction, the ‘‘automatic immunity’’ that

was necessary to protect the employee in Garrity and

Spevack did not arise. This Court in Garrity v. New Jer-

sey, supra, 385 U.S. at 500, specifically stated that auto-

matic immunity arises only to ‘‘prohibit use in subsequent

criminal proceedings of statements obtained under threat

of removal from office.’’ In Garrity, the automatic use

immunity was employed as a ‘‘shield’’ to prevent the em-

ployee’s testimony from being unconstitutionally used

against him. To suggest that such automatic use immu-

nity existed at the time petitioner invoked the Fifth

Amendment, however, even without his having been ad-

vised of its existence, would permit respondent to utilize

15

such automatic immunity as a ‘‘sword’’ to deprive peti-

tioner of his employment for refusing to surrender his

right against self-incrimination. Such a result is not sug-

gested by the precedents of this Court and is inconsistent

with the reasons for the development of the concept of

automatic ‘‘use immunity.’”’

The discharge of a public employee resulting from an

unconstitutionally coercive choice is prohibited as an em-

ployee should not have to choose between surrendering

his job or waiving his right against self-incrimination

without knowledge of the existence of immunity. Gardner

v. Broderick, supra, 392 U.S. 273. Being forced to make

the choice is improper because, in the absence of knowl-

edge that one will receive immunity if he testifies, such a

choice is inherently coercive. This Court has made clear

that the law will protect the employee from the adverse

impact of the choice made. Therefore, in those cases

where the employee chooses to testify, the Court imposes

automatic use immunity upon that testimony for purposes

of subsequent criminal prosecution. Where, on the other

hand, the employee chooses not to testify, this Court has

consistently held that the State will be prohibited from ex-

acting a disciplinary penalty against the employee for

making such a choice. Uniformed Sanitation Men’s Asso-

ciation v. Commissioner of Sanitation, supra, 392 U.S.

280; Gardner v. Broderick, supra, 392 U.S. 273. The

Court of Appeals’ decision is, without question, contrary

to the decisions of this court; petitioner was removed

from his position of 34 years solely for making the choice

not to incriminate himself.

The Court of Appeals’ reliance on Uniformed Sanita-

tion Men’s Association v. Commissioner of Sanitation,

426 F.2d 619 (2d Cir. 1970), cert. denied 406 U.S. 961

(1970), is misplaced. This was the second case involving

16

the appearances of various sanitation workers before the

New York City Commissioner of Investigation. In the

first case, this Court reinstated fifteen such employees

who had either refused to testify after being advised that

their answers could be used against them, or who had re-

fused to sign grand jury waivers of immunity. In the sec-

ond case, the same plaintiffs were again called to appear

for an inquiry. This time, however, the employees were

explicitly told:

‘*. . . the answers you may give to the questions

propounded to you at this proceeding, or any in-

formation or evidence which is gained by reason of

your answers, may not be used against you in a

criminal proceeding except that you may be subject

to criminal prosecution for any false answers that

you may give...”

Uniformed Sanitation Men’s Association v. Commis-

sioner of Sanitation, supra, 426 F.2d at 621.

Having thus been affirmatively advised and assured

that the answers they gave would not incriminate them,

the employees could then be discharged when they failed

to answer questions narrowly and specifically related to

their job duties even under threat of disciplinary action.

This fact that the employees were directly and clearly no-

tified of their immunity crucially distinguishes the instant

case from the second Sanitation Men’s case. Such affirm-

ative assurances of immunity are critical. Weston v. U.S.

Dept. of Housing and Urban Development, 724 F.2d 943,

473, 946 (F.2d Cir. 1983); Kalkines v. United States, su-

pra, 473 F.2d at 1395.

The mere threat of loss of employment does not, in and

of itself, give rise to ‘‘automatic immunity,’’ the existence

17

and scope of which the employee is presumed to know. It

is the assurances to the employee, made by the employer,

that the statements requested cannot be used criminally

against the employee which enables the employee to make

an informed, non-coercive choice. The Court of Appeals’

determination fails to provide this crucial protection to

petitioner.

The fact that use immunity would attach to petitioner’s

compelled answers is something that petitioner is not pre-

sumed to know. The precedents of this Court place the

burden upon the employer to assure the employee that his

answers would not be used against him criminally. Be-

cause petitioner was not advised that his answers could

not be used against him, the choice he faced was coercive.

As far as petitioner knew, he was being forced to either

incriminate himself or lose his job. Giving testimony

without the benefit of use immunity is equivalent to waiv-

ing immunity. In effect, therefore, petitioner was asked to

waive immunity and his refusal to do so cannot be the

subject of a disciplinary action. Gardner v. Broderick, su-

pra, 392 U.S. 273.

Petitioner found himself in very difficult circumstances

on August 14, 1984. On that date, he was called to give

testimony at an investigatory proceeding under Section 61

of the N.Y. Public Officers Law. As of that date, he had

also been served with disciplinary charges by respondent.

Among the charges were allegations that petitioner had vi-

olated numerous provisions of the Penal Law.? Petitioner

3The charges stated that petitioner had violated the criminal

Statutes set forth below:

§115.00(1)—Criminal Facilitation

§165.15(8}—Theft of Services

$175.30 —Offering a False Instrument for Filing

§195.00 —-Official Misconduct

is

was also aware that respondent had referred information

concerning him to the Oneida County District Attorney

and that an investigation was then ongoing. Petitioner

thus had a legitimate reason to believe that the incriminat-

ing evidence requested of him would be used against him

in a criminal proceeding. See Aalkines v. United States,

supra, 473 F.2d at 1392. Yet, at the same time, petitioner's

employer of thirty-four years was, in effect, threatening

petitioner with loss of his employment if he did not pro-

vide such evidence, although no mention of immunity in

return for providing it was made. The choice thus faced

by petitioner was inherently coercive. It is unfair and in-

consistent with precedents of this Court to condone peti-

tioner’s loss of his livelihood simply because he exercised

his right against self-incrimination.

In the critical situation presented, the employer de-

manded that an employee waive his right against self-in-

crimination or face discharge. In such a situation, the

burden is and must be on the employer to clearly advise

the employee that immunity will attach to his answers.

The burden placed upon the employee by the Court of

Appeals decision to *‘guess"’ or speculate as to whether he

will receive immunity is undue, unfair and unconstitu-

tional. The constitutional privilege against self-incrimina-

tion is too fundamental to our system of justice to allow

the employer to use such privilege as a sword against an

employee, who without knowledge or notice of immunity,

faces incrimination or discharge.

It is clear from the above-stated discussion that the

New York Court of Appeals decided important, as well as

controversial, questions of law in this proceeding. The

Court of Appeals, however, misconstrued decisions of

this Court and misapplied the principles derived from

those decisions. For these reasons, the Court of Appeals

decision must be reviewed and reversed.

CONCLUSION.

For the reasons stated, the petition for a writ of cer-

tiorari should be granted.

Dated: Albany, New York

March 18, 1988

Respectfully submitted,

HINMAN, STRAUB, PiGorS &

MANNING, P.C.

Attorneys for Petitioner

12! State Street

Albany, NY 12207

(518) 436-0751

WILLIAM F. SHEEHAN

EILEEN M. KELLEY

WILLIAM P. GOLDERMAN

la

APPENDIX A—New York State Court of Appeals

Remittitur and Opinion.

Remittitur.

COURT OF APPEALS,

STATE OF NEW YORK.

THE Hon. Sot WACHTLER, CHIEF JUDGE, PRESIDING

*

No. 331

IN THE MATTER

e)

JOHN.A. MATI, SR.,

Respondent,

Vv.

James L. LARoccA, as Commissioner of the New York

State Department of Transportation,

Appellant.

The appellant in the above entitled appeal appeared by

Hon. Robert Abrams, Attorney General of the State of

New York; the respondent appeared by Hinman, Straub,

Pigors and Manning, P.C.

2a

The Court, after due deliberation, orders and adjudges

that the judgment appealed from and order of the Appel-

late Division brought up for review is reversed, with costs,

and determination of the Commissioner reinstated. Opin-

ion by Judge Alexander. Chief Judge Wachtler and

Judges Simons, Kaye, Titone, Hancock and Bellacosa

concur.

The Court further orders that the papers required to be

filed and this record of the proceedings in this Court be

remitted to the Supreme Court, Albany County there to

be proceeded upon according to law.

I certify that the proceeding contains a correct record

of the proceedings in this appeal in the Court of Appeals

and that the papers required to be filed are attached.

DONALD M. SHERAW

Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, December

21, 1987

3a

Opinion.

COURT OF APPEALS,

STATE OF NEW YORK.

3 No. 331

IN THE MATTER

OF

JOHN A. MATT, SR.,

Respondent,

v.

JAMES L. LAROCCA, as Commissioner of the New York

State Department of Transportation,

Appellant.

This opinion is uncorrected and subject to revision be-

fore publication in the New York Reports.

Robert Abrams, Attorney General (John Q. Driscoll,

O. Peter Sherwood & Peter H. Schiff of counsel) for ap-

pellant.

William F. Sheehan, Albany, for respondent.

ALEXANDER, J.:

4a

Petitioner, a supervisory employee with the Waterways

Division of the Department of Transportation where he

had been employed for 34 years, was dismissed in Novem-

ber 1984 for refusing to answer questions directly relating

to the performance of his official duties. In early 1984,

the Department commenced an initial investigation ap-

parently in response to reports of misconduct involving

the unauthorized absence of employees in petitioner’s sec-

tion and the use of State property and facilities for the

personal benefit of employees under petitioner’s supervi-

sion. In the early stages of this investigation, petitioner

cooperated by submitting to an interview by his superiors

and answering numerous questions. Following this inter-

view, petitioner was served with disciplinary charges pur-

suant Civil Service Law § 75, alleging several breaches of

his supervisory responsibilities as well as violations of var-

ious sections of the Penal Law. At that time, petitioner

was suspended for thirty days.

As a result of the Department turning over information

related to these charges, petitioner also became the target

of a criminal investigation conducted by the Oneida

County District Attorney’s Office. It does not appear,

however, that petitioner was ever questioned by the Dis-

trict Attorney’s office in connection with the criminal in-

vestigation.

Before a hearing was held on petitioner’s disciplinary

charges, the Commissioner of Transportation instituted

an investigation of the misconduct in petitioner's division

pursuant to section 61 of the Public Officers Law and re-

quested that petitioner appear to testify under oath as to

matters under his jurisdiction. Petitioner refused. The

Commissioner thereafter served him with a subpoena

duces tecum requiring him to appear and be examined un-

der oath and to produce a diary maintained by him during

Sa

the time periods relevant to the misconduct (Public Offti-

cers Law § 61). When petitioner again refused, apparently

on advice of counsel, a court order compelling his appear-

ance was obtained. Although petitioner appeared with

counsel in compliance with that court order, he did not

produce his work-related diary. Moreover, he refused to

answer questions pertaining to his duties as supervisor,

and on the advice of counsel, repeatedly invoked his Fifth

Amendment privilege against self-incrimination. Notwith-

standing that he was told that a refusal to answer ques-

tions in the face of a direct departmental order would be

considered insubordination,' petitioner persisted in refus-

ing to answer questions that directly related to the per-

formance of his duties as a supervisory employee. Peti-

tioner was not informed by the Commissioner, or the

Commissioner’s counsel at the section 61 proceeding, that

he was entitled by operation of law to immunity from the

use of his answers in any subsequent criminal prosecu-

tion.

New charges of insubordination were preferred against

petitioner as a result of his failure to respond to questions

and his failure to produce his diary. At a hearing held on

those additional charges only, petitioner contended that

because the criminal investigation was still pending, and

because he had not been offered immunity from prosecu-

tion should he answer the questions posed at the section

61 proceeding, he invoked—on his counsel’s advice—his

privilege against self-incrimination. The hearing officer

concluded that, notwithstanding petitioner’s claim that he

had acted on counsel’s advice, petitioner had wilfully re-

fused to answer questions and to produce his diary and

‘Petitioner was advised on three separate occasions by Counsel

for the Department that ‘‘[his] refusal to answer these questions will

be considered further acts of insubordination’’—that ‘‘the question is

a direct order for an answer’’—and ‘“‘that it is the Department’s posi-

tion that your failure to answer that question in the face of the direct

order constitutes insubordination.”’

6a

that disciplinary action is permitted for the willful refusal

tO answer pertinent questions—even in the face of self-in-

crimination. He recommended a two-month suspension

without pay. The Commissioner accepted the hearing of-

ficer’s determination, but rejected the recommended sanc-

tion and instead ordered petitioner discharged, finding

that he ‘thad the benefit of constitutionally sufficient use

immunity’’ and ‘‘must bear the responsibility for his ac-

tion in thwarting the Department’s orderly process of in-

vestigation and administration of the State’s business’’.

Thereafter, petitioner instituted this article 78 proceed-

ing challenging the Commissioner’s determination. He as-

serted that his discharge violated his constitutionally guar-

anteed right against self-incrimination, that the finding of

willful misconduct is not supported by the record, and

that the penalty of dismissal after 34 years of faithful and

competent service is so disproportionate as to be shocking

to one’s sense of fairness (see, Matter of Pell v Bd. of

Educ., 34 NY2d 222, 233).

Addressing only the issue of whether petitioner was en-

titled to notice of the automatic receipt of immunity, a

majority at the Appellate Division, in purported reliance

on our decision in People v Masiello (28 NY2d 287),

granted the petition.2 The majority held that ‘‘an em-

ployee should be accurately and adequately apprised of

the immunity conferred in return for answering poten-

tially incriminating work-related questions as a matter of

fundamental fairness’’ (Matt v LaRocca, 117 AD2d 151,

153). Two justices dissented, finding Masiello inapposite

since here ‘‘the immunity * * * conferred attached auto-

matically as a matter of law.’’ (Matt v LaRocca, 117

AD2d at 154). We now reverse.

. “In granting the petition the Appellate Division directed peti-

\ioner’s reinstatement with back pay and all benefits lost. The parties

having stipulated to a judgment awarding petitioner $50,789.75 in

back pay and benefits, the Commissioner appeals to us as of right

(CPLR S601 [d]) bringing up for review the order of the Appellate Di-

Vision.

7a

It would of course offend the guarantee against self-in-

crimination to require a public servant to answer ques-

tions—even those relating to the performance of his offi-

cial duties—upon the threat of dismissal, and to make use

of the incriminating statements in a subsequent criminal

prosecution (People v Avant, 33 NY2d 265, 271; see,

Lefkowitz v Turley, 414 U.S. 70, 78-79; Gardner v Bro-

derick, 392 U.S. 273, 276-277; Garrity v New Jersey, 385

US 493, 500; Uniformed Sanitation Men Assn. v Com-

missioner of Sanitation, 426 F2d 619, 624 cert. denied 406

US 961). Indeed, we have held that answers ‘‘elicited upon

the threat of loss of employment are compelled and inad-

missible in evidence’ (People v Avant, 33 NY2d at 271,

supra [quoting Lefkowitz v Turley, 414 US 70, 85]; see,

Shales v Leach, 119 AD2d 990). Thus, the Supreme Court

has held that when a public employee is compelled to an-

swer questions or face removal upon his refusal to do so,

his responses are cloaked with immunity automatically,

and neither the compelled statements nor their fruits may

thereafter be used against him in a subsequent criminal

prosecution (see, Lefkowitz v Turley, 414 US 70, 78-79;

Gardner v Broderick, 392 US 273, 276-277; Garrity v New

Jersey, 385 US 493, 500; see also, People v Avant, 33

NY2d 265, 271). The resulting immunity that attaches

when a witness is ordered to answer such questions there-

fore, flows directly from the constitution, attaches by op-

eration of law, and is not subject to the discretion of the

employer.

It is settled, however, 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 rel-

evant questions, or furnishes information indicating that

he is no longer entitled to public confidence’’ (People v

Avant, 33 NY2d 265, 271, supra; see also, Gardner v Bro-

derick, 392 US 273; Uniformed Sanitation Men Assn. v

Commissioner of Sanitation, 426 F2d 619; Shales v

Ra

Leach, 119 AD2d 990, supra). Public employees, charged

with a public trust, do not have an absolute right to refuse

to account for their official actions and at the same time

retain their employmeni. ‘‘To require a public body to

continue to keep an officer or employee who refuses to

answer pertinent questions concerning his official con-

duct, although assured ot protection against use of his an-

swers or their fruits in any criminal prosecution, would

push the constitutional protection beyond its language, its

history or any conceivable purpose of the framers of the

Bill of Rights’? (Uniformed Sanitation Men Assn. v Com-

missioner of Sanitation, 426 F2d 619, 626, supra). As the

Supreme Court observed in Gardner v Broderick (392 US

273), where a public servant (there a policeman) refuses

‘‘to answer questions specifically, directly, and narrowly

relating to the performance of his official duties, without

being required to waive his immunity with respect to the

use Of his answers or the truits thereof in a criminal pros-

ecution of himself * * * the privilege against self-incrimi-

nation would not [be] a bar to his dismissal’’ (Gardner v

Broderick, 392 US 273, 278 [citation omitted]).

Thus, what is proscribed as unconstitutional is to con-

dition public employment upon a waiver of the privilege

against self-incrimination (Gardner v Broderick, 392 US

273, 278, supra). Hence, a public employer may not de-

mand that its employee waive his right to immunity in ex-

change for continued employment, and may not dismiss

that employee for his refusal to do so (Gardner v Bro-

derick, 392 U.S. 273, 278 supra). Here petitioner does not

contend that he was ordered to waive his right to immu-

nity. Rather, he argues that at the time of the Public Offi-

cers Law § 61 proceeding, he was unaware that he would

be entitled to immunity automatically upon answering the

questions posed. Thus, although petitioner now concedes

in his brief to us that immunity would have attached to

his compelled answers by operation of law, he neverthe-

9a

less argues that, as a matter of ‘‘fundamental fairness’’,

he should have been explicitly advised of this immunity,

and that the burden was upon the Commissioner to assure

him that his answers would not be used against him in the

criminal prosecution. Finally, petitioner maintains, be-

cause he was not so advised, his resulting dismissal was in

violation of his privilege against self-incrimination, citing

People v Masiello (28 NY2d 287).

Petitioner, however, misapplies our holding in Masiello

(28 NY2d 287, supra). There, the issue was whether a pur-

ported grant of immunity to a witness who appeared be-

fore a Grand Jury but refused to testify, was a sufficient

foundation upon which to base a criminal contempt con-

viction. The witness had refused to testify notwithstand-

ing having been notified that the Grand Jury had voted,

under § 619-c of the former Code of Criminal Procedure,

to confer immunity. The notice given to the witness pro-

vided for only testimonial or ‘‘use’’ immunity, however,

and not the full transactional immunity afforded by the

Statute. The witness therefore would have proceeded to

testify under the misconception that the scope of the im-

munity he received was less than that to which he was ac-

tually entitled by statute. We held that the witness could

not thereafter be prosecuted for refusing to testify under

those circumstances because ‘‘fundamental fairness’’ re-

quired that a witness not be misadvised—indeed that a

witness be accurately informed—concerning the scope of

immunity conferred in a Grand Jury (People v. Masiello,

28 NY2d 287, 291, supra). Thus, Masiello held only that a

witness appearing before a Grand Jury must be apprised

of the extent of the immunity conferred by statute before

a criminal contempt conviction may be had for the wit-

ness’s refusal to testify (see also, People v. Rappaport, 47

NY2d 308, 313).

The circumstances here are very different from those in

Masiello. Petitioner did not appear before a Grand Jury

ee

~

1Oa

investigating criminal charges; rather, his appearance was

at a civil proceeding convened to investigate disciplinary

charges of work-related misconduct. He was neither re-

quested to waive his privilege against self-incrimination,

nor was he faced with a possible criminal contempt con-

vicuion for refusing to testify; he stood only to be dis-

missed from his employment on charges of insubordina-

tion should he refuse to answer the questions posed by his

employer. These questions specifically related to the per-

formance of petitioner’s official duties: wrongfully per-

mitting an employee to be paid for time spent doing out-

side work for private individuals; approving time sheets

he knew to be inaccurate; and allowing his subordinates

to use State-owned materials and equipment for their per-

sonal benefit. Moreover, unlike in Masiello where the

scope of the immunity conferred depended upon the dis-

cretionary action of the Grand Jury, here the immunity

attached automatically by operation of law. Indeed, the

immunity protecting petitioner flows directly from the

constitution, and neither the Commissioner, nor counsel

representing the Commissioner at the investigatory pro-

ceeding, had the power either to confer the immunity or

to define or alter its breadth.

These critical distinctions persuade us that Masiello

does not require the result urged by petitioner, and the

State was not obligated to inform petitioner that immu-

nity attached before ordering him to answer questions. As

the Commissioner’s representative at the investigatory

proceeding did not have the power to confer immunity, or

to modify the immunity to which petitioner was entitled,

there is no basis for concluding that he nonetheless had an

affirmative obligation to inform petitioner of the auto-

matic attachment of immunity. It is true that the State is

required to inform a witness appearing before a Grand

Jury of the fact that he will receive automatic immunity,

even though, under current law, such witnesses are con-

lla

ferred transactional immunity automatically by operation

of law (see CPL 190.40; People v. Rappaport, 47 NY2d

308, 313). The consequences, however, of refusing to tes-

tify before a Grand Jury—criminal prosecution for con-

tempt—are more serious than those of refusing to answer

questions in a Public Officers Law § 6! proceeding—dis-

missal from public employment. Furthermore, a witness

testifying before a Grand Jury ordinarily does not have a

right to have his attorney present, which is a crucial fac-

tor underlying the State’s obligation to inform the witness

of the immunity conferred in the Grand Jury context. On

the other hand, in this civil proceeding petitioner was as-

sisted and advised by counsel present throughout the

hearing, a situation which does not implicate the danger

faced by a witness testifying before a Grand Jury, who

does not have immediate access to counsel, of unwittingly

forfeiting his privilege against self-incrimination.

We conclude therefore that insofar as petitioner was

not requested to waive his right to immunity before an-

swering questions specifically, directly and narrowly re-

lating to his official duties, his dismissal did not violate

fundamenial fairness or his privilege against self-incrimi-

nation. Moreover, there is substantial evidence in the re-

cord to support the Commissioner’s determination that

petitioner willfully refused to answer the questions posed,

and dismissal under the circumstances is not ‘‘so dispor-

portionate to the offense * * * as to be shocking to one’s

sense of fairness’’ (Matter of Pell v. Bd. of Educ., 34

NY2d 222, 233).

Accordingly, the judgment appealed from and the or-

der of the Appellate Division brought up for review

should be reversed with costs and the determination of re-

spondent Commissioner reinstated.

Judgment appealed from and order of the Appellate

Division brought up for review reversed, with costs, and

I2a

determination of the Commissioner reinstated. Opinion

by Judge Alexander. Chief Judge Wachiler and Judges Si-

mons, Kaye, Titone, Hancock and Bellacosa concur.

Decided December 21, 1987

Ib

APPENDIX B—Decision of the Appellate Division,

Third Department.

SUPREME COURT,

APPELLATE DIVISION—THIRD JUDICIAL DEPARTMENT.

May 15, 1986 $1307

IN THE MATTER

OF

JOHN A. MATT, SR.,

Petitioner,

Vv.

James L. LARocca, as Commissioner of the New York

State Department of Transportation,

Respondent.

= - a J ;

Argued, February 4, 1986.

Before:

Hon. Robert G. Main,

Justice Presiding,

Hon. Ann T. Mikoll,

Hon. Paul J. Yesawich, Jr.,

Hon. Howard A. Levine,

Hon. Norman L. Harvey,

Associate Justices.

2b

Proceeding pursuant to CPLR article 78 (transferred to

the Appellate Division of the Supreme Court in the Third

Judicial Department by order of the Supreme Court at

Special Term, entered in Albany County) to review a de-

termination of respondent which discharged petitioner

from his employment with the Department of Transporta-

Hon.

Hinma 1, Straub, Pigors & Manning (William F. Sheean

of counsel), 90 State Street, Albany, New York 12207, for

petitioner.

Robert Abrams, Attorney-General (John Q. Driscoll of

counsel), The Capitol, Albany, New York 12224, for re-

spondent.

Miko..L, J.:

This matter arose from an investigation of alleged mis-

management and misconduct in section 4 of the Depart-

ment of Transportation’s Waterways Division, which was

supervised by petitioner. At the initial stage of the investi-

gation and before charges were formally brought, peti-

tioner answered questions posed to him by his superiors

regarding the inquiry. On February 28, 1984, petitioner

was suspended for 30 days and concomitantly served with

charges and specifications pursuant to Civil Service Law

§ 75, which, inter alia, contained an allegation that his

breach of supervisory responsibility constituted a viola-

tion of the Penal Law. Petitioner also became the target

of a criminal investigation conducted by the Oneida

County District Attorney stemming from the same events.

The investigation lasted from February 28, 1984 to Octo-

ber 17, 1984. Petitioner demanded a hearing in the disci-

plinary proceeding.

3b

Instead of a hearing, petitioner was requested to submit

tO an examination under oath pursuant to Public Officers

Law § 61. When petitioner refused to attend, a subpoena

was then issued in April 1984 pursuant to Public Officers

Law § 61 directing him to appear and testify under oath

and to bring with him a work diary that he kept. Peti-

tioner Once again refused to appear. A court order pur-

suant to CPLR 2308 (b) was secured compelling peti-

tioner’s compliance with the subpoena. On August 14,

1984, petitioner appeared but, due to the pending criminal

investigation, invoked his Sth Amendment right against

self-incrimination and refused to answer questions or to

submit his diary. During the interrogation, petitioner was

advised that his refusal to answer would be considered in-

subordination. Petitioner was not informed at any time

that if he answered, he was entitled to immunity by opera-

tion of law from any subsequent criminal prosecution

based on any answers he gave. When petitioner failed to

answer questions or produce his diary, additional charges

of insubordination were preferred against him on October

2, 1984.

Petitioner again demanded a hearing on all disciplinary

charges. Respondent advised petitioner that a hearing

would be held only on the insubordination charges dated

October 2, 1984. After a hearing, petitioner was found

guilty of those charges and a 60-day suspension was rec-

ommended by the hearing officer. Respondent adopted

the hearing officer’s findings of insubordination but de-

clined to adopt the recommended penalty, deciding in-

stead to discharge petitioner from service. Respondent

held that petitioner, had he chosen to answer the ques-

tions, would have been cloaked with immunity and that

his refusal to cooperate despite such immunity constituted

insubordination warranting dismissal.

Petitioner challenges the proceedings on the ground that

since respondent failed to advise him that immunity

irae caine nee, |

dl)

would aitach to his responses by operation of law, his dis-

missal was in derogation of the constitutional protection

against compelled self-incrimination (US Const, Sth

amend; NY Const, art 1, § 6) and the proceedings against

hin were, therefore, void. We concur.

When a public employee is compelled to answer poten-

tially incriminating questions relating to his work, he is

automatically cloaked with transactional immunity unde

New York law. An employee should be accurately and ad-

equately apprised of the immunity conferred in return for

answering potentially incriminating work-related ques-

lions as a matter of fundamental fairness (see, People v.

Masiello, 28 NY2d 287, 291; see also, CPL 50.20 [2] [b]

[ii]). Respondent attempted to compel petitioner's answers

under threat of charging him with insubordination. Peti-

lioner was not advised that if he answered, transactional

immunity would attach by operation of law to his test

mony. Under such circumstances, petitioner was entitled

to assert his constitutional privilege in the hearing con-

ducted pursuant to Public Officers Law § 61 (see, Aa-

stigar v. United States, 406 US 441, 444-445) without fear

of dismissal (see, Gardner v. Broderick, 392 US 273).

Where immunity is conferred by the State, the State

cannot penalize the assertion of the constitutional privi-

lege against self-incrimination. We conclude that an indi-

vidual can stand on his right against self-incrimination

until it is made clear to him that he will receive immunity.

The record discloses that petitioner was aware of the

criminal investigation being conducted into the matters

which were the subject of the examination conducted in

August 1984. He was thus entitled to rely on his Sth

Amendment prerogatives until such time as he was in-

formed of the grant of immunity (see, People v. Rap-

paport, 47 NY2d 308, 313). Petitioner's carly cooperation

in the matter is to be noted. We find his subsequent re-

fusal to answer questions under oath as not contumacious

Sb

but rather an understandable attempt to defend himself

by the exercise of constitutionally protected rights.

YESAWICH, JR., J. (dissenting).

We respectfully dissent.

Had the State discharged petitioner for refusing to

waive his privilege against self-incrimination, the appro-

priateness of an annulment would be clear (see, Gardner

v. Broderick, 392 US 273). Such an attempt by the gov-

ernment to displace his Sth Amendment privilege would

have activated an obligation on its part to advise the wit-

ness of the immunity conferred on his answers (see, Peo-

ple v. Masiello, 28 NY2d 287, 291).

But this case differs from People v. Masiello (supra) in

two fundamental respects. First, unlike situations where a

Grand Jury has discretion to determine whether immunity

is to be granted, and the scope thereof, the immunity con-

ferred here attached automatically by operation of law.

Neither the State investigators nor counsel representing

the Department of Transportation had any power to alter

the breadth of that immunity, the sweep of which was as

readily discoverable by petitioner or his attorney as by the

State investigators. Furthermore, it is not without signifi-

cance in this regard that petitioner’s refusal to testify was

not brought about by a sudden and unanticipated inci-

dent, but was the culmination of a long, adversarial proc-

ess so that petitioner had ample opportunity to explore

the implications of invoking his constitutional privilege.

The second and even more compelling reason why in-

vestigators were not obliged to define the extensity of pe-

titioner’s immunity is that this case does not even involve

a displacement of petitioner’s privilege against self-in-

crimination. Rather, the State, quite legitimately, termi-

nated the services of one enjoving a public trust for refus-

ing to account for his activities (see, People v. Avant, 33

ob

NY2d 265, 271; see also, Gardner v. Broderick, supra).

They asked questions, received no answers, and warned

accurately that continued silence would subject petitioner

to punishment for insubordination.

Petitioner may have been forced to choose between ter-

mination and self-incrimination; that, however, is wholly

permissible (see, Gardner v. Broderick, supra; People vy.

Avant, supra). Resort to the threat of termination as a

means of coercing petitioner to waive his privilege against

self-incrimination would have been impermissible, but

that course was not followed. Accordingly, we would con-

firm the administrative determination.

Opinion by Mikoll, J., in which Main, J.P., and

Harvey, J., concur; Yesawich, Jr., and Levine, JJ.. dis-

sent and vote to conlirm in an opinion by Yesawich, Jr.,

;

Determination annulled, with costs, petition granted,

and respondent is directed to reinstate petitioner to his

former position with back pay and all other benefits lost.

le

APPENDIX C—Section 75, Civil Service Law, and

Section 61, Public Officers Law.

$75. Removal and other disciplinary action

1. Removal and other disciplinary action. A person

described in paragraph (a), or paragraph (b), or para-

graph (c), or paragraph (d) of this subdivision shall not be

removed or otherwise subjected to any disciplinary pen-

alty provided in this section except for incompetency or

misconduct shown after a hearing upon stated charges

pursuant (0 this section.

(a) A person holding a position by permanent ap-

pointment in the competitive class of the classified civil

service, Or

(b) a person holding a position by permanent appoint-

ment or employment in the classified service of the state

or in the several cities, counties, towns, or villages

thereof, or in any other political or civil division of the

state or of a municipality, or in the public school service,

or in any public or special district, or in the service of any

authority, commission, or board, or in any other branch

of public service, who is an honorable discharged member

of the armed forces of the United States having served

therein as such member in time of war as defined in sec-

tion eighty-five of this chapter, or who is an exempt vol-

unteer fireman as defined in the general municipal law,

except when a person described in this paragraph holds

the position of private secretary, cashier or deputy of any

official or department, or

(c) an employee in the state service holding a position

in the non-competitive class other than a position desig-

nated in the rules of the state civil service commission as

confidential or requiring the performance of functions in-

tluencing policy, who since his last entry into state service

has completed at least five years of continuous service in

the non-competitive class in a position or positions not so

designated in the rules as confidential or requiring the

performance of functions influencing policy, or

(d) an employee in the service of the City of New

York holding a position as Homemaker or Home Aide in

the non-competitive class, who since his last entry into

city service has completed at least three years of contin-

uous service in such position in the non-competitive class.

2. Procedure. A ~erson against whom removal or

other disciplinary action is proposed shall have written

notice thereof and of the reasons therefor, shall be fur-

nished a copy of the charges preferred against him and

shall be allowed at least eight days for answering the same

in writing. The hearing upon such charges shall be held by

the officer or body having the power to remove the per-

son against whom such charges are preferred, or by a dep-

uty or other person designated by such officer or body in

writing for that purpose. In case a deputy or other person

is so designated, he shall, for the purpose of such hearing,

be vested with all the powers of such officer or body and

shall make a record of such hearing which shall, with his

recommendations, be referred to such officer or body for

review and decision. The person or persons holding such

hearing shall, upon the request of the person against

whom charges are preferred, permit him to be represented

by counsel, or by a representative of a recognized or certi-

fied employee organization, and shall allow him to sum-

mon witnesses in his behalf. The burden of proving in-

competency or misconduct shall be upon the person

alleging the same. Compliance with technical rules of evi-

dence shall not be required.

3¢

3. Suspension pending determination of charges; pen-

alties. Pending the hearing and determination of charges

of incompetency or misconduct, the officer or employee

against whom such charges have been preferred may be

suspended without pay for a period not exceeding thirty

days. If such officer or employee is found guilty of the

charges, the penalty or punishment may consist of a repri-

mand, a fine not to exceed one hundred dollars to be de-

ducted from the salary or wages of such officer or em-

ployee, suspension without pay for a period not exceeding

two months, demotion in grade and title, or dismissal

from the service; provided, however, that the time during

which an officer or employee is suspended without pay

may be considered as part of the penalty. If he is acquit-

ted, he shall be restored to his position with full pay for

the period of suspension less the amount of compensation

which he may have earned in any other employment or

occupation and any unemployment insurance benefits he

may have received during such period. If such officer or

employee is found guilty, a copy of the charges, his writ-

ten answer thereto, a transcript of the hearing, and the

determination shall be filed in the office of the depart-

ment or agency in which he has been employed, and a

copy thereof shall be filed with the civil service commis-

sion having jurisdiction over such position. A copy of the

transcript of the hearing shall, upon request of the officer

or employee affected, be furnished to him without

charge.

4. Notwithstanding any other provision of law, no re-

moval or disciplinary proceeding shall be commenced

more than three years after the occurrence of the alleged

incompetency or misconduct complained of and described

in the charges provided, however, that such limitation

shall not apply where the incompetency or misconduct

complained of and described in the charges would, tf

4c

proved in a court of appropriate jurisdiction, constitute a

crime.

$61. Investigations by state officers

Every state officer, in any proceeding held betore him,

or in any investigation held by him for the purpose of

making inquiry as to the official conduct of any subordi-

nate officer or employee, shall have the power to issue

subpoenas for and require the attendance of witnesses

and the production of all books and papers relating to

any matter under inquiry. All such subpoenas shall be is-

sued under the hand and seal of the state officer holding

such proceeding. A subpoena issued under this section

shall be regulated by the civil practice law and ruics. The

testimony of witnesses in any such proceeding shall be un-

der oath and the state officer instituting the proceeding

shall have power to administer oaths. In case of state

boards or commissions, any member of the same, or,

when duly authorized by resolution, the secretary of such

board or commission, shall have power to issue sub-

poenas and administer oaths for the purposes of this sec-

tion.