Motion to Dismiss or Affirm — Gardner v. Broderick

=: ee Ee lees

.

No. 635

ROBERT VINCENT GARDNER,

| . Appellant,

v.

VINCENT L. BRODERICK, as Police Secustnclener’ of ©

the ad of New York and THE CITY OF NEW YORK,

Appellees.

On po from the.Court of Appeals of the |

State of New York -

SOS MOwome

MOTION TO DISMISS OR AFFIRM

x J. Lez Rangr,

: Corporation Counsel,

Attorney for Appellees,

Municipal Building,

New York, N.Y. 10007.

Srantey BucHssBaumM,

‘ Roszer T. HantTmany,

of Counsel.

- : \

=

F “ * 4

PAGE

QUESTION PRESENTED ..........0+:.:-cs:cccssepeeepeecseesestsesennnennnens 2

a i ndisesavsccsccstonledrsmnarcasheS tgisaaoesenensosssiesenit 3

_A. Charge Against Appellant 0.0.0... Cae

B. Departmental Hearing ~........-.-.---- en a

Assistant District Attorney Andreoli’s Tes-

CEEROTEG, ......000scccevsccesscscsncnreses <i sovssessecesnnenss 38

Appellant’s Grand Jury Testimony ................ 5

Motion to Dismiss ..............:::::::cscsteseeserseeseeeeeees 6

Appellant’s Case ..............08 ssconssteesinaanainies silchas 6

©. Commissioner’s Determination ............-....+ 6

ARGUMENT . . : o-

The dismissal of a policeman does not viola

his rights under the United States Constitution

‘when the dismissal is pursuant to Article I, Sec-

ion 6, of the New York Constitution and Section

_ 1123 of the New York City Charter, which require

a public employee to be discharged if he refuses

to sign a waiver of immunity and to answer rele-

vant questions before a grand jury concerning his

conduct and performance of official duties and

which have been interpreted to require a hearing

before such discharge at which the public em-

ployee is afforded an opportunity to explain his

refusal to waive immunity or to answer such ques-

tions : | 5 q

PPUTTTTTTTTT TT. Trt dt eel

_ConcLusion

Ph

icici antibtdtsa et . 4 bi

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II

CASES CITED

; : PAGR

Beilan v. Board of Education, 357 U. S. 399 (1958)... 8

tia: v. Murphy, Matter of, 24 A D 2d 737,. 263

-N.Y.S. 2d 360 (1965) Re isso adapivaisasadamea eae ek ied

', Gardner v. Murphy, Matter of, 46 Mise. 2d 728, 260

, N.Y.S. 9d 789 (2965) occ. 9

Garrity v. New Jersey, 385 U.S. 493 TEP icccin soe 7, 9,10

Hiawassée Power Co. v. Carolina-Tenn. Co., 252 v. S..

| _- Seeettovienenzacs Sinn Pany nana ane aE ion “12 .

Kansas Endowment Asso. v. Kansas, 120 U. S. 103 |

GE UE EEA Tot a 12

a ere v. Murphy, Matter of, 25 A D 2d 197, 268

| be N.YS. 2d 265 (1966) isi naa ssh Dara cnpw ib dans tasputasioan e

a ;

Lerner v. Casey, 357 U. S. 468 ET 8

McGoldrick v. Compagnie wanna 309 U: 8. 430

(1940) eidinks fosseereeesnecernseeeennne sailed a lcshaccpeneconiiea etaeis «212

Nelson v. ei of Los Angeles, 362 U.S.1 (1960) . 8

Scholl v. Bell, 125 Ky. 750, 102.S.W. 248 (1907) baasubuees 11

Slochower v. Board ail om 350 U. S. 551

pierre atets Mista tial insdawabcounakensicciasstouetvarsotesscacatas 7, 9,11

pevack v. Klein, 385 U. S. OR, SEED on aceicssosccvvccessoeeesses 10

Steinberg v. o— States, 141 Ct. Cl. 1, 163 F. Sains

590 (1958) pe Miriahcaid sdieninsailvniniiunsesgacliacssendbisnatavactoBve, 11

Wilson v. Cook, S37 U. S. 474° aces AE cS SARE AT 12

IN THE

“Supreme Court of the Wnited- States

October — 1967

No. 635

‘Rosert VINCENT GARDNER,

Appellant,

v.

Vincent L. Bropertcxk, as Police Commissioner of the

aed of New York, and Tue Crry or New York, :

Appellees

e

On Appeal from the Court of Appeals of the

State of New York

eh

MOTION TO DISMISS OR AFFIRM

_ Appeliees in the above-entitled case, pursuant to a re-

quest of this Court transmitted by its Clerk, moves to dis-

miss or affirm the appeal on the ground that the questions

presented are so insubstantial as not to need further argu-

ment. .

ve Bee ee ee ee

2

~

Question Presented

Where a police officer, after being called before a grand

jury and refusing to sign a waiver of immunity with respect

to testimony concerning the conduct of his office and the

performance of his official duties, is granted a heari ing at

which he fails to offer any explanation of such refusal and.

is thereafter dismissed from his position pursuant to

Article I, Section 6, of the New York Constitution and Sec-

tion 1123 of the New York City Charter, does such dismissal

violate his rights under the United States Constitution?

Facts

A. Charge Against Appellant

‘The charge against ° -the a feos was, as follows

(RA 1):*

“The District iis of New York County has

advised the Police Commissioner that you were called

and appeared before the Grand Jury. of New York |

County on the 6th day of August, 1965, and that you.

refused to waiveeimmunity from prosecution as pro-

vided in. Section 1123 of the New York City Charter

' . and Article I, Section 6 of the Constitution of the State

of New York. ©

‘*You are, therefore, directed to appear before a

Trial Commissioner in the Board Room on the second

‘ floor of Police Headquarters, 240 Centre Street, New

- York, New York, on the 10th day of August, 1965, at

2:30 P.M., to show cause why your employment as a

* All references are to pages of the Respondents’ Appendix i in the

New York Court of Appeals unless otherwise indicated. er

7 3 2

member of the Police Department should not be termi-

nated and your office vacated as prescribed by the

aforesaid provisions of Taw.”

B. Departmental ‘Hearing

The charges against the appellant were tried before’

Leonard KE. Reisman, Hearing Officer, on August 10, 1965.

The appellant was present and was represented by counsel

(RA 2).

At the hearing, the Police Department introduced in

evidence’ a letter from Mr. Andreoli, Assistant District

Attorney, New York County, advising the Police Commis-

sioner that appellant had refused to sign a limited waiver

of immunity (RA 3, 5). -A copy of the notice of the charge

was offered in evidence and was objected to by the appel-

lant, who also moved to have two other charges then

pending against him included in this limited hearing. The

Hearing Officer overruled the objection, denied the motion

and admitted the letter from the District Attorney’s Office

. and the notice of the charge in evidence (RA 3-5).

_ Assistant District Attorney. Andreoli’s Testimony

Mr. Peter D. Andreoli testified that the appellant was

called before the Second August 1965 Grand Jury in New

York County on August 5, 1965, and was tendered a limited

Waiver of immunity but was not placed under oath (RA 6).

He further testified that the appellant was advised that

the Grand Jury ‘‘wished to question him concerning the

conduct of his office in the performance of his duties’’ and,

at appellant’s request, there was an adjournment to enable

- him to discuss the limited waiver with his seiaaed (RA).

Ct "

phat pe pe ee ee

¢ 4

On August 6, 1965, appellant reappeared and was ad-

vised of his rights and the nature of the -investigation,

which was to determine whether the crimes of conspiracy .

to bribe public officers had been committed, specifically

concerning bribes by gamblers to police officers to aid in

the continuance of unlawful gambling (RA 7- 8).

- The appellant then refused to sign a waiver of immunity |

because ‘‘his attorney told him he was a target of an in- -

vestigation” (RA 7, 8, 20). |

The Department next offered the unsworn statements of

appellant before the Second August 1965 Grand Jury and.

a copy of the limited waiver of immunity, which were ad-:

mitted in evidence over objection (RA 7,8, 12-23).

On cross-examination, Mr. Andreoli testified that appel-:

-lant appeared before the Grand Jury pursuant to a sub-

poena and that he was a potential defendant of the investi-

gation (RA 9). He further testified that, had the appellant

signed the limited waiver of immunity, he would have been .

questioned at that time.

The Court order releasing the Grand Jury minutes was

_ then admitted in evidence (RA 10). .

2

Appellant’s Grand Jury Testimony |

The grand jury minutes before the Second August 1965.

Grand Jury, which were admitted in evidence (RA 7-8),

disclosed that appellant appeared as a witness and was not

sworn. He was advised of the nature of the Grand Jury

investigation, which he stated he understood and had been

aware of since June of 1964 (RA 13). After his constitu-

©

X

A

saree:

tional rights and his duty to testify under the Constitution |

of the State of New York and the New York City Charter:

if he wished to retain his public office had been explained, -

appellant: stated that he was represented by counsel who

was not present at the time and that he, therefore, re-

quested an adjournment to show the limited waiver of

immunity to his attorney. This Tequest was isi (RA

14-16)..

if

> >

. On August 6, 1965, ‘todines was roused as a witness,

but was not sworn. He was again informed of the nature —

of the Grand Jury investigation (RA 19f.. He stated that

he had discussed his constitutional rights and his ‘duty to |

testify with his attorney and stated, ‘‘On the advise of my ©

‘attorney I have-been regarded as a'target of this-investiga-

tion, and you have no authority to question me.’’. He was

then advised that he had been called before the Grand

Jury as a public officer to testify ‘concerning the: perform- ©

ance of his duties as a police officer (RA 20). Appellant

then refused to sign the waiver-of immunity (RA 21).

Motion to Dismiss

Decision on the motion to dismiss the charge because the

appellant had been subpoenaed and was a target of the

investigation was reserved (RA 11). _

‘i Appellant's Case

Appellant. did a effer any evidence on’ his behalf or: - ‘

offer any explanation of his refusal to sign ‘a waiver of

immunity (RA a

6

~~

C. Commissioner’s Determination |

In the report of Hearing Officer Reisman, dated August

a, 1965, he found that appellant chad been called before the .

', Grand Jury and had refused to sign a waiver of immunity

as required by Section 1123 of the New York City Charter.

He recommended that appellant’s employment be termi-,

nated and his office vacated (RA 24).

. Based pm these findings and recommendations, Police

Commissioner Broderick ordered appellant’s office vacated

(RA 25). a6

DR at

—- se

a

ARGUMENT

The dismissal of a policeman does not violate his

rights under the United States Constitution when the

dismissal is pursuant to Article I, Section 6, of the

New York Constitution and Section 1123 of the New

York City Charter, which require a public employee

to be discharged if he refuses to sign a waiver of

immunity: and to answer relevant questions before a

' grand jury concerning his conduct and performance

of official duties and which have been interpreted to

_ require a hearing before such discharge at which the

public employee is afforded an opportunity to explain

his refusal to waive immunity or to answer such ques-

tions. ,

(1)

' The appellant argues that to ‘dismiss him for refusing to |

waive immunity and testify before a grand jury consti-

tutes a violation of his rights under the Fifth Amendment. '

He relies primarily on the cases of Slochower v. Board of

Education, 350 U. S. 551 (1956) and Garrity v. New Jer-

sey, 385 U. S: 493 (1967). ;

Slochower involved the dismissal of a teacher at a pub-~

lic college pursuant to Section 903 of the New York City

Charter because he had refused, before a Congressional

committee, .to answer questions concerning membership in

the Communist Party. The opinions of this Court first

made it clear that a sinister meaning could not be imputed

merely because a person exercised his right under the Fifth

_ Amendment to refuse to testify. The opinion then said

thaf Section 903, as interpreted and applied,’ operated to

discharge every employee who invoked the Fifth Amend‘

ao

ment (p. 558). It went on to say that the questions asked

were being taken as confessed and that no consideration

was being given to such factors as the subject matter of

the questions or justification for the exercise of the privi-

lege.

It then said (p. 558):

‘‘Tt is one thing for the city authorities themselves

to inquire into Slochower’s fitness, but quite another

for his discharge to be based entirely on events oc-

curring before a federal committee whose inquiry was

announced as not directed at ‘the property, affairs, or ©

government of the city, or * * * official conduct of city

employees.’ ”’

The case, therefore, appears to have been decided. on

two grounds. One related to the nature of the inquiry at

which the refusal to testify occurred. ‘The other empha-

sized the automatic discharge for exercising the Fifth

Amendment right before an agency other than the em-

‘ployer>—the absence of an opportunity for the employee

to explain his exercise of the privilege or for the employer

to consider “the circumstances of the refusal to answer.

Other peru of this — hold that a public em-

. ployee who fails to answer: questions ‘relating to his em- |

ployment may be dismissed pursuant to a relevant statute

if he has had arf opportunity to explain his refusal at a

hearing befgre-an appropfiate body. Beilan v. Board of

Education, 357.U. 8. 399 (1938) ; Lerner v. Casey, 357 U.S.

. - 468 (1958); Nelson v. County of Los Angeles, 362 ” Ss. 1

(1960).

y

. ee enw

9

New York City Charter, Section 903, involved in the

Slochower case, and its successor sectjon, Section 1123 of ..

the City’s new charter, are identi¢al. Both, if read liter-

ally, require an automatic dismissal of an employee for -

refusal to testify at specified hearings or inquiries. Never-

theless, after the Slochower decision, the New York courts

treated the section and Article I, 46, of the New York Con-

stituti as requiring a hearing before dismissal. Matter

of Conlon v. Murphy, 24 A D 2d 737, 263 N.Y.S. 2d 360

(1965). The same rule was applied in the two gases de-

cided under the title of Matter of Gardner v~ Murphy, 46

Mise 2d 728, 260 N.Y.S. 2d 739 (1965). As a result the

appellant herein was. given a hearing and, thereafter, dis-

missed. The companion case was reversed: because of its

peculiar circumstances. Matter of Koutnik v. Murphy,-25

A D 2d 197, 268 N.Y.S. 2d 265 (1966), app. to aad —

Court of Appeals pending.

In Garrity it was held that answers given by police offi-

cers to questions asked them in the course of an Attorney

General’s investigation could not be’ used against them in

a criminal prosecution. The answers were excluded on the

ground that they were coerced confessions becatse the

‘police officers were faced by-a choice of either answering

the questions or forfeiting their jobs by reason of a New

' Jersey forfeiture of office statute similar to the New York

Constitution. and City -Charter provisions here involved.

This Court did not pass on the validity of the forfeiture

of office statute. It confined itself to holding that answers

given under threat of its application are coerced .and,

therefore, cannot be used in a criminal prosecution of the

police officers. °

10 7

In the companion case of Spevack v. Klemm, 385 U.S. 511

. (1967), this Court held that a lawyer cannot be disbarred

because he invoked the Fifth Amendment as the ground for

refusing to honor a subpoena to produce financial records

and for refusing to answer questions relevant to charges

of misconduct in carrying on_his law practice. It said that.

the threat of disbarment was a powerful form of compul-

sion to make a Tawyer relinquish the. Fifth Amendment

privilege.

\

Mr. \ Justice Dovucias, who spoke for the majority in

both the, Garrity and Spevack cases, wrote the following

footnote in tlie Spevack opinion (385 U.S. at p. 516) :

**3. ‘Whether a policeman, who invoked the privi-

lege when his conduct as a police officer is questioned in

disciplinary proceedings, may be discharged for re-

fusing to testify i is a question we do not reach.’’ -

Mr. Justice Forras, in his concurring opinion in that case,

said (385 U.S. at p. 519): Ge

‘But I would distinguish beteeen @ lawyer’s right

to remain silent and that of a public employee who is

- asked questions: specifically, directly, and narrowly re-

lating to the performance of his official. duties as dis-

tinguished from his beliefs or other matters that are

- not within the scope of the specific duties whieh he

undertook faithfully to perform as part of his employ-

ment by the State. This Court has never held, for. °

example, that a policeman may not be discharged for

refusal in disciplinary proceedings to testify as to his

conduct as a police officer.”

The quoted reservations apparently apply to an auto-

matic discharge of a police officer for refusing to testify.

°

11

>

Here the dismissal was not automatic. At the hearing

granted appellant subsequent to his refusal to waive im-

/~ ,

munity, he failed to offer any explanation for such refusal. -

Stemberg v. United States, 141 Ct. Cl. 1, 163 F. Supp.

590 (1958), relied on by appellant, held that a statute which

automatically révoked a federal pension as of the date that

the pensioner refused to testify before a grand jury, federal

court or congressional committee was invalid. The Court

relied’ on the Slochower case.

It should be recalled that the Grand Jury investigation

was concerned with a conspiracy to bribe police officers to

permit illegal gambling’ operations, that the appellant was

- advised of the nature of the investigation and that he was

requested to sign a limited waiver of immunity (RA 12,

RA 19). The waiver was limited to matters ‘‘concerning

the conduct of my office on the performance of my official

duties’’ (RA 22).

Appellant, as a police officer, had a duty to furnish the

appropriate authorities with information pertinent ‘to his

employment. This is especially significant where the con-

duct in question relates to the administration of justice and

the integrity of the Police Department.. His refusal to

sign a limited waiver of immunity in this investigation

concerning the bribery of police officers and his failure,-at

his hearing, to give reasons for his refusal are inconsistent

with his duty as a police officer. Having breached his duty,

appellant was properly dismissed.

Particularly apt is the following statement in Sekoll v.

Bell, 125 Ky. 750, 102 S.W. 248, 261-262 (19073:

-

‘‘Here were police officers being interrogated as to

existence of. crimes they were paid to prevent, if

possible; if not, to expose and punish afterwards; and

yet they‘one and-all refused to answer ‘under advice

_ of counsel.’ Suppose a secret murder had been com-

mitted, and the police officer on that beat, when asked

about it, should say, ‘I decline to answer for fear of

_ incriminating myself.’ This, under the rule invoked,

would protect the witness from answering; but how

long would it justify his retention on the roll. of the

_ police? What would be thought of those who left the

- public safety in his hands fonger than it would sian ad

* a him?’

| , (2)

The appellant also argues that he has been denied equal .

protection of the laws (Juris. Statement, pp. 6-7). The

’ petition in the New York Supreme Court instituting this

proceeding alleges in general terms that there has been a

| _ denial of equal protection of the laws (Par. ‘‘Sixth’’). ‘The

issue, however, was: not presented to the New York Appel-

late Division or to the Court of Appeals. And there is not

the slightest indication that the New York courts ever con-

sidered the issue. It would appear, therefore, that it can-

~ not be raised on this appeal. Hiawassee Power Co. v. Caro-

lina-Tenn. Co., 252 U. S. 341, 343-344 (1920); McGoldrick.

- y, Compagnie Generale, 309 U. S. 430, 433-434 (1940) ; Wil--

son v. Cook, 327 U. S.'474, 483-484 (1946). Moreover, the

‘ reference in the petition to equal protection. of the laws

does not specifically refer to the Uniced States Constitution

despite the fact that there also is an.equal protection clause

in Article I, §11, of the New York Constitution. Kansas

Endowment Asso. v. Kansas, 120 U. 8: 103, 104 (1887). .

In any event, the appellant’s equal protection argument

lacks merit. It appears to assume that we are dealing with

a

StanLtey BucussBavm,

13

a case where the police officer has testified before a grand

jury and that such testimony is being used as the basis for

a dismissal, which is not what occurred in the present case.

. At the least, it assumes that the New York Court of Ap-

peals has held that the burden of proof of misconduct,

which ordinarily is on the party seeking to have a police

officer dismissed, is on the appellant in the present case.

All that has been held, however, is that a police officer

who has refused to furnish information to a grand jury re-

garding the conduct of his office and the performance of his

official duties may be discharged unless he offers an appro-

priate -explanation for stch refusal. This applies to all

police officérs. Even if it varies from the rule applicable

under other circumstances, it is reasonable; and it is not

discriminatory because of its uniform application to all

_ police officers pursuant to the New York Constitution and

the New York City Charter, as a since the

Slochower decision. |

CONCLUSION

The appeal to this Court from the judgment of the

New York,Court of Appeals should be oe, or

the ju ent ofemed..

Janué

_ Mespectiully submitted,

J. Lee Rankin,

- Corporation Counsel,

Attorney for Appellees,

Municipal Building,

New York, N.Y. 10007.

Rosert T. HarTMann,

of Counsel.

~s