Appellees Brief — Gardner v. Broderick

APR 13. 1938

IN THE

Supreme Court of the United States

OCTOBER TERM, 1967

No. 635 2 x

Rosert ViIncenT GARDNER, :; . &§

Appellant,

wo.

Vincent L. Bropericx, as Police Commissioner of the

City of New York, and Tue Crry or New York,

; Appellees.

Eee I Ay Re Py ae eae

Ox APPEAL FROM THE CouRT OF APPEALS

OF THE Strate or New York

:

“ ;

APPELLERS’ BRIEF i

J. Lee RANKIN, © i

Corporation Counsel, :

Attorney for Appellees, i

Municipal Building, |

_ New York, N. Y. 10007.

Z e . : ¢ 4

Norman ReEDLICcH, -

‘SranLex. BucHSBAUM,

. Rosert T. Harrmawy, .

of Counsel. ,

~ *¢ * J

- . ; ,

nS

- QB 249 Press of Fremont Payne. Inc., 80 Washington St., N. Y.—BOwling Green 9-8153 °

‘

™~

TABLE OF CONTENTS

Statement ...--- soweewes Leseoseues eocceee wiapeces

Question Presented for Review *...---- ~ Veena 2

i i as cakyaenarasvseewenntyveses 2

A. Charge Against Appellant ..----------- oes 2

B. Departmental Hearing ..+..:-2--)e++fe+0++ 3

+ Assistant District Attorney Andreoli’s Testi-

MONY .-eeeeeeeeees << Cahawsennntedas re 3

Appellant’s Grand Jury Testimony ....------- . 4

- Motion to‘Dismias ........0ceeeceeeeesees err 5~

Appellant’s Case ...----+-++++- i ie enbave 5

C. Commissioner’s Determination .......---+- 5 ;

Opinions Below ....---- siatnstudavee se bees soneess ‘0

. Constitutional Provision and Statute Involved nf seed 5

Summary of the Af@ument .....-.--- Se cacheawere 8

Avoument—The provisions of Articlé I, Section 6,of

the New York State Constitution and Section | 4

1123 of the New York City Charter are constitu-

tional: Those sections require & public employee

to- be discharged if he refuses to sign a waiver

of immunity or to answer questions before @

grand jury, concerning the conduct of his office

and the pefformance of his official duties. Any

-such testimony would be inadmissible in a crimi-,

nal prosecution of the employee. The State Con- ©

stitution and the City Charter sections have been

construed tg limit the required waiver to one re- )

stricted to conduct of his office and his official

duties and to permit discharge of the employee —

_- only after he has had a hearing at which he has

- an opportunity to explain his refusal ....------ - 9

arecane RON! (Ei

ABS gee oe

DLN GOTO GA I CGE BB 1h Bl wdied

.

- o Bae

“ee he a) E

ii- TABLE OF CONTENTS

», =i ,

or . PAGE

eee Sear es beacons cea abs 2

MINE hiss eins csns ore are . 2

Waiver of Immunity (Department’s Exhibit 4) ..:.. 23

“TABLE OF Avrnorrmes '

Beilan v. Board of Education, * 357.U. S. 399-

Pn. .estneuNkcasekas endian iene kcnd 8, 12, 13, 19

Canteline v, McClellan, 282 N .Y. 166, 25 N. E. 2d

- 972 (1940) ....... RESALES 10:

a v. Police Commissioner, 33 Cal. ken 2d 564,

4 fe fg: Be ee sorrer rr rer es ~ W

Conlon v..Murphy, Matter of, 24 Pe D. 2d 737, 263

N.Y.S. 2d 360 (1965) 2... ..6.--- 00. eee e ee eet 14

Drury v. Hurley, 339 Ill. App. 33, 88 N.” E. 2d 728. °

(1949), cert. denied, 339 U. S. ‘983 (1950) .....- 13

Fallon v. New Orleans Police Department, 238. La. a

531, 115 So. 2d 844 (1959) ee ee ne 13

Gardner v. Murphy, Matter of, 46 Misc. 2d 728, 260° ~—.

N.Y.S. 2d 739 (1965)... 6... eee eee e ee eee oS

Garner v. Board-of Public Works of Los 5 Angeles

a 2 eee 16

Garrity v. New Jersey, 385 U. S. 493 (1967) 6, 8, 11,14, 15

Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U. Ss.

DU SU Ra de cde dncn sdk dens bendascuynstpees fon

Kansas Endowment Asso. v.. Kansas, 120 U. Ss. 103 -

SEED. nants eaWeaircecnnngeensdes ces bas ced 21.

Koutnik v. Murphy, Matter of, 25 A. -D. od 197, 268

NYS. 2d 265 (1966) ....... rere tre be eeeceecees 14 .

TABLE OF CONTENTS iii -

- PAGE

_ Lerner v. Casey, 357 U. S. 468 (1958) ........ 8, 12, 13,.19

MeAuliffe v. New Bedford, 155. then. 216, 29 N. E.

od, Stee ene ae | ae

Mc ficGoldrick v. Compagnie Generale, 309 U. S. 430

(1940) ete Ae ee eer eee, TTT eee -- 2.

Murphy v. Waterfront Commission of New ‘York, 318 a

U.S. 52 CPA aca banch vs wes emee. 16

: Nelson v. County. of kan Angeles, 362 U. s. 1 (1960) .

a ‘as

Roche vy. Police oo 33 Cal. App. od 574,

92 P. 2d 422 (1939) PCE RULLS peace eh ban oF

~ Vv. “~_ * of New York, Matter of, 998 N. Y. 16,

3 126 N. BE. 350 (1920) ..............---------- -

Scholl v. Bell, 195 Ky. 750, 102 S. W. 248 (1907).. 13,1 19, 20

Slochower v. Board of Edueation, 350 U.'S. 551

(1956) eee eT Te Ce eee oe 8,11, 12; 13, 16, 22

heise Vv. Philadelphia, 305 Pa. 1, 156 A: 245 (1931) 13.

Spevack v..Klein, 385 U.S. 511 (1967) ..... 6,8, 11, 14,15 |

Steinberg v. United States, 141 Ct. Cl. 1, 163 iF

Supp. 590 (1958) ........ Hadeeanweeesegeacuss 16 .

United — v. Lovett, 328 U. S. 330 (1946) . eer iaat 16, 17

| Wilson v. Cook, 327 U.S. 474 (1946) ....... Seki pea tae

iv - ‘TABLE OF CONTENTS

Constitutional and? Statutory Provisions? |

| oe ; | PAGE

United States Constitution: ;

= i ia 5 occ ernanee 9, 11, 12, 16, 17

New York Constitution: | |

Article I, Section 6.(1954) ....... ",. 2,7, 9,10, 18, 17

a I, Section 11 (1938) ......---- Ee alae,

« New Y ‘i City Charter: | | |

"Section 903 (L. ah toi 10, 11,13

ee Oe 5 «os esctzets ead 2,5, 7, 8, 9, 11, 13, 17

| California: | |

Cal. Stat. 1941, c. 67 ot ee kircwan eae ears =

District of Columbia:

, D. C. Code §1-319 (Supp. 1958) rer reeetry . 9

Lowisiona: | | 7 .

La. Const. Art. 14, §15(P) {1) .-.........0.. a

La. Rev. Stat. Ann. § 38:2128 (1950) ....... oe

Maryland: «s

Md. Ann. Code, Art. 69 §11 (1953) .......... ——-.

New Jersey: | . oe

_N. J. Stat. Ann. § 2A:81-17.1 (Supp, 1964): . 9

Other Authorities:

"In the: Matter - of: the Investigation of the: Depart-

- ments of the Government of. the City of New

_ York, Final Report by Samuel Seabury, Deceth-

eS ede rarer. 10.

ie THE

Gulia Court of the United States

OCTOBER TERM, 1967 = *

No. 635

Rosert VINCENT GARDNER,

ae oe : oe _ Appellant,

\ “En ; _ v.

Vincent L. Broperick, as Police Commissioner of the

City of New York, and i: Crry or New York,

Appellees. se

On APPEAL FROM SS or APPEALS , 4

OF THE State or New York |

4

> ‘ —

APPELLEES’ BRIEF

“Statement F &.

This js an appeal from a final wieeiaa of tie New

York Court of Appeals [R. 41-47, 20 N Y 2d 227, 229 N. E.

2d 184 (1967)], affirming a judgment of the Supreme Court

of the State of New York, Appellate Division, First; De~-

,partment [R. veontne .D 2d 800, 279 N.Y.S, 2d 150

a which confi a determination of the Police |

2

«<B

4

9

4

:

ere nny ated ki Sided < 2 5: 7 5 A

ve Mi PE tie) and tae tele ali oN A By co CANE CLARE ARB ALB St SEAN thie? baie shoe vas 2 Ua he ibe Hi 2s

2.

Commissioner dismissing appellant from the position of

patrolman. in the Police Department of the — of New

York. Pale 7

On dunes 29, 1968, this .Court noted probable juris.

diction - - | — .

aaa .

Question Presented for Review

Where a : silie officer, after ree: called before a pare

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 hearing at

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

is thereafter dismissed from his position pursuant to Ar-

ticle 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

when, if the police \pfficer had festified before the grand

jury, the testimony could not be used against him in subse-

quent criminal proceedings?

ee a

i

Facts’. |

A. Charge pen Appellant ~

23) : |

‘‘The District “Attorney of New Yotk County has

advised the Police: Conimissioner 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 waive- ‘immunity from prosecution as pro-

vided in. Section 1123 of the New York City Charter .

and Article I, Section 6 of the seaseamamaas of - State

tof New York.

.“fYou are, therefore, ani to appear before a

Trial Comindealakes in the Board Room on the second

“78 , , _

i ?

~

The charge against the’ sprees was, as follows (B. 22.

ee

i ae

‘

a ; 3.

floor of Police Hendagautens, 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

member of the Police Department should not be termi;

nated and your office vacated as- or by the

aforesaid provisions of law.’

f

f

B. Departmental Hearing

The charges against the appellant were tried before

_ Leonard E. Reisman, beg Officer, on August 10, 1965. -

The appellant was pres nt and was represented by counsel

(R. 23). ¢ e “ e

At the hearing the Police Department baihesiih'’ in evi-

dence a letter from Assistant District Attorney Andreoli

of the New York County District Attorney’s Office, advis- -

ing the Poliee-Commissioner that appellant had refused

to sign a limited waiver of immunity (R. 24] 26). A copy

. of the notice of the charge wds offered in evidence and

- was objected to by the appellant, 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 in evidence the

letter from the District Attorney’s Office and the notice

of the charge (R. 24, a) ln

_ Assistant District poremnans Andreoli’ a ‘Testimony °

‘Assistant District Attorney 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 (R. 27). He further testified that the appel-

lant was advised that the Grand Jury ‘‘wished to question

him concerning the conduct of his office in the performance

ofthis duties’’ and, at appellant’s request, there was an

adjournment to enable him to discuss the ‘limited waiver

with his attorney (R. 28). . R

td

*

_ On August 6, 1965, appellant. yeappeared and was again

advised of his rights and the nature of thé investigation.-

The investigation sought 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 (R. 28).

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

4 . Mity because ‘‘his attorney told-him he -~was a target of

i an investigation’’ (R. 20:2%, 28, 29). —

}

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 (R. 29-30, 12-22; Brief

p. 22). v1 |

On cross-examination, Andreoli testified that appellant

appeared before the Grand Jury pursuant to a subpoena

and that he was-a potential defendant of the investigation .

(B. 30): . He further testified.that, had the appellant signed

the limited waiver of immunity, he would have béen ques-.

tioned at that time (R. 31). a

“ The Court order releasing the Grand J ury minutes was

then: admitted” in evidence (R. 32). ,

2

Appellant’s Grand Jury Testimony

.

pe RR Re Dani Tanah a aha eed nde Sah,

Bat Sd

‘

= &

alas

. The grand jury minutes of thé Second August 1965 9

Grand Jury, which had ‘previously been admitted in evi-

dence (R. 29-30), 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 un. -

4. derstood and had been aware of since June of 1964 (R. 13). °

‘. After his constitutional right to refuse to testify and the -

provisions of the Constitution of the State of New York

and the New York City Charter ‘with regard to refusal to

* testify concerning the conduct of his public office had been -

- explained, appellant stated that he was represented by _

&

‘dsr

;

5

counsel, who was not present. He requested an adjourn-

_ ment in order to show the limited waiver of immunity to .

his attorney. This request was granted (R. 14-18).

On August 6, 1965, appellant was recalled as a witness,

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

of the Grand Jury investigation (R. 19-20). He stated

that We had discussed his constitutional rights and his

duty testify. with his attorney and stated, ‘On the ad-

vice of my attorney I have been regarded as a target of .

_ this investigation, and you have no authority to question

me.”’ He was then advised that heihad been called before

the Grand Jury as a public officér to testify concerning

the performance of his duties as a police officer (R. 20-21).

‘ Appellant refused to sign the waiver of immunity (R.

21-22).

Motion ‘to Dicmies

Decision was reserved on the appellant’s motion to dis- |

miss the charge on grounds that he had been subpoenaed

and was a target of the investigation (R. 32-33).

; Appellant’s ‘Case

Appellant did not offer any evidence on his behalf or

‘offer any explanation of his refusal to sign the waifer of

immunity and testify before the Grand Jury (R. 33).

Cc. Commissioner’s Detenninetion. eae

-In the report of Hearing Officer Reisman, dated August

11, 1965, he found that appellant had been called before the

Grand Jury-and had refuged to sign a waiver’ of immunity

ired by Section 1123 ofthe New York City Charter. ©

He recommended that appellant’s employment be ‘termi-

nated and his office vacated (R. 33).

Based on these findings and recommendations, Police

Commissioner Broderick ordered appellant ’s office vacated _

' (RH) ee as

$¢

6

| Opinions Below |

The Appellate Division, First Department, of “the.

Supreme Court of the State of New York, confirmed with-

out opinion the Police Commissioner’s determination (R..

37-39, 27 A. D. 2d 800, 279.N.Y.S. 2d 150 [1967]).

The New york Court of Appeals, in its opinion by Chief

Judge Fuld, unanimously affirmed the order of the Appel-

late Division (R. 41-47). It pointed out that the appellant

was required by Section 1123 of the New York City

Charter, as a condition of his continued employment by ~

_ the Police Department, to waive his constitutional privi-

lege against self-incrimination and to answer questions re-"

lating to the conduct of his office and performance of his |

__ Official duties. The ,Coyrt distinguished Garrity -v. New

Jersey, 385 U. S. 493 (1967), stating that nothing decided .

in that case bore on the issue before the Court and that any

. testimony of. misconduct in office would be inadmissible in

a criminal prosecution. It said that Spevack v. Klem, 385

U. S. 511 (1967), was also distinguishable in that Spevack

involved the responsibilities of a licensed attorney rather.

than those of a State employee. Chief Judge Fuld con-.

cluded (R. 43-44) :

**In- “point of fact, the petitionér did not aon,

_ the waiver and stood on his constitutional privilege

against self-incrimination when notified that he

‘ was to be questioned about malfeasance as a police

officer. Such information patently bore upon his fit-

ness to remain in office, information which the public

had a right to know and the petitioner avas under a

duty to reveal. His refusal to speak on the subject

- constituted ‘employee. insubordination for failure to

give information which * * * the State has a legitimate ~-

interest in securing’ (Nelson v. Los Angeles County, —

362 U: S. 1, 7, supra: see Spevack v. Klein, 385 U. S.

511, 519, supra [per Fortas, J., concurring]), and, con-

fs sequently, he was properly dismissed from the police

force. sia

-

r 4 .

Constitutional Provision and Statute Involved

Section 6 of Article I of the New York Constitution _pro-

vides, as herein ‘pertinent, as follows:

$6. (Grand Jury; protection of certain enumerated

rights; waiver of immunity by public officers ; due process. )

#** * * No person shall be subject to-be twice ‘put in -

jeopardy for the same offense; nor shall he be com- |

pelled in any criminal case’ to. be a witness against

himself, providing, that any public officer who, upon

being called before a-grand jury to testify concerning”

the conduct of his office or the performance of his

official duties, refuses to sign a waiver of immunity

agpinst subsequent ¢riminal prosecution; or to answer

arly relevant question concerning such matters before

. such grand jury, shall by virtue of such refusal, be

- disqualified from holding any other public office or

public employment for a period of five years, and

shall be removed from office by the appropriate au-

thority or. shall forfeit his office at the suit of the

attorney-general.’’ a :

- The New York City Chartes, Section 1123, provides a as

follows:

“$1123. Failure to testify. —If any: “sellilientt or

employee of the city shall, after lawful notice or

process, wilfully refuse or fail te appear before any

court or judge, any legislative committee, or any

officer, board or body authorized to conduct any hear-

ing or inquiry, or having appeared shall refuse to

testify or to answer any questior regarding the prop-

erty, government or affairs of the city or of any

county included within its territorial limits, or regard-

ing the nomination, election, appointment or official

conduct of any officer or employee, of the. city, or of

any such county,.on the ground that his answer would —

tend to incrimjnate him, or wars refuse to waive im- .

munity from prosecution on account of any such mat-

ter in ‘relation to which he may be asked to testify’

upon any such hearing or inquiry, his term or tenure

of office ‘or employment shall be vacant, and he shall

_. not be eligible to election or appointment to any office

or employment under the city or any —_- on

| Summary of the Argument

In the cases of Beilan v. Board of Education, 357 U. S. .

399 (1958), Lerner v. Casey, 357 U. S. 468 (1958), and

“Nelson v. County of Los Angeles, 362 U..S. 1 (1960), this

Court sustained the dismissals. of public employees, after

_ appropriate. administrative hearings, based upon the em-

ployees’ failure to .explain their refusal to answer ques-

tions relating to their, employment in. an investigation of

matters of legitimate concern to the state’ or agency in-

volved or their refusal to take a loyalty oath. The appel-

lant,-a police officer, refused to execute a waiver of im-

munity: and testify before a Grand Jury which was

_ investigating a conspiracy. to bribe police officers to permit

legal gambling. At his administrative hearing, appellant -

offered no explanation to justify his failure to disclose all

known information concerning this conspiracy to bribe

public officers. _Such action constituted employee in-

subordination and properly required his dismissal.

The due proeess requirement relied on in Slochower v.

Board of Education, 350 U. 8. 551 (1956), ‘has been fully

complied with. The more recent cases of Garrity v. New

Fersey; 385 U. S. 493 (1967), and Spevack v. Klein, 385

U.S. 511 (1967), are distinguishable. - _ a

. Where a ‘police commissioner ‘obtains or is given some

evidence, or apparently responsible charges are made, of

-wrongdoing on the part of a police officer, it would be sub-

stantially destructive of effective and honest operation of

the government ofa city if the police officer could, without

' fear of discipline, refuse to answer relevant questions.

9

* The Fifth Amendment does not bar such questioning by a

superior officer since the answers cannot be used in any

criminal proceeding brought against a police officer who

answers the questions. Nor should it be held:to require that,

- When suck an officer refuses to answer ‘such questions, he

must be “continued in-his public office despite such in-

subordination. If this contention is sound,.it would seem

that: it should’ also be applicable to_ refusals to answer

similar relevant inquiries by a grand jury concerning the

conduct of his. office or the performance of his official

duties. .

. | .

ARGUMENT

The provisions of Article I, Section 6, of the New

York State Constitution and Section .1123. of the New

York City Charter are constitutional. Those sections re-

-quire:a public employee to be discharged if. he refuses

to sign a waiver of immunity or to answer questions

before’ a grand jury concerning the conduct of his

office and the performance of his official duties. Any

such testimony would be inadmissible in a criminal

prosecution of the employee. The State Constitution

and the City Charter sections have been construed to

limit the required waiver to one restricted to conduct

of his office and his official duties and to permit dis- .

charge of the employee only after he has had a hear-

ing at which he has an Opportunity to explain his

‘refusal.

(1)

Pertinent to a. consideration of the constitutionality of ©

Article I, § 6,7 of the New York Constitution and New

-York City Charter y 1123 is a brief review of the back-

1 Similar | statutory provisions are cnuteinnd in: District of

Columbia, D. C. Code § 1-319 (Supp. 1958); Louisiana, La. Const.

Art. 14, § 15 (P),(1), La. Rev. Stat. Ann. § 38 :2128 (1950) ; Mary-

- land, Md. Ann. Code, Art. 69 $11 (1953); New Jersey, N.'J.

Stat. Ann. § 2A 81- “17.1 (Supp. $964).

10

sround and history of the Charter provision’s predecessor

§ 903. That seetion was prepared by the Charter. Revision

Commission created by the State Legislature (L. 1934, ch.

867), and it was submitted to the people at the 1936 general

election. It was.adopted and became effective on January

1, 1938.

The enactment of a new charter was the outgrowth of an

imvestigation into alleged graft and corruption in the gov-

‘ernment of New York City in the course of which numerous’

City employees had refused, to testify as to official acts on

the ground that their testimony might incriminate them.

This spectacle of public employees and officers exercising

their Fifth Amendment privilege brought about a realiza-

_ tion on the part of the Joint Législative Committee and the

general public that public officers and employees should not

be permitted to remain on taxpayer-supported payrolls if

they invoke their privilege against self-incrimination con-

cerning their official conduct and duties before duly em-

powered investigating agencies.” The drafters of the City

Charter, in the light of these recommendations, prepared

‘Chapter 40, including $903, which.regulates the rights and

corresponding obligations of the City employees.

A similar constitutional provision, Article I, $6, of the

New York Constitution, confined in its application to pub-

lic officers, was also approved by the people on November

8, 1938. This amendment also provided for the grant to

the grand juries of the express power to inquire into

‘the wilful misconduct in office of public officers, which .

- power was never to be suspended or impaired by law. A

_-New York City: police officer is a public officer. -Canteline

v. McClellan, 282 N. Y. 166, 170, 25 N. E. 24.972 (1940); ©

Matter of Ryan v. City of New York, 228 N. Y. 16, 19, 126

N. E. 350 (1920). :

2In the Matter of the Investigation of the Departments of the

Government of the City of New York, Final Report by Samuel

Seabury, December 27, 1932, PP. 9-10.

ll

, ee FEC

The appellant argues that -to dismiss him for refusing

to waive immunity and testify before a grand jury con-

stitutes a violation of his rights under the Fifth Amend-

ment, even though any testimony would be inadmissible

against him in a criminal proceeding. He relies primarily

on tlie cases of Slochower v. Board of Education, 350 U.S.

551 (1956); Garrity v.. New Jersey, 385 U. S. 493 (1967),

and Spevack v. Klein, 385 U. S. 511 (1967).

Slochower involved the summary dismissal of a teacher

at a public college pursuant to § 903 of the New York City |

Charter (predecessor. to the present. ® 1123), because he

-had refused, before « Senate Subcommittee on’ Internal

Security, to answer questions concerning his membership

‘in the Communist Party. The opinion 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. This Court also

recognized that the problem of balancing the municipal

employer’s interest in the loyalty of those in its service

with -the traditional safeguards of individual rights was a

‘‘continuing one’’. ~ 350. U. S. at p. 555. The opinion went

on’ to say that-Section 903, as interpreted. and applied,

operated to discharge every employee who inivoked the

Fifth Amendment and that the questions asked were being

taken as confessed without consideration being given to

such factors as the subject matter of the questions or jus-

tification for the exercise of the a 350 U. - at p.

558.

The opinion then said (pp. 558-559) :

' «*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 -occur-

ring before a federal committee whose inquiry was an-

nounced as not directed at ‘the property, affairs or

2

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

employees.’ ate

a The State has broad powers in the ileal and

discharge of its employees, and it may be that proper

inquiry would show Slochower’s continued employment

to be inconsistent with the reat interest of the State.

But there has been no such inquiry here. We hold that

the summary dismissal of appellant violates due pre

ess of law.’’

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, that is, a Congressional —

committee investigating loyalty, not“the official conduct of

city employees. The other emphasized the automatic dis-

charge for exercising the Fifth Amendment privilege be-

_\ fore an agency other than the employer—the absence of

an opportunity for the employee to explain his exercise of — -

the privilege or for the employer, before acting, to con- °

sider the circumstances of the refusal to answer.

Subsequent, to Slochower this Court held that state stat-

utes authorizing the dismissal of public employees who

fail to answer questions relating to employment in an in.

vestigation of matters of legitimate concern to the state

or agency involved dd not violate due process where a

hearing is held- prior to such a dismissal. Beilan v. Board

of Education, 357 U. S. 399 (1958); Lerner v. Casey, 357 ©

U. S. 468° (1958); Nelson v. County of Los Angeles, 362

U. S: 1 (1960). In each of these cases, appellants were

‘dismissed, pursuant to a relevant statute; after a hearing

before an appropriate administrative body at which time

_ they were given the opportunity to explain their refusals

to testify or to take loyalty oaths. The ultimate dismissal

in each instance was based, not on the mere refusal to

testify or sign a loyalty oath, but on the breach of a legit-

imate condition of employment that the refusal reflected.

ee.

In the Lerner and Beilan cases, it would appear that Mr.

Justice Douglas, with whom Mr. Justice Black concurred,

‘based their dissent covering both cases on the propriety

of the government concerning itself with the opinions and

_ beliefs of its employees. 357 U.S. at p. 415. The dissant, *

-however, did recognize the right of the government to in-_

_ quire into the ‘‘actions of men,’’ such as the fitness of the

public employee for his job depending ‘on health, prompt-

ness, and record for. reliability. 357 U.S. at p. 415.

’ Dissenting in a.separate opinion, in the Lerner case, Mr.

Justice Brennan stated (357 U. Ss. at p. 422):

‘‘But can we suppose that a subway egnductor weokd

‘be. branded a security risk if he refus to answer a

question about his health? Of course’the answer is no, —

_ although the question is plainly relevant to his qualifi-

cations of employment. it. may—well*be that in, such’

a ease the State would be fully justified in discharging

the employee as. ‘untrustworthy, and unreliable. 9.99

Various state courts have upheld cunibine dismissals of

‘police. officers for refusal to testify before -a Grand Jury

or to Sign waivers of, immunity.°

New York_City Charter, ‘Section 903, involved in the ©

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

the City’s new charter, are. identical. -Both, if read liter-

ally, require an automatic dismissal ‘of an employee for re-

fusal to: testify at specified hearings or inquiries. Never-

theless, after the Slochower decision, the New York courts

treated the section and Article I, § 6, of the New York Con-

-3See C hristal - Police Commission, 33 Cal. ern, 2d 564, 92

. 2d. 416 (19393 : Drury v. Hurley, 339 IIL. App. 33, 88 N. E.

2 728 (1949), cert: denied, 339° U..S. 983 (1950); Fallon v.

New. Orleans Police Department, 238 La. 531, 115 So. 2d 844

(1959) ; McAuliffe v. New Redford, 155 Mass: 216, 29 N. E. 517

Ng Roche v. Police Commissioner, 33 Cal. App. 2d 574, 92

2d 422 (1939); Soudler v. Philadelphia, 305 Pa. 1, 156 A

245 (1931). Cf. Scholl v. Bell, 125 Ky. 750, 102 S. W. 248

(1907). a. |

— a NAPs a er ee

KE. hts Seba

14, 1 \

- stitution as requiring a hearing before dismissal. Matter

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

(1965). The rule was applied‘in two cases decided under

the title of Matter of Gardner v. Murphy, 46 Misc. 2d 728,

260 N.Y.S. 2d 739 (1965). As a result the appellant herein

was givén a hearing and thereafter dismissed. The com- |

panion case was reversed because of its peculiar eircum-

stances. Matter of Koutnik v. Murphy, 25 A. D. 2d 1197,

968 N.Y.S. 2d 265 (1966), app. to New York Court of Ap-

peals pending. In the present action Chief Judge Fuld

added the further element to the interpretation of the pro-

' visions, that-‘‘his testimony would be inadmissible in a

criminal prosecution’’ (20 N Y 2d at p. 230, 229 N. E. 2d .

at p. 186).

In Garrity v. New Jersey, 385 U. S. 493 (1967), it was

held that answers given by police officers 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 because the police officers were faced —

by 2 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-con-

fined itself to holding that answers given under threat-of

its applicatién are coerced and, therefore, cannot be used’

in a criminal prosecution of the police officers. -

In the companion case of Spevack v. Klein, 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 lawyer relinquish the Fifth. Amendment

privilege. - “i :

ey

PT EP gE hoe

15

Mr. Justice Dovezas, who spoke for ‘the majority in

both the Garrity and Speuack cases, wrote the following

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

¢3. Whether a policeman, who invoked the privi-

lege when his conduct as a policg officer is questioned in ,

“disejplinary proceedings, may be discharged for re-

fusing | to o testify i is a question we did not reach.’’

Mr. Justice Formas, i in his | concurring opinion in that case,

said (385 U.S. at p. 519): . ; “

“But I would distinguish between a lawyer’s right

to remain silent and that of a public employee who is

asked questions specifically, directly, and narrowly re-

lating to the performanee of his official duties as dis-

tinguished from his beliefs or other matters that are’

not within the scope of the specific duties which 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 he discharged for

refusal in djsciplinary proceedings to testify as to his °

conduct as a police officer.’’

The quoted reservations apparently apply to an auto-

matic discharge of a policé officer for refusing to testify..

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.

The Garrity case, in any event, would appear to remove, .

any basis for a refusal by a police officer to, answer ques-

tions coneerning his official duties when questioned either

_ by. the Police. ‘Commissioner or before a grand jury. even

though Garrity had not been decided at the time petitioner

appeared before the grand’jury or at the time of his dis-

3 ciplinary hearing. That case establishes that his answers

may not be ‘used against him in a criminal proceeding.

+

fm

e

etipialtiies att diane sais i ous Cite es

APD ait ine S80 API ores!

Oneiputy this ruling would also extend to any evidence

ered as a result of his answers.

‘Tn view of the undvailability of the answers for use in’ ,

' any criminal proceeding, the Fifth Amendment skould not

be extended to bar questioning of police officerg to obtain

information concerning crime or to determine whether they

have been guilty of. misconduct in performing their official

duties. It is true that the immunity obtained as a result

of giving answers when so questioned is not given with the

formality of a specific grant of immunity and that the

scope of the immunity is not so broad as that given under

such a grant. The immunity, however, would appear to be -

broad enough to satisfy Fifth, Amendment requirements

since it extends to the answers and the fruits of the an-

swers. In Murphy v. Waterfront Commission of New

York, 378 U. S. 52, 79 (1964), this Court held that a similar

immunity with regard to federal prosecution, limited ‘to

compelled testimony and its fruits, satisfied the require-

ments of the Fifth Amendment. — ‘

ny

ae (4)

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

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

automatically revoked a federal pension as of the date that .

the pensioner refused to testify before a grand jury, fed-

eral ‘court or congressional committee was invalid. The

Court relied on the Slochower case. |

Appellant also relies on United States v. Lovett, 328

U.S. 303 (1946). In Garner v. Board of Public Works of

Los Angeles, 341 U.S. 716 (1951), this Court distinguished ©

a statute, analogous to the sections here involved, from”

the Congressional Act found-unconstitutional i in ag Lovett

‘case, stating (p. 723): ; .

_« **Unlike the provisions of. the [Los Angeles] Ganler

and ordinance under which petitioners were removed .

the sigtute in:the Lovett case did not declare general

. ‘

4

.

JS

47

and prospective operative standards of qualification

and eligibility for public employment. Rather, by its

terms it prohibited any further payment of compen- - -

sation to named individual employees. Under these

eircumstarices, viewed against the legislative back-

“ground, the statute was held to have leiienane penalties

he without judicial trial. =

It is evident from an examination of Article I, §6, of

- the New York Constitution and §1123 of the New York

City Charter tft the sections were not directed at any

individuals specified by name as in the Lovett case.

, . (5)

A police commissioner has a ‘ight to question members

-of his force with regard to ‘the performance of their

official duties to determine their fitness for office or

- with regard to information’ they have obtained ‘concern-

_ing crimes. If a- police officer may not be removed be-

cause he refuses to answer questions about his official

duties, asserting his privilege under the Fifth Amendment

even though his answers cannot be used against him in a’

criminal proceeding, it would mean that ‘such a refusal

to answer questions put to him by the’ Police Commis-

sioner also could not furnish a basis for his removal.

‘The Police Commissioner, having appointed the appellant —

to his position-of public trust and civic responsibility,

_ could not inquire into the performance of his official duties

after the Commissigner obtains information iridicating im-

proprieties on,his part or after accusations are madé

concerning his s integrity.

interrogate members of his force would defrive su- '

periors and official bodies of a power essential to the

maintenance of a viable government, municipal, state or

federal. It would mean that police’ officers, men who are

appointed to enforce the laws and who are, in a position

Such a lj tion on a police commissioner igre to.

18

to gain ready access to homes and business establishments,

may refuse to answer accusations or even evidence that

they have been faithless in performing their duties. And

it would mean that they may continue to act as police

officers until and unless evidence can be obtained clearly

showing that they have violated their duty.

A few examples of situations which have arisen or are

' likely to arise illustrate how difficult, if not impossible, it

Would be to operate a city effectively and honestly if police

officers or other employees could refuse, with impunity, to.

answer questions concerning suspicious circumstances in

which they are involved: A citizen reports that he has

seen a specific policeman enter various bars and grills,

speak in a whisper to the owner and receive money from

the owner. A paper is found in a police officer’s lost mem-

_ orandum book on which there is a list of various businesses

in his precinct and amounts alongside the names of these

businesses, strongly indicatmg that Christmas gifts were

being improperly solicited by him. An Assistant Corpora- .

tien Counsel fails to call to the witness stand someone who, ~~

it appears, would have been a key witness for the City in

the defense of the action. Shortly after a building in-

‘spector examines a building in a slum area and reports

that there are no building violations, his superior inspects

the building and discovers several, readily observable, life-

_ endangering violations. Innumerable analogous examples

-could be cited.

In these examples the evidence available to the Com-

missioner, standing alone, is not ordinarily sufficient to

justify the dismissal of the police officer or other employ-

ees who, under New York law, may not be dismissed with-

out a hearing on charges supported by substantial evi-

dence. Under these circumstances it seems eminently

proper for the Commissioner to question the public em-

ployee concerning the matter. A refusal to answer per-

tinent_questions constitutes insubordination and lack of

candor. It%s_this insubordination and lack of candor that

-

, 4

ee

justify dismissal. Beilan vy. Board of Education, 357 U.S.

399 (1958); Lerner vy. Casey, 357 U. S. 468 (1958); Nelson .

v. County of Los Angeles, 362 U. S; 1 (1960). , .-

If such a refusal to answer a question by the Police

Commissioner can furnish a basis for his removal, there

would appear to be no sound reason for holding that the

refusal to answer questions put to a police officer concern- ©

ing the performance of his official duties or his knowledge

of crimes learned in the performance of such duties by

any other body authorized to eXamine into such matters,

improper conduct or malfeasance or crimes, does not fur- ” s

nish a basis for removal, | e : goes

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 so that: he

could: be questioned without obtaining immunity. The ;

waiver was limited to matters ‘‘concerning the conduct of

my office on the performance of my Official duties’’.

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

appropriate authorities with information pertinent to his

employment and his ‘knowledge concerning crimes. This

is especially significant where the conduct in question re-

lates to the administration of justice and his part in main-

_ taining or failing to muintain the integrity of the Police

. Department. His refusal to sign a limited waiver of im-

munity in this investigation so that he could he questioned

without obtaining immunity concerning the bribery of

police officers and his failure, at, his hearing, to give rea- »

sons for his refusal are inconsistent. with his duty as a

police officer.. Having breached his duty, appellant ‘was .

properly dismissed. é :

Particularly apt is the following statement in Scholl v.:

Bell, 125 Ky. 750, 102 S. W. 248, 261-262 (1907) :

. ‘Here were police officers being interrogated as to

. existence of crimes ‘they were paid to prevent, if

-

‘possible: if not, ‘to expose - punish afterwards; and:

yet they one and all, refused to answer ‘under advioe

_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: longer than it would require ©

* to — him?””

©) :

handties: also’ argues that he was illegally ataaaia

before the Grand Jury and attempts to make this an equal

protection of the law issue (App. Brief, pp. 11-13). > This

argument was not made in the New York courts. Nor was

it mentioned in the Jurisdictional Statement.

’ In the New York courts the appellant merely ardent

that a target of an inquiry may not be brought before a |

grand jury by subpoena. No mention of equal protection

was advanced in relation to this argument. Appellant

merely relied on New York eases which did not discuss amy

equal protection issue.

_ While in his ' Jurisdictional Statement, although not in

the- “’Question Presented, > appellant did argue equal pro-

tection, that argument was limited to the issue .of bur-

den of proof. of miscdnduct.. Appellant contended: that

ther public employees may be removed only where the

department bringing the charges sustains the burden. of

proof of ‘misconduct, while those in the position of the

appellant are, in effect, required to sustain the burden of

proof that they were not guilty of misconduct. Such an _

equal protection issue obviously is different from -appel-

- lant’s present argument that equal protection is denied by

| — a public officer to appear before a — jury .

wae | : :

. pursuant to sukpoena even though he is a target: of the

investigation while others who are: targets of, an imvesti- |

gation -may not-be subpoenaed. .

. Moreover, with regard ta.equal protection, it is reason--

able and proper to draw a distinction between public em-

Ployees and other persons who are targets. .They have a

special responsibility to the community which justifies such ©

inquiry. - a ae ie

There are additional reasons barring the presentation of

the equal protection argument to this Court. The petition

_in the New York Supreme Court instituting this proceed-

ing alleges in general terms that there has been a denial

of equal protection of the laws (Par. ‘‘Sixth’’, R; 4). The

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

late Division or to the Court of Appeals. Furthermore,

_ there is not the slightest indication that the New York

courts ever considered the issue: It would ‘appear, there-

fore, that it cannot be raised on this appeal. Hiawassee

_ Power Co. v. Carolina-Tenn. Co., 252. U. S. 341, 343-344

(1920) ; McGoldrick v. Compagnie enerale, 309 U. S. 430,

433-434 (1940); Wilson v. Cook, ®27 U. S. 474, 483-484 —

(1946). Moreover, the reference in .the petition to equal -

protection of the laws does not specifically refer to the _

United States Constitution and makes it clear that appel-*

lant is not relying on 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 case where the police officer has testified before a grand

jury ‘and that such testimony is being used-as the basis

‘for a dismissal. That is not what occurred in the present

case. At the least, the argument assumes that the New

York Court of Appeals 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. ; | Po. :

All that the New York Court of Appeals held, however,

is that a police officer who has refused to furnish“informa-.

tion to a grand jury regarding the conduct of his office and

the performance’ of his official duties may be discharged

‘unless, at his disciplinary hearing, he offers an appropri-

ate explanation for such refusal. This holding applies to

all police officers. Even if it varies from the rule appli- ‘

cable 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 interpreted since the

eer decision.

é

CONCLUSION

The appeal to this Court from the jadgnient of the |

: New York Court of apnea should be affirmed.

April 11, 1968.

tained dial

J. Lez Rana,”

. Corporation Counsel,

i | | Attorney for Appellees,

Municipal Building,

New York, N. Y. 10007.

Norman Rebiicu, —

Stantey Bucussaum,

Rosert T. Hartmann,

of Counsel.

. B . f

| - APPENDIX

Waiver of Immunity ‘(Department's Exhibit 4).

y%

vv

a

. THe People oF THE STATE OF New York

| against

Joun Dor, Er At.

. =

I, . _ _, residing at

occupying the office of |

in the , gras of the City of New York,

do hereby waive all benefits, privileges, rights and immunity

which I would otherwise obtain from indictment prosecution

and punishment for or on account of; regarding or relating

to any matter, transaction or things, concerning the con-

duct of my office on the performance of my official duties,

or the property, government or affairs of the State of New

York or of any county included within its territorial limits,

or the nomination, election, appointment or official conduct

of any officer of the city or of.any such county, concerning

any of which matters, transactions or things I may testify

or produce evidence documentary or otherwise, before the

; on, _ Grand Jury in the County

of New York, in the investigation being conducted by said |

Grand Jury: — J

Dated: New York, N. Y.

_ Witness:

State or New York ]

County or New York § =

Onthis ~ day of 4 196 , before me per-

. sonally appeared +, to me personally

known and known to me to be the individual described in

and who executed the above waiver, and he duly acknowl-.

edged to me that he executed the same.