Labor & Employment Law

Public worker to answer work related inquiry

Public worker to answer work related inquiry
Delgado v Kerik, App. Div., 1st Dept., 294 A.D.2d 227

One of the issues in the Delgado case concerned the duty of a public officer or employee to answer questions directly related to the performance of his or her duties in the course of an administrative investigation or official interview.

In deciding this appeal, the Appellate Division, First Department, citing Tanico v Mc­Guire, 80 AD2d 297, said that "[A]s a public employee, [a] police officer is required by virtue of his [or her] office to answer questions narrowly relating to his [or her] duties and to account for his [or her] actions." [A police officer is a public officer. Although all public officers are public em­ployees, not all public employees are public officers,].

New York City Police Officer Wilfredo Delgado was terminated from his position as a New York City police officer after the Commissioner of Police determined that he had associated with persons known to the department to have engaged in criminal activities and provided false and misleading statements during official interviews.

Delgado challenged the Commissioner's action, claiming that he was denied representa­tion during the "official interview" conducted by the Department.

The Appellate Division dismissed Delgado's appeal, ruling that the Commissioner's determination was supported by substantial evidence. This evidence included transcripts of phone conversations between Delgado and two incarcerated individuals.

As to Delgado's claim that he was denied "meaningful representation" during an official interview, the court noted that Delgado, upon the advice of counsel, refused to provide answers to questions relating to his official duties in the course of his interview. Clearly, said the court, relying of his attorney's advice not to answer the questions asked of him in the course of his "official interview" did not excuse Delgado from his duty to respond.

Finding that dismissal was "not so disproportionate to the offenses that petitioner was found to have committed as to shock our sense of fairness," the court dismissed Delgado?s­appeal.

Full post as published by New York Public Personnel Law on June 02, 2008 (boomark / email).