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Answering questions during an ?investigatory interview?

Answering questions during an ?investigatory interview?
New York City Human Resources Administration v Ali, OATH Index #2380/09
Mahmoud Sami Ali, a staff analyst employed by the New York City Human Resources

Administration, had requested annual leave to attend to family matters outside of the country. After the request was denied, Ali failed to report to work nor did he call in to explain his absence. He returned to work after being absent for ten days.

Subsequently Ali submitted medical notes seeking to have the absences treated as sick leave.

In the course of an investigatory interview concerning his absence, Ali was told he had the right to refuse to answer any question if a truthful answer would tend to incriminate him. He refused to answer questions regarding his whereabouts during the absence, claiming that the questions were not directly related to his official duties.

OATH Administrative Law Judge Ingrid Addison found that Ali falsely claimed he was sick and traveled out of the country after his request for annual leave had been denied. Addison also found that Ali had submitted false medical notes to ?justify? his ten-day absence.

The ALJ rejected Ali?s claim that he did not have to answer the questions at the interview because they did not relate to his official duties.

Addison opined that as Ali had requested sick leave for the same dates that had been denied as annual leave, questions regarding his whereabouts, and what he did during his absence were directly related to his leave request, and therefore to his official duties. As Ali had not asserted the privilege against self-incrimination as the basis for refusing to answer the questions, the ALJ ruled that he could be disciplined for the refusal ?without running afoul of the Fifth Amendment.?

NYPPL Comment: Cloaking the refusal to answer questions in the course of an official investigation in the ?Fifth Amendment? frequently demonstrates some misunderstanding of the protections that are automatically vested in an individual in such a situation.

As the U.S. Supreme Court held in Lefkowitz v Turley, 414 US 70, when a public employee is compelled to answer questions or face removal if he or she refuses to do so, the responses are cloaked with immunity automatically, and neither the compelled statements nor their fruits may be used against the employee in a subsequent criminal prosecution.

Other decisions addressing the issue of requiring an individual to answer ?job-related? question include Garner v Broderick, 392 US 273 and People v Corrigan, 80 NY2d 326.

In Garner the U.S. Supreme Court held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his or her official duties and is not required to waive his or her immunity with respect to the use of such answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

In Corrigan the New York State Court of Appeals said that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is "automatically immunized from use in criminal proceedings." The Court said that the immunity that attaches to any statement that a public worker give under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution. In other words, being compelled to answer a question that might constitute ?self-incrimination? is immunized with respect to the answer being subsequently used as grounds for initiating criminal action or use in any criminal trial that might follow.

As to the employee's refusal to answer, an agency, in ascertaining the truth or falsity of any resulting disciplinary allegation, might take into consideration the failure of the employee to respond.

In Baxter v. Palmigiano, 425 U.S. 308, a case in which the "prevailing rule? is discussed, said that the Fifth Amendment ?does not forbid adverse inferences against parties to civil actions when they refuse to testify." An administrative disciplinary action is a ?civil action.?

In Martinez v Safir, App. Div., 251 A.D.2d 62, the Appellate Division considered an appeal involving such ?use immunity.?

John Martinez, a New York City probationary police officer, refused to answer question posed by a superior concerning his conduct while off-duty and outside his jurisdiction despite being given "use immunity" with respect his answers to the question.

Terminated from his position because of his refusal to answer the several questions posed to him during the investigatory hearing being conducted by his superiors, Martinez appealed. His appeal was dismissed by Appellate Division. The court said commented that probationary employees may be dismissed in good faith and for any lawful reason. Clearly, said the court, bad faith was not present here in view of the fact that Martinez refused to respond to questions after being given use immunity with respect to his answers.

The Appellate Division concluded that terminating Martinez was lawful in view of the Department's "accountability to the public for the integrity of the police department...." This accountability, said the court, justified its inquiry into any alleged inappropriate conduct of its police officers while off-duty and outside the jurisdiction, particularly where the alleged misconduct involves criminal acts."

Further, in the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

The Ali decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-2380.pdf

Full post as published by New York Public Personnel Law on August 17, 2009 (boomark / email).