NCJ Number
65923
Journal
FBI Law Enforcement Bulletin Volume: 49 Issue: 3 Dated: (MARCH 1980) Pages: 26-31
Date Published
1980
Length
6 pages
Annotation
QUESTIONS CONCERNING THE CONSTITUTIONAL RIGHTS AND OBLIGATIONS OF PUBLIC EMPLOYEES CALLED UPON TO RESPOND TO CRIMINAL MISCONDUCT ALLEGATIONS ARE DEALT WITH IN THIS ARTICLE.
Abstract
THREE LEGAL PRINCIPLES ACCOMMODATE THE LEGITIMATE INTERESTS OF BOTH GOVERNMENT AND THE EMPLOYEE. THE FIRST, CONSISTENTLY HELD BY THE SUPREME COURT, HOLDS THAT A STATEMENT GIVEN BY A PUBLIC EMPLOYEE UNDER AN EXPRESS THREAT OF DISMISSAL FOR FAILURE TO ANSWER CANNOT CONSTITUTIONALLY BE USED AGAINST THE EMPLOYEE IN A SUBSEQUENT CRIMINAL PROCEEDING. THE NEXT PRINCIPLE, WHICH, LIKE THE FIRST, AROSE FROM AN INVESTIGATION OF CRIMINAL MISCONDUCT BY A POLICE OFFICER, STATES THAT PUBLIC EMPLOYEES MAY NOT BE FIRED SOLELY FOR ASSERTING THEIR CONSTITUTIONAL RIGHTS. THIS PRINCIPLE HAS BEEN FOLLOWED AND APPLIED BY NUMEROUS FEDERAL AND STATE COURTS TO INVESTIGATE STATUTES OR REGULATIONS FORFEITING GOVERNMENT EMPLOYMENT AS A PENALTY FOR FIFTH AMENDMENT PRIVILEGE OR FAILURE TO SIGN A 'WAIVER OF IMMUNITY' FORM. HOWEVER, THE COURT HAS NOTED THAT THIS DOES NOT MEAN THAT A PUBLIC OFFICER MAY NEVER BE REQUIRED TO ACCOUNT TO THE GOVERNMENT FOR THE PERFORMANCE OF OFFICIAL DUTIES. IN ADDITION, FEDERAL AND STATE COURTS HAVE ESTABLISHED THAT A PUBLIC EMPLOYEE DOES HAVE AN OBLIGATION TO ANSWER HIS EMPLOYER'S WORK-RELATED INQUIRIES. THEREFORE, IF EMPLOYEES ARE ASSURED THAT THEIR ANSWERS OR INFORMATION CANNOT BE USED AGAINST THEM IN A CRIMINAL PROCEEDING, AND THAT THEY MAY BE DISCIPLINED OR DISCHARGED FOR FAILURE TO RESPOND, THEN DISCIPLINARY ACTION IS JUSTIFIED FOR REFUSAL TO ANSWER SUCH QUESTIONS. FOOTNOTES ARE GIVEN. (AOP)