Portnoy v. Pennick
| Decision Date | 17 October 1984 |
| Docket Number | Civ. A. No. 84-0573. |
| Parties | Edward B. PORTNOY, Plaintiff, v. Daniel W. PENNICK, Ralph O. Barnett, Mario Mele, John T. Hale, and Robert J. Israel, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
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Edward S. Finkelstein, Harrisburg, Pa., for plaintiff.
John G. Knorr, Daniel R. Schuckers, Deputy Attys. Gen., Harrisburg, Pa., for Pennick, Barnett, Mele, Israel.
Bruce H. Bikin, Asst. Counsel, Liquor Control Bd., Harrisburg, Pa., for John T. Hale only.
On April 24, 1984, Plaintiff initiated this action by filing a complaint. The Defendants, on May 25, 1984, filed a motion to dismiss. The motion has been fully briefed and is now ripe for our consideration.
The Plaintiff is a former investigator for the Pennsylvania Liquor Control Board ("LCB"). He was an Assistant Supervisor of Investigations in the LCB's Philadelphia District. On May 11, 1983, he was called to testify before the Pennsylvania Senate Law and Justice Committee, which was investigating possible misconduct by LCB employees. On advice of counsel, Plaintiff asserted his Fifth Amendment privilege against self-incrimination and declined to answer any questions relating to his official duties.
On May 26, 1983, Plaintiff was suspended from his duties by the LCB. He then fully cooperated with an internal LCB investigation concerning his conduct. That investigation disclosed no misconduct by the Plaintiff. Consequently, Plaintiff was later reinstated by the LCB.
In December of 1983, Plaintiff was notified that he was being transferred to the Allentown District, effective January 19, 1984. Then, in January, 1984, Plaintiff was transferred to the Punxsutawney District. Plaintiff alleges that these transfers were ordered in retaliation for Plaintiff's exercising his constitutionally-protected right against self-incrimination. Plaintiff, rather than accepting the transfers, resigned, effective February 24, 1984. He filed a complaint, with this court, in April of 1984, seeking compensatory and punitive damages, injunctive relief, costs, and attorney's fees. The Defendants' motion to dismiss was filed in May, 1984, and raised numerous grounds justifying dismissal of this action.
On a motion to dismiss, we must accept all of the allegations of a complaint as being true, and must construe the complaint liberally in the light most favorable to Plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980); Robb v. City of Philadelphia, No. 83-1578, slip op., at 7 (3d Cir. May 7, 1984); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977).
The threshhold issue to be addressed here is: did the Defendants violate the Plaintiff's constitutional rights by disciplining him for exercising his Fifth Amendment right against self-incrimination? Since we are considering a motion to dismiss, we will presume Plaintiff's assertions to be true and accurate. Therefore we will presume that Plaintiff can prove that the Defendants did indeed transfer him in retaliation for Plaintiff's asserting his Fifth Amendment rights. We will further presume that the transfer can be shown to be disciplinary in nature.
Initially, we recognize that the issue presented is neither novel nor unaddressed by the United States Supreme Court. The Supreme Court, on several occasions, has had opportunities to review, and rule on, cases with substantially the same facts and issues as are presented here. See Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Assoc., Inc. v. Comm'r of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
The parties apparently agree that these Supreme Court cases are relevant to the case at hand. The parties disagree, however, on the impact of the decisions on this case. Plaintiff believes that they show that he cannot be disciplined for the exercise of his Fifth Amendment rights, while Defendants argue that the cases allow an employee to be disciplined. We believe that Defendants are correct in this respect, but that the Supreme Court has established safeguards to protect individuals' exercise of their constitutional rights.
Under the analysis developed by the Supreme Court in the relevant decisions, an employee may properly be discharged or disciplined for refusal to answer pertinent questions concerning his official conduct. Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). However, such discharge is not allowed when the employee is forced to decide between his job and his right to refuse to answer questions which could subject him to legal sanctions. Garrity v. New Jersey, 385 U.S. 493, 495, 87 S.Ct. 616, 617, 17 L.Ed.2d 562 (1967). The state could not act as both employer and as prosecutor. National Acceptance Co. Of America v. Bathalter, 705 F.2d 924, 928 (7th Cir.1983). Instead, the state/employer must "immunize" the employee; i.e., not make the answers available for subsequent state criminal prosecution. Only then could the employer require the employee to disclose information, or subject the employee to disciplinary action for refusal to answer. Id. Therefore, Plaintiff here could only be disciplined or discharged by his employer, the LCB, if, prior to questioning, Plaintiff was assured that any answers given by him to the senate committee would be used solely in determining his status within the LCB, and that such responses would not be used against him in a criminal proceeding. Any alternative approach would have forced the Plaintiff to choose between his job and a right guaranteed him by the Constitution.
Additionally, we recognize that Plaintiff, as an enforcement officer, is entitled to no less protection under the Constitution, than other citizens. "Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights." Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). Therefore, even though the community, and commonwealth, may have an interest in maintaining an image of integrity and excellence in its enforcement organizations, such an image may not be maintained through the degradation of an individual's constitutional rights.
Here, Plaintiff was subpoenaed to testify before a government body investigating wrongdoing within the LCB. No evidence has been offered by Defendants that this investigating body, or the LCB, offered any guarantees to Plaintiff that his responses would not be used against him in any potential criminal proceedings against him. Indeed, the purpose of the investigation appears likely to have been to investigate the possibility of criminal charges against LCB employees. The transcript of the hearing indicates that, at that time, an investigation into allegations of wrongdoing by Plaintiff and others was already being conducted by the state Attorney General's office. Tr. of Law and Justice Committee Public Hearing of May 11, 1983, at 52. Any testimony offered at the hearing would most likely have been forwarded to the Attorney General. Senator Greenleaf even requested that the LCB forward any information obtained through the LCB's internal investigation to the Attorney General's office.1
These factors, combined with the fact that the hearing was conducted publicly, clearly indicate that any statements given by Plaintiff could have been used against him in a subsequent criminal proceeding. Absent any indication of assurances of immunity being offered, we believe that his exercise of his right to remain silent was proper and that any punishment for such exercise was prohibited. His claim that he was so disciplined cannot, therefore, be dismissed for failure to state a claim upon which relief can be granted.
The Defendants assert a qualified, or "good faith" immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). That case established that a Plaintiff, to overcome an assertion of immunity, must set forth more than "bare allegations of malice." Id., at 817, 102 S.Ct. at 2738. Additionally, the Supreme Court pointed out that the qualified immunity granted officials who perform discretionary functions can be avoided only if the officials act contrary to clearly established statutory or constitutional law of which a reasonable person would have known. Id., at 818, 102 S.Ct. at 2738.
The Plaintiff has responded to Defendants' arguments by, initially, pointing out that qualified immunity is an affirmative defense which must be raised by the Defendants and need not be overcome by allegations in the complaint. We agree and will consider the merits of Defendants' arguments in light of Plaintiff's opposition brief.
The Plaintiff argues that 1) the law is quite clear with respect to Plaintiff's right to exercise his Fifth Amendment right against self-incrimination when he reasonably believes that the testimony may be used against him in a subsequent criminal proceeding; and 2) the Defendants were informed by their counsel of the law prior to suspending Plaintiff. We must agree with Plaintiff that the law with respect to disciplining an employee has a long history, and is not a novel issue. Even though the law is constantly being refined and adjusted, the basic principle has remained intact: that an employer may not penalize a nonimmunized refusal to answer potentially incriminating questions.
With respect to the Defendants' knowledge of the law, we believe that the affidavit submitted by John Reiley (Exhibit "A" to Plaintiff's Brief in Opposition to Defe...
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...right to protect his job, and his right to remain silent in the face of criminal charges. He directs the court to Portnoy v. Pennick, 595 F.Supp. 1000 (M.D.Pa.1984), in which the court held that an employee may not be forced to choose between his job and a right guaranteed by the Constituti......
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