Silverio v. Municipal Court of City of Boston

• Decision Date: 10 April 1969
• Citation: 247 N.E.2d 379,355 Mass. 623
• Parties: . Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 379

247 N.E.2d 379

355 Mass. 623

Salvato J. SILVERIO v. MUNICIPAL COURT OF the CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1969.

Decided April 10, 1969.

David Berman, Medford (John F. Zamparelli, Medford, with him), for petitioner.

Howard M. Miller, Asst. Atty. Gen., for respondent. Mark E. Gallagher, Jr., City Solicitor (Robert J. Blumsack, Asst. City Solicitor, with him), for intervener.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.

WHITTEMORE, Justice.

The petitioner on March 30, 1965, was discharged as a police officer in the city of Medford by the city manager who was the 'appointing authority' (G.L. c. 31, § 43(a)). On appeal to the Civil Service Commission (c. 31, § 43 (b)), a hearing officer made findings. The Commission, on June 2, 1965, adopted the findings and affirmed the discharge. On petition under c. 31, § 45, the Municipal Court of the City of Boston reviewed the action of the city manager and the Commission to determine 'whether * * * upon all the evidence such action was justified,' and on November 7, 1967, entered an order upholding the decision.

This petition for writ of certiorari brings before us the issue whether there was error of law apparent on the record including whether the evidence was sufficient in law. Sullivan v. Municipal Court of the Roxbury Dist.,322 Mass. 566, 573--574, 78 N.E.2d 618.

The city manager had discharged Silverio for his refusal to answer questions asked of him by his superior, Captain John B. O'Leary. A letter from Captain O'Leary to Silverio had requested Silverio to report to the captain's office on March 17, 1965, at 2 P.M. Silverio came with his attorney. The questions and some of the colloquy are set out in the margin. ¹

In a statement of agreed facts the parties stipulated that the evidence presented to the Commission's hearing officer was sufficient to warrant the findings of fact made by him.

The hearing officer found, inter alia, that the questions involved Silverio's 'knowledge of certain persons who it can reasonably be inferred were in some way involved in an auto theft ring involving them and three other Medford policemen who were under indictment.' The hearing officer, in effect, ruled that answering the questions would not have been violative of a duty to maintain the secrecy of grand jury proceedings, particularly where the information sought by the superior officer was only as to his conduct before the grand jury. He concluded, 'I am cognizant of the fact that * * * (Silverio) was not * * * indicted * * *, but his insubordination and refusal to cooperate with his superior officer in his investigation, has resulted in his usefulness in such a sensitive area as police work non-existent.'

1. Silverio was under a duty by virtue of his office to answer the questions. This is plain apart from the rules of the Medford Police Department that were in evidence and with which he was familiar. ² 'Important among the many duties of police officers * * * are the prevention and detection of crime and the apprehension of criminals.' Huntoon v. City of Quincy, 349 Mass. 9, 14, 206 N.E.2d 63, 67.

2. Failure to answer, unless required by an overriding duty, or constitutionally protected, was ground for discharge for the reasons stated by the hearing officer.

3. Answering the questions would have violated no duty of Silverior to maintain the secrecy of grand jury proceedings.

The only obligation as to secrecy directly imposed by statute is on the grand jurors. G.L. c. 277, §§ 5, 12 and 13. But even that does not prevent a grand juror from testifying that a certain person had not been a witness before a grand jury. Commonwealth v. Hill, 11 Cush. 137, 140. We do not overlook that in that case the testimony was given at a time when the need for secrecy had ended, but we agree with the respondent that the holding is not placed on that ground. In the Hill case, the court said that grand jurors may not 'state, how any member * * * voted or the opinion expressed by their fellows or themselves upon any question before them, nor to disclose the fact that an indictment for a felony has been found against any person, not in custody or under recognizance, nor to state in detail the evidence on which the indictment is founded. * * * (W)e know of no authority which carries the rule of exclusion further, and we can see no ground of policy or sound reason for its extension. * * * It seems to us, therefore, that a member of a grand jury may testify to any fact, otherwise competent, which does not violate the restrictions above stated.'

We assume that persons other than grand jurors making disclosure of facts within the restrictions stated in the Hill case, could, in some circumstances be held in contempt for interfering with the grand jury as a constituent part of the court. See Commonwealth v. McNary, 246 Mass. 46, 50--51, 140 N.E. 255, 29 A.L.R. 483. But in Commonwealth v. Geagan, 339 Mass. 487, 497--498, 159 N.E.2d 870, we held that disclosure by State and Federal officials of what witnesses had testified to or would testify before the grand jury was not violative of the secrecy of the grand jury room and not ground for abatement.

Silverio's refusals to answer were not justified because of the possibility that he would be in contempt for breaking the secrecy of the grand jury. None of the questions asked for disclosure of any of the secrets of the grand jury room. Silverio's brief misstates the purport of the questions. He was not asked to invade the 'secrecy as to his testimony' and the cases from other jurisdictions holding that he may not do so are beside the point. We note New Hampshire Fire Ins. Co. v. Healey, 151 Mass. 537, 538, 24 N.E. 913, holding that the district attorney might testify as to a witness's testimony before the grand jury because the need for secrecy had at that time passed. The negative implication of that case does not bear on police department inquiry as to whether an officer had been before the grand jury, had testified and had refused to testify because of his Fifth Amendment privilege. There was no implication of intention to ask what Silverio's testimony had been.

We assume that the questions that asked Silverio as to his acquaintance and association with three named persons, and their criminal records, may have been questions about facts to which he had testified or refused to testify before the grand jury. But that circumstance did not put a lock on Silverio's mind and tongue to bar his disclosure of the same facts to anyone else. Silverio's recital of those facts as facts known to him would in no sense have been a disclosure of grand jury proceeding. Commonwealth v. Doherty, 353 Mass. 197, 210--211, 229 N.E.2d 267. (That a witness had testified before the grand jury would not justify his declining to talk with defence counsel.)

4. Silverio's refusal to answer may not be justified on the ground that his answers might have tended to incriminate him. We assume that this justification may now be asserted even though it was not expressed when the questions were put. Commonwealth v. Prince, 313 Mass. 223, 229--231, 46 N.E.2d 755, 152 A.L.R. 571, affd. 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 1090. ³

The Supreme Court of the United States in Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 20 L.Ed.2d 1082, held that it was improper to discharge a police officer for refusal to waive immunity following his being told that he would be discharged if he did not do so. The court also held, however, that if the policeman 'had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution * * * the privilege against self-incrimination would not have been a bar to his dismissal.'

In Uniformed Sanitation Men Assn. Inc. v. Commissioner of Sanitation of City of New York, 392 U.S. 280, 284--285, 88 S.Ct. 1920, 20 L.Ed.2d 1082, fifteen employees had been told that if they refused to testify on the ground of self-incrimination they would be discharged. Twelve had asserted the privilege and had been discharged. Three had answered the questions, denied the charges against them and had been suspended. Later they had refused to sign waivers of immunity before the grand jury and had been discharged on that ground. In reversing the decision below sustaining the discharges the court noted that New York 'was seeking, not merely an accounting of their use or abuse of their public trust, but testimony from their own lips which * * * could be used to prosecute them criminally.' The court noted, however (p. 285, 88 S.Ct. p. 1920), the 'petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.' Compare Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562.

Thus an employee knows that if he fails to divulge information pertinent to the issue of his use or abuse of his public trust he may lose his job. The fact of employment poses the continuing choice of whether to divulge such information. The Constitution of the United States, however, as we understand its construction, does not require that a public employer continue to employ in a position of public trust an employee who declines or renders himself unable to perform the duties of his position on the ground of the constitutional protection against self-incrimination. No threat or pressure of his superior coerces his choice. His choice is his own, even though it may be affected by his expectation that his superiors will perform their own public duties in the light of their...