Uniformed SM Ass'n, Inc. v. Commissioner of S. of NY

• Decision Date: 03 April 1970
• Docket Number: No. 506,Docket 34338.,506
• Citation: 426 F.2d 619
• Parties: UNIFORMED SANITATION MEN ASSOCIATION, INC., et al., Plaintiffs-Appellees, v. COMMISSIONER OF SANITATION OF the CITY OF NEW YORK et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

426 F.2d 619 (1970)

UNIFORMED SANITATION MEN ASSOCIATION, INC., et al., Plaintiffs-Appellees, v. COMMISSIONER OF SANITATION OF the CITY OF NEW YORK et al., Defendants-Appellants.

No. 506, Docket 34338.

United States Court of Appeals, Second Circuit.

Argued February 9, 1970.

Decided April 3, 1970.

Leonard B. Boudin, New York City (Rabinowitz, Boudin & Standard, New York City and Dorian Bowman, New York City, of counsel), for plaintiffs-appellees.

John J. Loflin, Asst. Corporation Counsel (J. Lee Rankin, Corporation Counsel of City of New York, Stanley Buchsbaum and Yvette Harmon, Assts. Corporation Counsel, of counsel), for defendants-appellants.

Before LUMBARD, Chief Judge, and FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

This case returns to us after reversal of a previous decision, 383 F.2d 364 (1967), by the Supreme Court, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), further disciplinary proceedings by the City of New York, and motions in the district court. The pertinent earlier history can be succinctly stated. City regulations required private cartmen of waste materials to purchase tickets for the privilege of using City waste disposal facilities. The individual plaintiffs were charged with failing to collect such tickets at the City's Marine Transfer Station; instead, they allegedly received cash, which they diverted to their own use, thereby defrauding the City of hundreds of thousands of dollars. An investigation of these activities was conducted in part by observation of detectives on September 10 to 15, 1966, and in part by a wiretap of City telephones pursuant to a court order made on September 19, 1966, under § 813-a of the New York Code of Criminal Procedure.

After the remand from the Supreme Court, the individual plaintiffs were reinstated by the Department of Sanitation on August 21, 1968. On the same day they were called to appear at an inquiry before Mathias L. Spiegel, Deputy Administrator of the Environmental Protection Administration, which includes the Department of Sanitation. All were represented by counsel. Before interrogating Lombardo, the first of the employees to be called, the Deputy Administrator said:

I want to advise you, Mr. Lombardo, that you have all the rights and privileges guaranteed by the Laws of the State of New York and the Constitution of this State and of the United States, including the right to be represented by counsel at this inquiry, the right to remain silent, although you may be subject to disciplinary action by the Department of Sanitation for the failure to answer material and relevant questions relating to the performance of your duties as an employee of the City of New York.

I further advise you that the answers you may give to the questions propounded to you at this proceeding, or any information or evidence which is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to criminal prosecution for any false answer that you may give under any applicable law, including Section 1121 of the New York City Charter.

Lombardo gave affirmative answers to questions whether he was employed by the City as a sanitation-man and had been continuously employed at the Marine Transfer Station from October 9, 1955, until December 3, 1966. He was then asked whether during that period he had ever observed "private cartmen enter that station without the required official record being made." He declined to answer on the ground of his privilege against self-incrimination and the furthe ground that the inquiry was "based upon wire tapping in violation of his constitutional rights." Questions whether he ever saw private cartmen dump waste materials without submitting their official ticketbooks, whether he had ever received money for permitting them to dump waste materials at the Station, whether he turned any such money over to anyone on behalf of the Department of Sanitation, and the like, as well as questions relating specifically to events of September 13, 1966, met with the same response. It was stipulated that each of the employees who had been called (except one who had left the hearing because of illness) would follow the same course. They were thereupon suspended.

On August 30 the Commissioner of Sanitation served the plaintiffs with notice pursuant to N.Y. Civil Service Law, McKinney's Consol.Laws. c. 7, § 75, charging them with misconduct in refusing to answer the questions and notifying them of a hearing before a duly authorized Hearing Officer. George S. Leisure, Jr., a practicing attorney, was designated as such. Evidence was taken and plaintiffs were given another opportunity to answer the questions propounded on August 21 under the same assurances that had been given then; they declined to do so on the grounds previously asserted. The Hearing Officer recommended that the employees be dismissed. To no one's surprise the Commissioner of Sanitation followed the recommendation.

The parties then returned to the district court where plaintiffs moved for summary judgment directing their reinstatement and, if that was denied, for discovery concerning the source of defendants' information. Defendants cross-moved for summary judgment. Judge Tyler granted plaintiffs' and denied defendants' summary judgment motion, thereby mooting plaintiffs' discovery motion. Conceding for the purpose of argument that it would suffice if plaintiffs had been clothed with "use immunity" as distinguished from "transactional immunity" — of which more hereafter — with respect to any answers they might have given in response to the questions, he thought that, under § 619-c and -d of the New York Code of Criminal Procedure, the City lacked authority to grant immunity even of the former type.

I.

Analysis must begin with the celebrated case of Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). Counselman, a grain shipper, was being interrogated by a federal grand jury investigating alleged criminal violations of the anti-discrimination provisions of the Interstate Commerce Act. He declined, on the basis of self-incrimination, to answer questions whether he had shipped at rates less than the published tariffs and whether he had received any rebates. After being directed by the court to answer, and having persisted in his refusal, he was adjudicated in contempt, fined $500, and held in custody until he answered the questions. Rev. Stat. § 860 provided in pertinent part that no discovery or "evidence obtained from a party or witness by means of a judicial proceeding * * * shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture."

After rejecting the Government's contention that the Fifth Amendment privilege was inapplicable to a witness before a grand jury, the Court also overruled the claim that § 860 gave protection adequate to warrant the compulsion of incriminating evidence. While the statute forbade use of the compelled testimony itself in any court of the United States, "it could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted." The protection of Rev.Stat. § 860 was therefore "not co-extensive with the constitutional provision." 142 U.S. at 564-565, 12 S.Ct. at 199.

It would seem that this should — or at least could — have ended the case. However, Mr. Justice Blatchford went on to note that in some states "it has been attempted by legislation to remove the constitutional provision, by declaring that there shall be no future criminal prosecution against the witness, * * *" 142 U.S. at 565, 12 S.Ct. at 199. He then announced that "a review of the subject in adjudged cases will be useful" and devoted twenty pages, 142 U.S. 565-585, 12 S.Ct. 195, to it. This included two federal decisions — a ruling of Chief Justice Marshall in United States v. Burr, 25 F.Cas. 38, 40 (No. 14,692e) (1807), and Boyd v. United States, 116 U.S. 616, 631, 633, 6 S.Ct. 524, 29 L.Ed. 746 (1886) — which had only slight relevance to the issue, and 14 state decisions. Some of the state courts had found statutes like Rev.Stat. § 860 to be sufficient to warrant punishment for refusal to answer, some had found them insufficient, and two had upheld provisions that entirely relieved the witness from prosecution. The Justice then stated, 142 U.S. at 585-586, 12 S.Ct. at 206:

We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him, can have the effect of supplanting the privilege conferred by the constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.

After all this the opinion closed on the more subdued theme earlier enunciated:

Section 860, moreover, affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.

Faced with two criticisms of Rev.Stat. § 860, one narrow and the other broad, Congress decided to play it safe....