Weston v. U.S. Dept. of Housing and Urban Development

• Decision Date: 30 December 1983
• Docket Number: No. 83-859,83-859
• Citation: 724 F.2d 943
• Parties: 14 Fed. R. Evid. Serv. 1737 Ruby WESTON, Petitioner, v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 943

724 F.2d 943

14 Fed. R. Evid. Serv. 1737

Ruby WESTON, Petitioner, v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent.

Appeal No. 83-859.

United States Court of Appeals,

Federal Circuit.

Dec. 30, 1983.

Abraham I. Goldberg, New York City, argued, for petitioner. With him on the brief was John C. Morland, Washington, D.C.

Alexander Younger, Washington, D.C., argued, for respondent.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Sandra P. Spooner and Jane W. Vanneman, Washington, D.C., were on the brief for appellee.

William C. Cregar and Donald U. Grant, U.S. Dept. of Housing and Urban Development, Washington, D.C., of counsel.

Before BENNETT, MILLER and SMITH, Circuit Judges.

BENNETT, Circuit Judge.

This is an appeal of the final order of the Merit Systems Protection Board (MSPB), No. NY 07528210194 (January 7, 1983), sustaining the Department of Housing and Urban Development (HUD) in removing petitioner, Ruby Weston, from her position as an equal opportunity specialist. We affirm.

BACKGROUND

Ms. Weston was first employed with HUD as a realty specialist in its New York Area Office from 1974 to 1977 and was then transferred to its Newark Area Office to serve as an equal opportunity specialist. Subsequently, HUD received information from the State of New York tending to show that her son was the actual buyer of real property on Pilling Street in Brooklyn, New York, sold by HUD when she was serving as a realty specialist exercising certain responsibilities toward the property and, further, that she subsequently received and endorsed a check from an insurance company in settlement of a claim for fire damage to the property. Richard J. Scott of the Office of the Inspector General of HUD commenced a criminal investigation into this possible conflict of interest by interviewing Ms. Weston on January 23, 1979. He informed her of the pending investigation and her rights under the law, including the right to remain silent and to have the advice of an attorney. She declined to sign a statement setting forth the matters discussed.

Thereafter, efforts to continue the interview with or without her attorney were unsuccessful. On October 20, 1980, Ms. Weston confirmed in person her refusal to continue the interview, and the matter was submitted for review by the United States Attorney, who declined prosecution.

On February 25, 1981, Ms. Weston and her attorney, Michelle Patterson, attended a meeting with Mr. Scott and HUD Acting Regional Inspector General, Earl F. O'Hara. They were given a copy of the statement below to follow as it was read aloud by Mr. O'Hara:

Before we ask you any questions you must understand your rights and your responsibilities as an employee of the Department of HUD.

The purpose of this interview is to obtain your responses to questions concerning possible violations of the HUD Standards of Conduct (24 Code of Federal Regulations Part O, Subpart B, 0.735-202(a)(b)(c)(d)(f); 0.735-204(a)(1)(4)(5)(6)(7)(8)(d); 0.735-205(a)(8)(b)(1); 0.735-210(b)) with respect to the purchase of the HUD-owned property located at 1 Pilling Street, Brooklyn, New York, during 1976 and your outside employment as they relate to your official duties.

You are advised that the United States attorney has declined criminal prosecution of you in the above matter. This is purely an administrative inquiry. You have all the rights and privileges, including the right to remain silent and the right to be represented by legal counsel, guaranteed by the Constitution of the United States, although, since you have a duty as an employee of HUD to answer questions concerning your employment, your failure to answer relevant and material questions, as they relate to your official duties, may cause you to be subjected to disciplinary action, including possible removal by the Department of HUD.

Any information or evidence you furnish in response to questions propounded to you during this interview, or any information or evidence which is gained by reason of your answer, may not be used against you in criminal proceedings; however, it may be used against you administratively.

It is significant that Ms. Weston was thus informed that (1) criminal prosecution against her had been declined by the United States Attorney, (2) no information gained from the interview could be used against her in a criminal proceeding, and (3) her failure to cooperate could subject her as a HUD employee to disciplinary action, specifically including removal from employment.

Ms. Weston refused to sign a form containing the above statement as an acknowledgment that it had been read to her. She requested until March 2, 1981, to consider whether to proceed with the interview. On that date she informed Mr. O'Hara that, based on the advice of her counsel, she would not participate further.

The removal of Ms. Weston for refusing to cooperate in an agency investigation (and other charges related to her abuse of an alleged commission as a notary public, which are not at issue here) was proposed on September 16, 1981, in a letter signed by her supervisor, Earl Fisher. It stated:

In light of the seriousness of the possible offenses that were involved in the Pilling Street matter and your continued refusal to cooperate with the investigation thereof and in view of your conduct in the representations and usage of your alleged position as a notary public, I find your actions sufficient to warrant, in order to promote the efficiency of the service, your removal from employment by this Department.

The maintenance of unusually high standards of honesty, integrity, impartiality and conduct by Government employees is considered by the Department to be essential to assure proper performance of Government business and the maintenance of confidence by citizens in their Government. This is especially true in the case of an employee whose position requires public contact as yours does. The avoidance by Government employees of misconduct or conflicts of interest is indispensable to the maintenance of these standards. 24 C.F.R. 0.735-101. To enable the Government to continue this high standard, we require HUD employees to cooperate with HUD's Office of the Inspector General when they conduct an investigation. HUD Handbook--Office of Inspector General, 2000.3A, paragraph 3-2(a).

....

The Pilling Street facts and the circumstances involving the use of your notary stamp, as developed to date, raise grave implications as to your honesty, integrity and conduct as a Government employee. I cannot reach any conclusions, based on the Pilling Street facts, due to your refusal Ms. Weston was removed effective January 8, 1982, and appealed to the MSPB. The presiding official concluded that her attorney had misconstrued the statement read by Mr. O'Hara at the February 25, 1981, meeting as including a statement of Ms. Weston's Miranda rights and had failed to understand the operation of the rule in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), that the threat of removal from one's position renders any statement compelled thereby inadmissible in a criminal proceeding, so that once having thus in effect received immunity, an employee can legitimately be removed for refusing to answer questions. Accordingly, Ms. Weston was found to have failed to cooperate in a legitimate agency investigation. The presiding official found that a nexus existed between that failure and the efficiency of her agency. The charge of abusing her alleged commission as a New York State notary, however, was determined not to have been proven by a preponderance of the evidence. For this reason, and because it was concluded that Ms. Weston had declined to answer agency questions out of a good faith reliance on the advice (albeit incorrect) of her attorney, the penalty of removal was mitigated to a 15-day suspension.

to cooperate. However, I can and do conclude that the facts, as presently developed, have presented exceedingly serious circumstances which merited the most complete and thorough investigation possible. You should clearly understand that your refusal to cooperate does not relate to a possible minor violation of HUD's Standards of Conduct, but rather relates to the most serious violations contained therein. If true, these offenses could have resulted in a criminal prosecution. Such possibility has, of course, been removed by the action of the United States Attorney. (Emphasis in original.)

In the HUD appeal which followed, the MSPB affirmed the decision of the presiding official that Ms. Weston did not have a right to remain silent once she had received immunity by operation of the Garrity rule. Characterizing Ms. Weston's case as one that "involves serious allegations of conflict of interest and misuse of office," the MSPB determined that the normal range of penalties prescribed by HUD in a first instance of failing to cooperate with an investigation (a suspension of 5 to 30 days) was inadequate in this case. The board opinion stated:

[M]ore serious penalties are warranted for more serious first offenses. HUD Handbook 752.2 REV-1, Appendix 3. Honesty, impartiality, and integrity are considered crucial to maintaining public confidence and assuring proper performance of government business, particularly when an employee's position requires public contact as does appellant's. Appellant's alleged misconduct, if proven, raises grave questions concerning her impartiality and integrity. The obstruction of justice that might result from her failure to cooperate under the circumstances is extremely serious.

....

One final factor, the availability of viable alternative sanctions, is particularly significant. If an agency was unable to compel cooperation by a grant of use immunity it might never be able to accumulate sufficient evidence to prove or disprove the underlying charge. Management's ability to investigate conflict of interest allegations...