Brown v. City of North Kansas City

779 S.W.2d 596, 1989 Mo. App. LEXIS 1106, 1989 WL 85108
CourtMissouri Court of Appeals
DecidedAugust 1, 1989
DocketNo. WD 41386
StatusPublished
Cited by5 cases

This text of 779 S.W.2d 596 (Brown v. City of North Kansas City) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. City of North Kansas City, 779 S.W.2d 596, 1989 Mo. App. LEXIS 1106, 1989 WL 85108 (Mo. Ct. App. 1989).

Opinion

NUGENT, Chief Judge.

Plaintiff, Sgt. Lynn Brown, appeals from the trial court’s decision affirming his dismissal from the North Kansas City Police Department (NKCPD). He argues on appeal that no substantial evidence supports the conclusion that he failed to cooperate [597]*597with his employer in an internal investigation; that his dismissal for refusing to answer particular questions violated his constitutional privilege against self-incrimination; and that the questions did not relate to his official duties. We affirm.

The NKCPD fired Sgt. Brown for refusing to cooperate in an internal investigation. The inquiry concerned allegations of his involvement in a kidnapping in Springfield, Missouri. Sgt. Brown had joined forces with a former North Kansas City police officer to investigate the kidnapping victim's involvement in an extortion scheme. The victim told police that the two officers abducted him at gunpoint, beat him with a flashlight, and left him on a country road.

In the course of its criminal investigation, the Springfield police department contacted the North Kansas City police chief about the incident, and the NKCPD provided Springfield authorities with a photograph of Sgt. Brown. When the chief told the plaintiff about the allegations, Sgt. Brown referred to it as “no big deal.” At that time, the chief placed the sergeant on the first of four seven-day suspensions with pay. When the chief sought to question Sgt. Brown further about the incident, the sergeant asserted his Fifth Amendment rights.

Although the chief had assured the sergeant that nothing he told the department in the course of its official investigation could be used in a criminal prosecution, the sergeant, on the advice of counsel, persisted in declining to answer. Plaintiffs counsel told the chief that she could not assure her client that any information he gave the department would not be subject to subpoena. The chief disagreed. Departmental regulations provide that refusal to cooperate in an investigation of city matters constitutes grounds for discipline. Following Sgt. Brown’s continued refusal to answer questions concerning the incident, the city council fired him. That decision survived review by the city’s personnel board and by the circuit court.

Sgt. Brown argues in his first point on appeal that proof that he asserted of his Fifth Amendment rights in response to the chief’s questions did not amount to sufficient evidence to support the court’s finding that he refused to cooperate in the investigation. In his second point, he contends that his dismissal under those circumstances violated his constitutional privilege against self-incrimination. Because those points require an understanding of the same body of constitutional law, we shall consider them together.

The controlling law on this issue arises from the United States Supreme Court decision in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In that case, police officers faced the choice of testifying before a grand jury investigating charges of corruption or losing their jobs under a statute that provided for removal of any public employee who refused to testify about matters concerning his employment. The officers testified and the state later used their testimony in the course of their criminal prosecution. The Court found that the threat of being fired for their silence provided adequate coercion to render the officers’ testimony involuntary. Thus, the state’s admission of the testimony violated the officers’ rights under the Fourteenth Amendment (incorporating the rights available under the Fifth Amendment). Id. at 497-98, 87 S.Ct. at 618-19.

In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the police department fired an officer who refused to sign a waiver of immunity before testifying. The New York courts attempted to distinguish Garrity, observing that Gardner had refused to testify. Therefore, unlike the officers in Garrity, he provided no compelled testimony that the state could use against him in a criminal prosecution. The Court rejected that argument, citing Garrity for the proposition that the state may not require a public employee to choose between his job and his constitutional right against self-incrimination. Id. 392 U.S. at 278, 88 S.Ct. at 1916.

The Court did not, however, create an absolute right to refuse to cooperate with an internal investigation. Public au[598]*598thorities may require a public employee to respond to questions concerning the performance of his official duties; but they may require such a response only if they do not also require the employee to waive his constitutional protection against self-incrimination. Id,.; see also Uniformed Sanitation Men Association, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 285, 88 S.Ct. 1917, 1920, 20 L.Ed.2d 1089 (1968) (although the city could require public employees to account for their performance of their public trust, it could not do so by requiring the employees to waive their constitutional rights). Similarly, in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), the Court held that the state may compel the employee to testify only if it provides the employee with immunity sufficient to supplant the privilege against self-incrimination. Use immunity, which entails the suppression of any statements or their fruits in a criminal prosecution, adequately replaces the constitutional privilege. Id. at 85, 94 S.Ct. at 326.

Sgt. Brown argues, however, that he did not receive adequate assurances of immunity to justify the conclusion that he improperly relied on his Fifth Amendment rights. The language of Lefkowitz v. Turley might suggest that the public entity may obtain potentially incriminating information from a public employee who asserts his constitutional privilege only if the state affirmatively grants that employee immunity. In light of the Missouri Supreme Court’s decision in State ex rel. Munn v. McKelvey, 733 S.W.2d 765 (Mo.1987) (en banc), a question arises whether public employers may obtain such information in Missouri.

The conflict in McKelvey arose when a grand jury witness continued to assert his privilege against self-incrimination, even after the prosecutor had secured promises from city and federal prosecutors that no one would prosecute the witness for matters arising from his testimony. Upon his refusal to testify, the trial court cited him for contempt.

The Supreme Court reviewed Missouri’s well-known historical disdain for immunity, citing cases in which the courts had upheld convictions from prosecutions that state officials had promised would never occur. It rejected the argument that the power to grant immunity inheres in the office of the prosecutor. The decision to provide immunity entails consideration of important public policies. Because the legislature has repeatedly refused to provide prosecutors with statutory authority to confer immunity, it has settled the public policy question.

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Bluebook (online)
779 S.W.2d 596, 1989 Mo. App. LEXIS 1106, 1989 WL 85108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-city-of-north-kansas-city-moctapp-1989.