Local 502-M, National Union of Police Officers v. Wayne County Sheriff

263 N.W.2d 7, 79 Mich. App. 445, 1977 Mich. App. LEXIS 788

• Court: Michigan Court of Appeals
• Decided: November 8, 1977
• Docket: Docket 30014
• Status: Published

Opinion

D. F. Walsh, P. J.

Plaintiffs sought an injunction to restrain the police trial board from conducting a hearing relating to the plaintiffs’ refusal to obey an order to answer a question at a previous trial board hearing. The trial court denied the injunction and plaintiffs appeal by leave granted.

The facts are stipulated. On April 6, 1976, a trial board was convened to investigate allegations that Officers Kelly and Jennings negligently permitted the escape of two prisoners from Wayne County jail. During that hearing Officer Jennings gave the following response to a question regarding the escape.

"Q. Officer Jennings, directing your attention to February 1, 1976, at about nine o’clock on that date, do you have that date in mind?

"A. Yes.

"Q. Did anything unusual occur on that date?

"A. I refuse to answer on the grounds said answer may tend to incriminate me and cause me to lose my appointment as a Deputy Sheriff in the Wayne County Sheriff’s Department, and may cause me to lose my position as a police officer in the Wayne County Sheriff’s Department.”

Officer Kelly gave an identical response to a similar inquiry. Both officers repeated that response when a superior officer ordered them to answer the question.

The issue before us is whether the constitutional privilege against self-incrimination prohibits the dismissal of a public employee who asserts that privilege in refusing to answer questions specifi cally, directly and narrowly related to the performance of his or her official duties.

Our resolution of the issue has its foundation in two decisions of the United States Supreme Court. The first is Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967), the second is Gardner v Broderick, 392 US 273; 88 S Ct 1913; 20 L Ed 2d 1082 (1968).

In Garrity the Court held that self-incriminatory statements procured under the threat of discharge could not be used in subsequent criminal proceedings against the declarants. In Gardner the Court reversed the dismissal of a policeman for exercising his Fifth Amendment privilege because the dismissal was based solely on the officer’s refusal to waive the immunity to which he would have been entitled under Garrity. However, the Court made the following statement:

"If appellant, a 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 of himself, Garrity v State of New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.” (Footnotes omitted.) (Emphasis added.) Gardner v Broderick, supra, at 278.

See also Uniformed Sanitation Men Association, Inc v Commissioner of Sanitation of the City of New York, 392 US 280; 88 S Ct 1917; 20 L Ed 2d 1089 (1968).

In light of the foregoing, therefore, we now hold that if a public employee refuses to answer questions specifically, directly, and narrowly relating to the performance of his or her official duties, without being required to waive the protection afforded by Garrity v New Jersey, supra, the privilege against self-incrimination does not bar his or her dismissal. Seattle Police Officers Guild v City of Seattle, 80 Wash 2d 307; 494 P2d 485 (1972), Silverio v Municipal Court of the City of Boston, 355 Mass 623; 247 NE2d 379 (1969), cert den 396 US 878; 90 S Ct 151; 24 L Ed 2d 135 (1969).

Our review of the record before us persuades us that the questions plaintiffs refused to answer related specifically, directly and narrowly to the performance of their official duties. The trial court did not abuse its discretion in refusing to issue an injunction.

Affirmed. No costs, a public question.