SANITATION MEN v. SANITATION COMM'R
Legal provision: Self-Incrimination
Argument of Leonard B. Boudin
Chief Justice Earl Warren: Number 823, Uniformed Sanitation Men Association Incorporated et al., petitioners, versus Commissioner of Sanitation of the City of New York et al.
Mr. Leonard B. Boudin: Mr.Chief Justice, may it please the Court.
We are here to review by certiorari a judgment of the Court of Appeals for the Second Circuit, affirming the dismissal of a complaint of the petitioners who sought review of the dismissal from employment by the Department of Sanitation in the City of New York.
The dismissal predicated exclusively upon Section 1123 of the New York City Charter.
The individual petitioners were garbage collectors, sanitation that as they had called in the brief who were employed at a city dump to which private cartmen brought garbage.
The Commissioner of Investigation with powers independent of the Commissioner of Sanitation under Sections 803 and 805 of the New York City Charter, believing that a crime was being committed namely that these garbage collectors were taking money from the cartmen instead of requiring the cartmen to pay fees to the city.
Secured a wiretap order under Section 813-a of the Code of Criminal Procedure which was before this Court in the Berger case, and wiretapped the telephone at the (Voice Overlap) --
Justice Byron R. White: Was it a wiretap because in Berger it was not a wiretap?
Mr. Leonard B. Boudin: It was a wiretap in this case -- and wiretapped the telephone at the office of the Commission of Sanitation at the dump.
He then subpoenaed or was then directed the individual petitioner.
There are 15 in number, to appear before him, the Commissioner of Investigation.
He put them under oath, had stenographic record made, advised them that they were charged with crimes, advised them that he had wiretapped the telephone and their conversations, advised them that they had a privilege against self-incrimination to refuse to answer questions and they also interpolate that he played the recordings of their conversations with other persons what purported to be recordings, but advised them that if they say that they're privileged against self-incrimination as a ground for refusing to answer the questions then in accordance with Section 1123 of the New York City Charter, which he cited to them and cited fairly to them, they would be automatically dismissed from employment.
Now, the past diverge, 12 of the individual petitioners, these employees asserted their constitutional privilege at a number of cases after getting the advice of various counsels.
As to those 12, they were immediately suspended by the Commissioner of Sanitation, their immediate employer, in a letter which said they were suspended pursuant to Section 1123 of the New York City Charter.
And since that provision which was involved in Gardner against Broderick was never read to this Court and since its language we think in view of our reliance on Slochower is critical.
Let me just read the critical lines from our point of view of Section 1123 of the New York City Charter.
It says that if any employee of the city shall refuse to testify or answer any question regarding the property, government or affairs of the city, or official conduct of such an employee, on the ground that, the only ground, on the ground that his answer would tend to incriminate him or shall refuse to waive immunity from prosecution on account of any such matter, his term or tenure of office or employment shall terminate and such office or employment shall be vacant and he shall not be eligible for electoral appointment to any office or employment under the city or any agency.
These 12 after getting this notice of their suspension and of charges were told that they could have a hearing, the purposes of which I will question in a few minutes, and they had a pro forma hearing which is the Court of Appeals indicated below was limited to one thing, did they take the Fifth Amendment before the Commissioner of Investigation?
And they went there upon, dismissed from employment, not on the ground of any substantive proof of any irregularities or violation but on the ground that 1123 of the Charter required their dismissal.
In fact, anticipated their dismissal by making the office forfeit the moment they had asserted their privilege.
Now, we take the three, the three who did not assert their privilege against self-crimination, but who answered the Commissioner of Investigation denying the existence of any irregularities or misconduct.
Those three were then suspended by the Commissioner of Sanitation for irregularities by which he meant criminal misconduct.
And they were then, through the apparatus of the Commissioner of Investigation who as Your Honors will see serious police functions here, then were called before the grand jury by the district attorney who would receive the information from the Commissioner of Investigation.
When they appeared before the grand jury, these three were not asked to testify and given immunity under 2447 of the Code of Criminal Procedure which was mentioned to Your Honors yesterday in the Gardner against Broderick case which would have given them immunity with respect to the transaction.
Instead, they were asked to waive immunity under Section 2446.
The provision discussed the Stevens against Marks which would of course have left a viable we think to prosecution for the transaction possibly for more on its face and under the decisions of the Appellate Division in New York would even have permitted their words to be used against them.
There are cases of that kind of the Appellate Division which are not cited said in our brief directly.
When they, not refusing to answer questions addressing myself to the point made by Justice Fortas and other members of the Court yesterday, when they refused to execute this waiver which was involved in Regan and involved in Stevens, they were then served with new charges by the Commissioner of Sanitation, their employer, charging them with having refused to waive immunity and they were then given a hearing.
And again the hearings with a pro forma were unlimited to the question of whether they had refused to waive.
When they insisted at the hearing before a Deputy Commissioner of Sanitation, that the Commissioner should proceed on the charges of irregularities the original charges, the Commissioner refused to do so and limited the issue to the one question, did they assert their constitutional privilege?
Did they refuse to waive immunity before the grand jury?
Justice Abe Fortas: Yes, excuse me Mr.Boudin
Mr. Leonard B. Boudin: Sure, Your Honor.
Justice Abe Fortas: This did not supersede or eliminate the earlier hearing based on their refusal to answer questions, did it?
Mr. Leonard B. Boudin: The earlier hearing, Your Honor is referring to the three or the 12.
The 12 people had asserted their privilege before the Commissioner of Investigation.
These three had answered the questions put by the Commissioner.
Justice Abe Fortas: I see.
Mr. Leonard B. Boudin: And it was because they refused to waive their immunity before the grand jury that these three were then dismissed from employment.
Justice Abe Fortas: Sorry, I think I've (Voice Overlap) --
Mr. Leonard B. Boudin: Dismissed as the Charter request them to be dismissed.
We don't question the fact that the Charter was correctly carried out although we think it was a violation of this Court's decision Slochower.
Now, I come before I come to the details of my argument, let me indicate Your Honors the three basic points of our argument which are -- each of which is an independent ground for the relief which we seek and I emphasized the independence of the points.
And as Your Honors will see I do not agree in my construction of the statute as I refer to the Charter with either the appellant or the appellee's discussion of it in Gardner against Broderick yesterday with all due deference.
Our first point is that a statute which forfeits or declares employment forfeit automatically, unconditionally and irrevocably upon the assertion of the privilege as a ground for refusing to answer questions, denies due process on the Slochower and violates the privilege under Malloy.
This is the Slochower point, our principal argument here.
Our second point is the point upon with so much of the discussion yesterday developed and it is that the refusal to answer, we would submit, even an employer's questions based upon the constitutional privilege cannot be used as a basis for dismissing a public employee.
This we will call the Spevack extension, the Griffin point, the general question of a penalty or making the assertion of the privilege coarsely.
And our third point is that in any event, the situation here of refusal to answer.
This being a refusal to answer in a criminal investigation cannot be used as a basis for dismissing a public employee even if an employer who ask questions of a disciplinary proceeding of a kind referred by Mr.Justice Fortas in his concurring opinion were to have the right to ask the questions.
And let me proceed, if I may Your Honors, with my first point which is one upon which rely on most because there is less dispute as to that and because this Court has spoken to the point in Slochower.
This Court held in Slochower that Section 903 of the Charter which is identical in language with the 1123, identical, violated due process.
That time we didn't have Malloy against Hogan because it had operated to discharge every city employee automatically who asserted his constitutional privilege.
And this Court relied upon the construction, the construction never changed by the New York Court of Appeals in the Daniman case.
Where the Court of Appeals of New York stated, the assertion of the privilege against self-incrimination is equivalent to a resignation.
And it's said there is nothing noble about such a statute.
Other statutes provide for the -- or interpolate forfeiture of an office or employment upon the happening of an event specified therein.
Mr.Justice Clark writing the opinion of the Court regarded the questions asked, I'm quoting, “as being confessed.”
Mr.Justice Harlan dissenting gave a different view to the statute, a view upon which we rely here for our argument as well as upon Mr.Justice Clark's.
Cause Mr.Justice Harlan pointed out that even incrimination would not result in a dismissal under 1123 or 903 as it had been was and I would add that even refusal to answer for any ground other than the fifth would not be a basis for dismissal under 1123.
Mr.Justice Harlan, I think you said correctly that it was the exercise of the privilege which is the basis for the discharge under 903 of the charter.
And Mr.Justice Clark in the Nelson case and Mr.Justice Harlan in Lerner against Casey reiterated the fact that this Charter was directed specifically at the assertion of the privilege not against the general refusal to answer.
Here we are with exactly the same language of the Charter and that was why I was so surprised to hear some counsel say yesterday that this was not an automatic dismissal from employment under the Charter.
As a mater of fact, the Court of Appeals in Gardner against Broderick, the latest word on the subject does not suggest any new construction, any change from the construction which then gave to the Charter in Daniman and the Appellate Division for the first department in Koepnick case cited our replied brief on page 3 said, “it will be observed that as the event itself which terminates the employment rather than any adjudication or finding of the same as far as it is possible to do so,” said the Appellate Division Mr.Justice Stewart.
The statute provides for a procedure which is self-executing.
Justice William J. Brennan: Mr.Boudin --
Mr. Leonard B. Boudin: Yes, Your Honor.
Justice William J. Brennan: But in fact apparently the city does have some administrative procedures whether -- what (Voice Overlap) --
Mr. Leonard B. Boudin: We'll come to that.
The city has simply pulled this administrative procedure out of the hat as a façade, if I may suggest most respectfully, as a facade to meet what the Court of -- what this Court said in Slochower, when it said that it will be different if there were a hearing to go into the qualifications for employment of the employee.
This Court was not discussing of the possibility of a hearing under 1123 which permits of no hearing.
This Court was talking about a (Voice Overlap) --
Justice William J. Brennan: You say permit some --
Mr. Leonard B. Boudin: No, it does not permit it.
The 1123 requires the dismissal from employment.
In fact that declares the office vacant.
And this is a position which is respected by the city itself in the case which we cited in our replied brief.
Where the city -- in connection with the question of a hearing -- I'm talking about a police officer said, “A hearing presumably before the police commissioner following petitioner's appearance before the grand jury would have been a useless formality, this in 1967 Your Honor.
There can be no dispute as to the essential facts that make the statute operative that it referred to the assertion of the privilege.
And it said nothing could be brought out of the hearing even if one will require it to be held that could in any way all to the essential facts that brought Charter 1123 into operation.
The police commissioner has properly and lawfully terminated the petitioner's employment.
Now, the question is where is this hearing coming from?
Justice William J. Brennan: Let me see, is this to suggest that there is a hearing and the city in fact determines that this justification and in particular circumstances there ought not to be a dismissal?
I gather your point is that this would be violative of 1123, is that it?
Mr. Leonard B. Boudin: Yes.
My point would be that the kind of a hearing contemplated by Slochower was a hearing in which I think in inquiring would be made as to the suitability for employment of the employee.
The 1123 of the Charter has no -- it gives no leeway for such a hearing because 1123 of the Charter is mandatory as the corporation counselor said, in connection with the dismissal.
And the (Voice Overlap) --
Justice William J. Brennan: Let's see, your Court of Appeals has sustained not in this case but on the (Voice Overlap) --
Mr. Leonard B. Boudin: Daniman originally.
Justice William J. Brennan: Was there a hearing in the first case --
Mr. Leonard B. Boudin: No.
In Daniman -- in Daniman, there was no hearing.
Daniman Your Honor will recall was an involvement appearance originally before congressional committee.
The Court of Appeals did said -- did not indicate that any hearing was contemplated by the statute even there.
And in Gardner against Broderick, the case argued yesterday, there was no suggestion made in that case that a hearing procedure was now built into 1123.
Justice William J. Brennan: Oh, was there in fact a hearing in that case?
Mr. Leonard B. Boudin: There was hearing in Gardner?
When the hearing --
Justice William J. Brennan: You don't think that the action of the Court of Appeals maybe read as in the fact that they should be using your words that the statute has a built-in provision for --
Mr. Leonard B. Boudin: I do not think so Your Honor.
I think that otherwise the Court of Appeals would have made some change in its construction of the statute as calling immediately for the resignation.
I would like to add (Voice Overlap) --
Justice Potter Stewart: There was a hearing.
There was a hearing in this case, wasn't there?
Mr. Leonard B. Boudin: There was a hearing in this case in which the only issue was that as the Court of Appeals point out was the privilege taken.
It said that the transcript was presented at that hearing.
Justice Potter Stewart: That's right.
Mr. Leonard B. Boudin: The transcript of the hearing before the Commissioner of Investigation.
Justice Thurgood Marshall: Mr.Boudin.
Justice Byron R. White: And your client in that hearing further established for example that he didn't understand the Fifth Amendment or the reason he refused to testify was some other reason that the --
Mr. Leonard B. Boudin: The only case in which a hearing could have had any relevance would either show that he didn't take the privilege or that he didn't have counsel (Voice Overlap) --
Justice Potter Stewart: Or that his refusal was not based on the Charter.
Mr. Leonard B. Boudin: Exactly, but that of course would not mitigate -- yes.
Justice Thurgood Marshall: Do I read the statue correctly in this herein, the 12 have just said we won't answer the question, any questions period.
They wouldn't violate this, would they?
Mr. Leonard B. Boudin: That is correct.
If that a hearing (Voice Overlap) --
Justice Thurgood Marshall: If they would have to have a hearing as to whether they will fit to remain as sanitation workers.
If they hadn't claimed the privilege, you just said we won't answer.
They couldn't have discharge them on their lawns, could they?
Mr. Leonard B. Boudin: That is correct Your Honor.
A discharge under 1123 of the Charter would not be permitted if there was simply a refusal to answer questions.
It's only where the refusal is based upon the privilege that the dismissal occurs automatically.
Now, the questions that arise (Voice Overlap) --
Justice Potter Stewart: That there's a hearing in any event, isn't there?
Mr. Leonard B. Boudin: There is a hearing but the hearing has no meaning.
It is not the hearing that was intended by this Court in Slochower.
Let me consider with Your Honor the question of what would happen at a hearing or the possibilities.
A hearing at which one would attempt to justify the assertion of a privilege is obviously not the kind of a hearing that could be contemplated because it would violate the general principle protective of the privilege at the explanation I referred to cases like Huffman that the explanation of the privilege is in a sense its waiver.
You can't call a man to a hearing and say, “Tell us what you did and that you've justified your assertion of the privilege.”
Now, the other question is, could that be any possible hearing before that Commissioner of Sanitation at which you could say, “Yes I took the privilege but I don't want to be dismissed even though I took the privilege.”
The answer is no.
The corporation counsel agrees.
In other ways, you couldn't justify the privilege before the Commissioner of Sanitation by saying, “Well it dealt with the event 20 years ago.”
Well, it would have meant that I would have hurt somebody else out or -- and I really wasn't worried hurting myself, or the damage to me would have been so great (Voice Overlap) --
Justice Potter Stewart: Well, I should think if he did said that that it would have been pretty clear that he wasn't actually relying on the privilege (Voice Overlap) --
Mr. Leonard B. Boudin: Yes, of course in that particular incident.
My point is Your Honor (Voice Overlap) --
Justice Potter Stewart: So when he said that, that would have been -- then he wouldn't have come within the Charter provision.
Mr. Leonard B. Boudin: That's right, he would have avoided it.
But there is no possible situation in which a man can appear before the Sanitation Commission, admit he has taken the privilege and then say don't dismiss me because the Charter requires his dismissal.
When we talk about a hearing, unless we are really talking about a facade, it must be a hearing to a purpose.
Justice Potter Stewart: Or to establish the facts that bring him within this Charter provision, is that it?
Mr. Leonard B. Boudin: Exactly.
But that's still doesn't mitigate the effect of Slochower because on the Slochower the fact that you took the privilege and only the fact that you took the privilege is not a ground for a dismissal.
And the fact that a hearing is given to underlying the fact that you have taken the privilege can't possibly change the situation.
You are still being discharged for taking the privilege.
Justice John M. Harlan: Could I ask you a question Mr.Boudin.
I'm not sure I understood you.
Supposing a man under the statute is called before grand jury and he's asked the questions, and says, “No, I won't answer it.”
The district attorney says, why?
Well, he said, “I just won't answer it” and the district attorney says, “Do you claim the Fifth Amendment privilege?”
He says, “No, I don't because if I did I'd be fired, so I just plan to refuse to answer.”
You say the statute would be inoperative?
Mr. Leonard B. Boudin: Oh, yes, the statute would clearly be inoperative.
Justice John M. Harlan: Are there cases in New York to that effect?
Mr. Leonard B. Boudin: No, but it seems to me Your Honor that it's perfectly clear from the statute that it deals only with the assertion of the privilege.
The statute is not susceptible and (Voice Overlap) --
Justice John M. Harlan: It doesn't say anything about the Fifth Amendment it says he refuses to answer on the ground that the answer may tend to incriminate him.
Mr. Leonard B. Boudin: That's right, but it does not -- the statute does not permit the interpretation because no one has ever suggested that it does, that any ground for refusal to answer except the privilege call for the forfeiture of employment under that statute.
Justice John M. Harlan: But you haven't gone any cases?
Mr. Leonard B. Boudin: I -- there are no cases.
I doubt that anyone would claim that a refusal to answer on the ground that is not pertinent to the refusal to the answer --
Justice John M. Harlan: No, not pertinent to any, he just says I refuse to answer but I'm not going to bring myself within the end of the statute by claiming the Fifth Amendment privilege.
Mr. Leonard B. Boudin: I don't think Your Honor.
I can't cite any cases that this Charter is susceptible of that construction.
Justice John M. Harlan: I seem to agree for not having any cases on that.
Mr. Leonard B. Boudin: Yes there is.
I agree with you, Your Honor.
Now, our second point is the point that is most in controversy.
It is the question of whether or not when an employer asked questions -- the questions must be answered.
It raises the question of whether the implications of the majority opinion in Spevack were the implications that encouraged Mr.Justice Fortas on to be adopted by the Court.
We have said as much as we can in our brief on that point and well, I would like to address myself further to it.
I think that I must turn to the third aspect of my argument.
I doubt that I will reach the wiretapping point in which I point out Your Honors that this is not an inquiry by an employer.
This is an inquiry on the one case by the Commissioner of Investigation exercising police functions under 813-a.
Commissioner who has the power to subpoena and to evoke contempt proceedings, have testimony before him, made a basis of perjury prosecutions.
Very different from the kind of disciplinary proceeding that we think was within the contemplation of -- it should have been with the contemplation of the concurrence in Spevack against Klein.
And of course as far as the grand jury is concerned, there we have a criminal proceeding.
We don't have an inquiry by an employer.
If I may turn briefly to the last point of my argument and that relates to the question of why it's happening.
The investigation was instituted as a result of a wiretap.
It is our argument there that the investigation, the choice that was given to our clients to assert the privilege or not, to waive immunity or not, was the direct result of the wiretapping that was brought on and that we think it's a violation of the Constitution under both Berger and Katz -- for Berger and Katz jointly.
The argument is made by the -- by my friends here that the connection between the wiretapping and the hearing, the assertion of the privilege is tenuous.
We don't think it's tenuous, we think that so far as this record shows this hearing was instituted by wiretapping these hearings andwouldn't have occurred in the absence of wiretapping.
We think the wiretapping is a violation of the Federal Communications Act as well as the Constitution.
The argument with respect to retroactivity which is developed by my friends here, we've addressed ourselves to in our brief.
Justice John M. Harlan: Was there evidence obtained in the wiretapping?
Mr. Leonard B. Boudin: There was no evidence, this is a --
Justice John M. Harlan: (Inaudible) the purpose of this discussion.
Mr. Leonard B. Boudin: This is inactive fruits doctrine.
Justice John M. Harlan: (Inaudible)
Mr. Leonard B. Boudin: Precisely, Your Honor.
And may I reserve less few minutes of my rebuttal.
Justice Potter Stewart: And does it show -- is it shown on the record what triggered the wire attachment?
Mr. Leonard B. Boudin: We're told that a confidential informant triggered the wiretapping and I reminded the Court of what Chief Judge Learned Hand said when he pointed out in the case that I was involved in that the confidential informant was the wiretapper.
So that we don't really know --
Justice Potter Stewart: But the -- this was by court order and I wonder --
Mr. Leonard B. Boudin: This was by court order, an order apparently secured by the Commissioner of Investigation himself.
Justice Potter Stewart: That is the affidavit in which the court order was based --
Mr. Leonard B. Boudin: No, we asked counsel -- rather – we asked the Department of Sanitation, Department of Investigation, one of them to give us the court order, to give us the affidavit that was refused us it's indicated in the brief on the petition for certiorari.
Chief Justice Earl Warren: Professor Redlich.
Argument of Norman Redlich
Mr. Norman Redlich: Mr.Chief Justice and may it please the Court.
What is involved in this case is a situation where 15 employees of the City of New York were called before the City Commissioner of Investigation who is not a prosecutor in anywhere near the criminal sense or in any sense.
The Commissioner of Investigation is appointed by the Mayor of the City of New York.
He has no criminal jurisdiction whatsoever.
If he uncovers any case of criminal wrongdoing, he must turn that evidence over to the district attorney for proper criminal prosecution.
Fifteen employees were questioned by their employer because the Commissioner of Investigation is a Commissioner of the City of New York.
They were question concerning specific matters relating to the performance of their duty, an allegation coming from a citizen complaint that there was at the 91st pre-transfer station, a conspiracy which was costing the city hundreds of thousands of dollars.
Justice Potter Stewart: That -- you said the allegation there had this -- it originated with the citizen complaint, is that where -- is that shown in the record?
Mr. Norman Redlich: The difficulty here, Your Honor, is that the -- the hearings you see before the Commissioner of Sanitation are not part of this -- are not part of this record and it is not -- that point is relevant of course in terms of the -- in terms of the question of the wiretapping.
Justice Potter Stewart: Yes.
Mr. Norman Redlich: But the -- I didn't mean to imply that the citizen complaint was or was not the source of the wiretap, that would be going beyond the record but the fact is that someone complained to the city.
Justice Potter Stewart: And is -- is that bare fact shown in the record somewhere?
Mr. Norman Redlich: In Mr.Freidman's affidavit it is shown.
Justice Thurgood Marshall: Who got the wiretap?
Mr. Norman Redlich: The Commissioner of Investigation.
Justice Thurgood Marshall: Well, he would have the affidavit, wouldn't he?
Mr. Norman Redlich: It would be (Voice Overlap) -- it is not in the record but he would have it, yes.
The -- on the strength of this information, the Commissioner of Investigation called these people and asked them questions.
Now, in light of yesterday's discussion, I would like to point out that at least with regard to these 12, there was no question of any -- of asking them to waive immunity.
They were asked questions.
They declined to answer the questions.
Justice Byron R. White: On what ground?
Mr. Norman Redlich: On grounds of self-incrimination.
They were then suspended and formal hearings were filed against them (Voice Overlap) --
Justice William J. Brennan: Is it the fact Mr.Redlich that under the Charter provisions, once they had refused to answer on ground for self-incrimination, there was no alternative for the commissioner of what to suspend?
Mr. Norman Redlich: The -- as we have interpreted that 1123 in light of Slochower, and as we believe that interpretation has been sustained by the Court of Appeals in Gardner, we do not dismiss automatically.
We hold a hearing and we held one in this case.
A hearing was held in which the 12 employees or 15 employees were given an opportunity to explain why they have pleaded the privilege against self-incrimination?
And in the hearing before the 12, they were asked whether they wish to respond to the charges.
This was in the hearing before the Commissioner of Sanitation.
At that point --
Justice William J. Brennan: I'm getting a little confused.
The -- it was before the Commissioner of Investigation that they refused on grounds of self-incrimination to answer.
Mr. Norman Redlich: That's right.
Justice William J. Brennan: Now, is that -- was that the end of the hearing, as to the 12?
Mr. Norman Redlich: As to the 12, that was the end of the proceeding before the Commissioner of Investigation.
Justice William J. Brennan: Now, there was still another proceeding, wasn't there?
Mr. Norman Redlich: There was still another proceeding.
Justice William J. Brennan: And this is for the 12?
Mr. Norman Redlich: That's right.
Justice William J. Brennan: And this was before whom?
Mr. Norman Redlich: Before the Commissioner of Sanitation.
Justice William J. Brennan: And what was the nature of that proceeding?
Mr. Norman Redlich: The nature of that proceeding was that they were charged with a violation of 1123.
They were asked to explain their plea of the privilege and they were asked if they wish to respond to the charges.
Their position was that they stood by their initial position.
Justice William J. Brennan: Now, do I understand that it's your position that either in Gardner or some other case, the New York Court of Appeals has said that it's a requisite before there may be a dismissal?
Mr. Norman Redlich: The New York Court --
Justice William J. Brennan: That there'll be such proceedings?
Mr. Norman Redlich: The New York Court of Appeals has not affirmatively stated that a hearing is required under 1123.
This corporation counsel, this city, has taken the position that a dismissal not -- may not be permitted.
Either under 1123 or incidentally under that section which is before you yesterday in connection with the (Inaudible) case in an equivalent statute.
We have taken the position that a hearing must be held in which the employee is given an opportunity to explain his plea of the privilege and in the --
Justice William J. Brennan: Is that position sought necessary by reason of any decision of this Court?
Mr. Norman Redlich: Yes, Slochower.
It is our position that what Slochower precluded was an automatic inference of guilt resulting from a plea of the privilege and that these employees were entitled to due process, due process requiring a separate hearing in which they were given an opportunity to explain their conduct before the original investigating agency and in which in the case of these 12, at least they were offered the opportunity to respond to the charges.
Justice Abe Fortas: But I don't understand that.
You said that they've given an opportunity to rebut any inference of guilt, guilt of what?
Mr. Norman Redlich: Now, they were asked if they wish to -- if they wished to respond to the -- the initial questions were asked by the Commissioner of Investigation.
They were asked whether they wish to respond.
They said, they stood by their initial position which was a refusal to answer on grounds of self-incrimination.
Justice Abe Fortas: Well, I understand that but this -- your statement mean that you reach Slochower as meaning that if the employees admit that they did assert the privilege and for that reason refused to testify, that they may be dismissed.
Is that the way you read Slochower, without violating Federal Constitution, they may be dismissed?
Mr. Norman Redlich: No.
Justice Abe Fortas: Is that your reading?
Mr. Norman Redlich: May I ask you to restate that because I wanted to respond?
Justice Abe Fortas: They have a hearing?
Mr. Norman Redlich: Yes.
Justice Abe Fortas: The employees say yes, we claim the privilege and we did not answer the questions because of the privilege.
Now, as you read Slochower, does Slochower stand for the proposition that or that those bear facts the employees may be dismissed without running the file of the Federal Constitution?
Mr. Norman Redlich: No, I do not (Voice Overlap) --
Justice Abe Fortas: Now, tell me just how you read Slochower?
Mr. Norman Redlich: I read Slochower as saying that there must be a hearing and at that hearing it must be evident that the questions that they originally refused to answer.
There were questions which were directed to the scope of their work.
We are not dealing hear with a situation as in Lerner, Brown and Nelson where you had a serious question as to whether the question they declined to answer were questions which related to the employer-employee relationship.
Here, there were questions which they had declined to answer before the Commissioner of Investigation which did relate very narrowly and specifically to the manner in which they were performing the job which they were hired to perform for the City of New York.
Justice Abe Fortas: When you read Slochower as requiring a hearing which may be limited to the purpose of ascertaining of what the questions were in front of the limits of the questions to her as to which they claimed the Fifth Amendment.
Mr. Norman Redlich: Yes, and we as --
Justice Abe Fortas: That's not what -- that's now where Justice Clark's opinion says, is it?
Mr. Norman Redlich: Well Justice Clark's opinion talks about a -- the right of an employer to inquire into the employees fitness for office.
And what we have here when the Commissioner of Investigation questioned these people, Mr.Justice Fortas, the Commissioner of Investigation was, on behalf of the city, as a City Commissioner inquiring in our judgment precisely into that.
He was asking these questions concerning the nature of the way in which they were performing their work.
A transcript of that hearing was then presented to the -- to them by the -- to the employees at the Commissioner of Sanitations hearing.
And we really had two proceedings in which the employees were asked one questions relating to their work.
Two, they were asked whether they wish to offer any explanations to why they had declined to answer and they were perfectly free at that time and in anytime to answer questions directly, narrowly, specifically related to the performance of their work.
It is our view that we have not discharged these employees out of any automatic inference of guilt.
As employees, they have an obligation to reply specifically to questions relating to their work and incidentally as this Court has held as we interpret in Garrity and we believed to be correct, if they had responded to any questions and admitted anything which could be used in a criminal case or the fruits of it could be used in a criminal case, they could not have been criminally prosecuted.
Taking that into this whole picture, it is our judgment that there has been no violation of the privilege against self-incrimination.
Justice Abe Fortas: Your emphasis upon this city counsel for this (Voice Overlap) --
Mr. Norman Redlich: Corporation counsel.
Justice Abe Fortas: Huh?
Mr. Norman Redlich: I said corporation counsel.
Justice Abe Fortas: This corporation counsel for this city administration bothers me.
I appreciate your criteria about that but does that mean that the predecessor of city counsel -- there was -- was there a predecessor corporation counsel following Slochower?
Mr. Norman Redlich: Yes, Slochower is in 1957.
Justice Abe Fortas: What position did they take?
Did they similarly insist on a hearing before termination?
Mr. Norman Redlich: Not in -- not in every case.
I think the position which was involved by our predecessors in office was that a hearing was necessary, well, necessary is too strong.
That in -- in most cases a hearing would be provided.
The Koepnick case which is referred to by -- by counsel, is a case which I think is peculiar to its facts.
In that, it was apparent from that case that that a hearing would serve no purpose at all and that a -- because the witness was claiming there that there was absolutely no right to question them under any circumstances.
Justice Abe Fortas: Was there any account made to obtain a change in the City Charter that bring it into line with Slochower or for any reason they have to Slochower?
Mr. Norman Redlich: Not(Voice Overlap) --
Justice Abe Fortas: -- decision of the city counsel or the City Charter?
Mr. Norman Redlich: Not to my knowledge Justice Fortas.
Justice Abe Fortas: That really makes kind of a mess, doesn't it?
Mr. Norman Redlich: I had to comment on that.
I really don't think so in view of the fact that there has not been since Slochower an automatic type of dismissal.
We have a section called Section 75 of the Civil Service Law.
Section 75 of the Civil Service Law is the proceeding whereby a person is charged with certain conduct which is a basis for dismissal.
That has happened since the Slochower case.
That happened in all of these cases.
These dismissals were pursuant to Section 75 of the Civil Service Law.
The question is that -- the issue that is before us is whether at that hearing in Section 75, if all that you have is the allegation that the person claimed the privilege against self-incrimination he refuses to offer any explanation of it making be dismissed.
We say that as a matter of the privilege against self-incrimination, he can.
Now, that doesn't mean that in all cases, in the matter as the privilege against self-incrimination, he can be discharged under those circumstances.
Justice William J. Brennan: (Voice Overlap) he might get it if the city taking this position?
Slochower of course -- Slochower serve the privilege not in connection with any inquiry into any conduct of his as an employee but before The House Un-American Activities Committee was it?
Mr. Norman Redlich: That's right.
Justice William J. Brennan: Does the city make a distinction and say, “In so far as the privilege is concerned, when the city's inquiry is into the conduct as an employee of an employee, the privilege does not complete his dismissal if he asserts the privilege and refuses to answer questions directed to his conduct as an employee.”
Does the city go that far?
So that in other words the whole hearing requirement the rest of it is really -- is really not in the case?
Mr. Norman Redlich: No, because we do believe we do not go that far.
We believe that the individual should have an opportunity to explain --
Justice William J. Brennan: And you think the privilege, the federal privilege requires that that would be that opportunity, is that it, before he maybe dismissed?
Mr. Norman Redlich: I wouldn't state that the -- I'm not convinced that the federal privilege requires in light of Garrity (Voice Overlap) --
Justice William J. Brennan: Why then the federal constitutional requires that?
Mr. Norman Redlich: The hearing?
Justice William J. Brennan: Yes.
Mr. Norman Redlich: I think that the -- in light of the -- my answer, in light of Garrity, I don't believe that the federal privilege requires it because I think that any evidence that is adduced here could not be used in any criminal proceeding.
I think due process may require it and I think due process might preclude us as it may have precluded the examiners in Spevack from ranging into a -- ranging out to a scope of questions that had nothing to do with the -- the nature of the employee-employer relationship.
Justice Byron R. White: Which didn't happen here.
Mr. Norman Redlich: Which did not happen here.
Justice William J. Brennan: Nor does that happen in any of these cases.
Mr. Norman Redlich: No.
And I think that if they did we would have a serious due process --
Justice Byron R. White: But I supposed you also might say that just under your state law, you would require – they'd be required, that the Commissioner of Sanitation would have to give the employee a hearing before he fired him for refusing to talk to the Commissioner of Investigation.
Mr. Norman Redlich: That is right.
Justice Thurgood Marshall: Well, what -- what ground --
Justice Abe Fortas: But I suppose you are defending this -- I suppose you are defending this on the ground that it's necessary and proper for the city to get answers to these questions from employers with respect to the faithful discharge in their work in events necessary for administrative reasons, is that right?
Mr. Norman Redlich: That is only part of it, Your Honor.
Justice Abe Fortas: So what's the other part?
Mr. Norman Redlich: The other part is that if an employee refuses to answer a question narrowly and specifically related to the performance of this work, the city need not to keep that person on the payroll indefinitely so that he can retire with the city pension.
We have the right to dismiss it.
Justice Abe Fortas: Whatever that is, that's an embellishment of it.
But what you're trying to do is to -- you're saying that the city needs answers to these questions, is that right?
Mr. Norman Redlich: The city even needs answers to the questions or if the answer doesn't come we have the right to dismiss.
Justice Abe Fortas: Right.
But why then is this -- why then has the city here trying to administer and defend, and defend a charter provision that mimics this disciplinary action to a case where the employee refuses to answer solely on the ground or refuses solely – solely refus -- solely to the category of cases where employee refuses to answer on the grounds of the Fifth Amendment, a federal constitutional privilege?
Why does Mr.Justice Harlan asked him a few moments ago, shouldn't -- if that is the purpose, bona fide purpose, why shouldn't it -- this charter provision be phrased in terms that are consonant with the purpose, that is to say, if a city employee refuses to answer questions appropriately directed to him by a person in authority with respect to his activities that that will be grounds for dismissal?
How do you account for the restriction of this charter provision to instances where the refusal is based upon the Fifth Amendment?
Mr. Norman Redlich: Your Honor, the history of this charter provision has been indicated yesterday.
I would like to respond to that, however, by stating that if any employee refused to decline and did not give any reason, we would feel that we would have a right to dismiss him for the same reason that we dismissed him here that he refused to answer specific questions relating to the scope of his employment.
Justice Abe Fortas: On what basis?
Is there another charter provision that --
Mr. Norman Redlich: Under -- the provision under which they were -- they were discharged pursuant to a hearing under Section 75 of the Civil Service Law regarding the -- under which the city employee is -- he is entitled to those rights and entitled to judicial review from that (Voice Overlap) --
Justice Abe Fortas: Was this statute -- is this charter provision is practiced.
It seems to be directly, specifically, carefully, pointedly designed by the drafters to penalize a person for the assertion of the Fifth Amendment right.
I could understand that but then this Court decided Slochower.
And after Slochower, you tell me that as to your knowledge there was no effort to amend this charter provision.
Now this Court is faced with a request in effect by the city for us to deal with a situation which perhaps I'm not sure, but perhaps could have been dealt with by a legislative response to an opinion to a decision of this Court in Slochower.
Mr. Norman Redlich: I would say two things in response to that.
I think this Court should consider these cases in light of the -- the facts before it namely, the hearing in all cases.
And secondly, I think that the -- there is a serious question as to whether there is any violation of the privilege at all.
In light of the fact that these employees could not have been prosecuted criminally as the result of any testimony at which they may have given under this compulsion.
Now, this is -- as a result of the holding in Garrity, I think that this Court might well consider the -- applying a situation here similar to what you had in Murphy against Waterfront Commission.
These 12 employees may well have been or these 15 employees may well have been faced with the -- with what in their mind was a serious danger that if they -- that they were faced with -- between the rock and the whirlpool.
In fact, we feel that the rock no longer exists.
The rock has certainly not existed from the time that this Court's decision in Garrity because any testimony which these employees would give under these circumstances, they would not be used nor prove any of the fruits of that testimony be used.
In light of that fact, we do not see whether there has been a violation of the privilege.
The privilege does not protect against being fired if you refuse to answer.
The privilege does protect against criminal prosecution and we believe strongly that our employees are entitled to and should receive that protection and that is why we welcome the decision of this Court in Garrity.
Chief Justice Earl Warren: Mr.Redlich, may I direct your attention once more to the hearing that you have before the Commissioner of Sanitation in which you have told us that these 12 men were offered an opportunity to respond to the charges and they declined to respond to the charges.Where in the record do we find those charges?
Mr. Norman Redlich: You do not, Your Honor.
Chief Justice Earl Warren: Where are they?
Mr. Norman Redlich: They are not in the -- they are not in this particular record because the hearing took place after this lawsuit was brought, Your Honor.
The purpose --
Chief Justice Earl Warren: Would you mind telling me briefly what the form and the -- of the charges and what they contain?
Mr. Norman Redlich: The charge before the Commissioner of Sanitation?
Chief Justice Earl Warren: Yes.
Mr. Norman Redlich: It was a charge that these employees had violated Section 1123 of the Charter.
And at that hearing, as I understand it, at that hearing they were -- the employees were presented with a transcript of the inquiry which had been conducted previously before the Commissioner of Investigation.
Chief Justice Earl Warren: By the transcript, are you referring to the tapes of the -- the tapes of the wiretapping?
Mr. Norman Redlich: Yes, I'm not sure whether it was tape to -- no, no not the wiretapping, no.
This was the proceeding before the Commissioner of Investigation in which the Commissioner of Investigation asked them questions concerning this alleged conspiracy and they declined to answer on grounds of self-incrimination.
Now, that is the transcript that I'm referring to, nothing having to do with the wiretap.
The -- that transcript was presented to the employees at the hearing conducted by the Commissioner of Sanitation and they were informed that they would be in charge for the violation of Section 1123.
They were asked at this time whether they wish to explain their plea of the privilege and they were also asked whether they wish to respond.
Now, I think --
Chief Justice Earl Warren: I get that part of it but -- but in these charges that you refer to, were they're charged with having done this and that and the other thing in violation of their duties to which they put and responded?
Justice Byron R. White: What were the original questions to the 15 about?
Mr. Norman Redlich: The original questions to the 15 were about the allegation that they had taken money from private cartmen and pocketed the money instead of picking up the tickets which they were supposed to pick up.
Those were the original questions posed by the Commissioner of Investigation.
Those were the questions which we feel they as employees should have answered, they didn't answer.
Now, then the --
Justice Byron R. White: Did they have any chance to talk about those charges in the final hearing before their discharge?
You said they had said at that time, “Well, I didn't think the privilege before the Commission of Investigations but I won't now.
I'm willing to go back and talk about those old charge -- those original charges.”
Mr. Norman Redlich: They were -- at the second proceeding although the formal charge against them was a violation of 1123, they were asked as I understand it two things at the second hearing which Mr.Justice White refers to.
They were asked whether they had any explanation for their refusal to testify before the Commissioner of Investigation.
And then they were asked whether they wish to respond to the -- now, to the questions which had been asked them.
And the state --
Chief Justice Earl Warren: Where do we find -- do we find that colloquy in here?
Mr. Norman Redlich: You do not, Your Honor.
Chief Justice Earl Warren: What do we do, we just take that on fate?
Mr. Norman Redlich: I ask that -- I've answered the question as best as I can, Mr.Chief Justice.
This is --
Chief Justice Earl Warren: Well, I wonder why that isn't in here.
If that's what the state relies on I wonder why they shouldn't be here so we can determine them.
Justice Byron R. White: Where is the best description, if there is, in the record of what happened?
Mr. Norman Redlich: Could I respond to that?
The reason this is not here Mr.Chief Justice is this action was brought to enjoin the very hearing which subsequently took place.
In fact, the District Court decision in this case came down prior to the hearing.
The District Court decision was in December 1966.
The hearings didn't take place until January, so we have an incomplete record in that sense, which the normal procedure challenging this type of proceeding as in Gardner would be to go up under in Article 78.
Chief Justice Earl Warren: Well I think -- I think the thing that is bothering me is your use of the word charges.
Now, were there any -- is there any document charging these men with any misconduct any place?
Mr. Norman Redlich: Your Honor I --
Chief Justice Earl Warren: Or is it just a question of this man having asked the question to me didn't -- they didn't respond that may put those together in some form and you now refer to them as charges.
Were there any charges of misconduct against these men for having violated their duty as sanitation employees?
Mr. Norman Redlich: Mr.Chief Justice the formal charge levied against these employees was that they had violated Section 1123 of the Charter.
In that, they had refused before the Commissioner of Investigation to respond to his questions relating to their work.
Justice Abe Fortas: Was it required (Voice Overlap) --
Chief Justice Earl Warren: And then at the second hearing before the Commissioner of Sanitation, they were limited, were they, only to the reasons why they refuse to answer to the Commissioner?
Were they offered the opportunity then to say, all these questions in regard to those question, we say now that this was the situation, that's the situation and we're entitled to a trial, you want to face it and so forth?
Or were they just asked why -- why did you claim that privilege beforehand?
Mr. Norman Redlich: Although it is necessary to answer that to go beyond the record, answering it to the best of my information, I will.
Chief Justice Earl Warren: You argue that?
Mr. Norman Redlich: Pardon?
Chief Justice Earl Warren: Almost have to go beyond it, I guess.
Mr. Norman Redlich: Yes, I'm answering it to the best of my information Mr.Chief Justice with regard to the 12; they were offered that opportunity with regard --
Chief Justice Earl Warren: In which opportunity?
Mr. Norman Redlich: The opportunity to respond to the original questions that had been asked before the Commissioner of Investigation.
With regard to the three, I do not believe that is the case.
With regard to the 12 who had pleaded the privilege before the Commissioner of Investigation and who then went before the Commissioner of Sanitation, according to my best information and belief, they were asked whether they wished now to answer the questions which had been asked of them by the Commissioner of Investigation, they declined.
Now, with regard to the three who did originally answer the questions and then went before the grand jury, they had a separate hearing before the Commissioner of Investigation the next day after the 12 -- I'm sorry they went for the Commissioner of Sanitation the next day after the 12.
And according to my best information and belief that they were not given that opportunity, their hearing, it was devoted solely to the question of asking -- being asked to explain their refusal to testify before the Commissioner of Investigation.
Before the -- before the grand jury, I'm sorry, before the grand jury.
Chief Justice Earl Warren: Well then, you are placed with the question as to those three at least of whether they are -- they are fired just because they refused before the grand jury to waive their privilege.
Mr. Norman Redlich: With regard to those three, yes, Mr.Chief Justice I think you have a very similar issue to what you had yesterday in Gardner.
Justice Abe Fortas: Well I -- I don't understand this.
On page 17-a of the joint appendix, there's an affidavit of Mr.DeLury in which his quotes from the letter of notification to the 12 employees stating that their suspension was due to the fact that you invoked your constitutional privilege against self-incrimination and refused to answer.
So that -- so far as the 12 aren't concerned, am I to take it from this that they were suspended because they invoked the privilege.
Mr. Norman Redlich: Yes, because the --
Justice Abe Fortas: And thereafter when notice of hearing was served on, are you telling us that there was or was not a reference to the invocation of the constitutional privilege?
I thought you said that there was not?
Mr. Norman Redlich: No what I said was this, that they were charged with the violation of Section 1123 of the Charter and suspended pursuant to that --
Justice Abe Fortas: And at that time, what I have read is the notice that they got.
Mr. Norman Redlich: That is right and that is not --
Justice Abe Fortas: Alright.
Mr. Norman Redlich: I'm sorry.
Justice Abe Fortas: Go ahead.
Mr. Norman Redlich: And that is not inconsistent with my prior answer because there followed a hearing before the Commissioner of Sanitation.
At that hearing, they were asked to explain their refusal to answer before the Commissioner of Investigation and they were asked whether they wish to respond to the questions which had been put to them by the Commissioner.
Justice Abe Fortas: Were they given notice to that hearing before the Commissioner of Sanitation?
Mr. Norman Redlich: Oh!
Justice Abe Fortas: Did that notice say that you have -- that the basis or part of the basis was the invocation of the constitutional privilege?
Mr. Norman Redlich: Yes, the formal charge was a violation of 1123, Mr.Justice Fortas.
Justice Potter Stewart: The hearing as I understand it procedurally followed the standard set out in Civil Service Law of Section 75.
Mr. Norman Redlich: That is right.
Justice Potter Stewart: Which is in the appendix to your brief?
Mr. Norman Redlich: That is right Justice Stewart.
My time is long since -- long since up and I appreciate your patience.
My -- what we have to say on the wiretapping question has been adequately covered and ought to find the question of the prospective application of Katz and Berger, if Katz and Berger applicable at all to this situation which we doubt.
The question of the fact that there was no testimony here used in this -- no evidence adduced from that wiretap used or you have here is a refusal to answer questions based on the wiretap.
But no use of the evidence or in our judgment a use of the fruits of that evidence.
And as we indicate that if this Court were to decide to reach the ultimate constitutional question of the validity of the wiretap, we do feel that the record which the Court has before it at this time is quite inadequate to make such a constitutional determination because in order to determine the circumstances under which the government employer may properly tap the telephones of its employees, we believe most earnestly that the Court should have before a better record than it now does concerning the circumstances of this phone, the rules and regulations of this phone, the -- those facts which the employee would have reason to know about this particular phone.
We do not, and I emphasize, we do not take the position that the government has an unrestricted right to tap its employee's telephones.
We feel that there is a very definite element of privacy with regard to certain and perhaps most uses of government phones by employees.
With regard to this particular phone, we believe that a full record would demonstrate that the tap of this phone, it was a reasonable one.
We believe in conclusion that because of the fact that the Katz and Berger should be given prospect of application only.
And because of the tenuous length between the tap in this proceeding that that issue need not be reached in this case.
Justice John M. Harlan: (Inaudible)
Mr. Norman Redlich: I don't know, Justice Harlan.
I am not sure of the answer to that.
Chief Justice Earl Warren: They're secret aren't they?
The public doesn't know.
They're not public records or anything else since a matter of -- since it matter -- a confidential matter between the advocate for the wiretap and the judge who issues it, isn't that right?
And there are no requirement of any recording of it for public use in anyway shape or form, isn't that correct?
Mr. Norman Redlich: Mr.Chief Justice, I am not here to defend the 813-a proceedings.
I believe that as --
Justice John M. Harlan: I ask a question again Mr.Redlich.
My recollection is that where the case, affidavits were in the record.
Mr. Norman Redlich: I think they could be put in the record as a result of a trial.
Justice John M. Harlan: (Voice Overlap)
Chief Justice Earl Warren: If they want to give them.
Isn't that right?
Mr. Norman Redlich: Yes.
Chief Justice Earl Warren: They give -- did I understand Mr.Boudin to say that in this case he has one and they weren't given to him?
Mr. Norman Redlich: I believe the position of the Commissioner of Investigation was that there was no need to give them because of the fact that the evidence was adduced from the tap, was not used.
Justice John M. Harlan: I suppose they kept secret.
Is there a constitutional right of privacy informed?
Chief Justice Earl Warren: Thank you.
Justice Byron R. White: Mr.Redlich can I have one more question please.
On the three then I think that the Gardner against Broderick was disposed of that issue?
Mr. Norman Redlich: Yes.
Chief Justice Earl Warren: Mr.Boudin.
Rebuttal of Leonard B. Boudin
Mr. Leonard B. Boudin: Mr.Chief Justice.
I think the answer to a question was put by the Chief Justice by Mr.Justice Fortas will come clearer by a reference to 69-a of the record which consist of the model so-called charge which was only a charge, 69-a, Your Honor, only a charge of violating 1123 of the Charter and not a charge of substantive crime.
Secondly, Your Honor will see it referred only to 1123.
This was what we understood where the charges upon which we were proceeding before the Commissioner of Sanitation and not on the substantive charges of irregularity indeed with respect to the substantive charges of irregularity that were actually put in writing concerning the three, the corporation counsel refuse to go into the matter, if Your Honors recall I indicated.
They wanted to limit this to 1123 and did you take the privilege.
Now, the suggestion that is made here that somehow rather, we would be getting immunity if we had testified before the Commissioner of Investigation, I think, is the answer is given by the discussion yesterday that under 2446, that is the waiver of immunity.
And certainly, here whether it was not even the 2446, there would not have been an immunity with respect to the transaction.
But none of our people were told that they would get the ultimately discovered Garrity immunity if they had appeared before the Commissioner of Sanitation or Investigation or (Voice Overlap) --
Justice William J. Brennan: But it definitely Mr.Boudin (Voice Overlap) I gather, it is a fact, is it not, that the inquiry before the Commissioner of Investigation involving all 15, the questions there put did go to their conduct as employees.
Mr. Leonard B. Boudin: I don't dispute it.
I think the Charter is directly applicable.
I make no -- obviously that didn't deal with the subject matter of the employment, etcetera.
I would also add that Your Honors will recall statement made that the Commissioner of Investigation has secured a wiretapping order.
If Your Honors will look at 813-a, Your Honors will see that 813-a limits the applicant for a wiretapping order to a district attorney, I think I'm recalling it correctly, or to a police officer above the rank of sergeant, so that in this investigation the Commissioner of Investigation was acting as a police officer whatever may be his relations with the City of New York.
I thank Your Honors.
Justice Abe Fortas: Mr.Boudin.
Mr. Leonard B. Boudin: Yes.
Justice Abe Fortas: May I ask, do you know whether Section 75 of the Civil Service Law was enacted after the Slochower case?
Mr. Leonard B. Boudin: No, I think it -- I think it once similar occurred before.
It usually has it before, Your Honor.
Justice Abe Fortas: But the procedure was not followed in the Slochower case.
Mr. Leonard B. Boudin: No, and that may have been because the Board of Education might have had a different mechanism.
Justice Abe Fortas: Well, do you concede that Section 75 requires a hearing in this type of case?
Mr. Leonard B. Boudin: Section 75 will regard the hearing and the corporation counsel agrees in any kind of -- solely and this case involving (Voice Overlap) --
Justice Abe Fortas: So that we can read Section 75 into 1123?
Mr. Leonard B. Boudin: I do not think so because I think these are two different system.
I don't think incidentally Your Honor --
Justice Abe Fortas: I thought you said that Section 75 wouldn't require a hearing in the -- in this type of case.
Mr. Leonard B. Boudin: Based upon charges that would be filed, charges otherwise comparable but the only charge here is the charge of 1123.
In other words, I can't quite reconcile the two and find that 75 could be built into 1123.
We may also just indicate that on page 8 of our brief, we have cited two New York cases of our reply brief which suggest that the privilege against self-incrimination, the refusal to answer questions is available in disciplinary proceedings under New York Law generally.
I thank Your Honors.
Justice Potter Stewart: So the procedures of Section 75, -- the procedures of Section were followed in this case, weren't they?
Mr. Leonard B. Boudin: In the sense that the hearing was offered, except the hearing was limited to (Voice Overlap) --
Justice Potter Stewart: There was notice to all of the proceedings --
Mr. Leonard B. Boudin: Except the charges were limited if I may end with that point --
Justice Potter Stewart: But the substance of the charges and what I'm talking about the procedure of the hearing.
Mr. Leonard B. Boudin: We make no claim that 75 was not -- was violated at any (Voice Overlap) --
Justice Potter Stewart: Or that was not followed here.
Mr. Leonard B. Boudin: No, we don't regard it into the case.