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September 11, 1969


The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 Upon cross-motions for summary judgment, plaintiffs' motion for such relief is granted to the extent of ordering plaintiffs reinstated as employees of the City of New York. Plaintiffs' alternative motion for discovery is denied. Finally, defendants' motion to dismiss the complaint is denied.

 This action, which was commenced in December, 1966, by plaintiffs, who are employees of the New York City Department of Sanitation at its East 91st Street Marine Transfer Station, seeks declaratory judgment and injunctive relief setting aside plaintiffs' dismissal from employment by the City of New York for refusing to answer certain questions put to them by a city investigating officer and incident to the employment of plaintiffs. Plaintiffs were granted relief by the Supreme Court of the United States, which overruled earlier decisions of this court and the Court of Appeals for the Second Circuit. *fn1" Pursuant to the judgment of the Supreme Court, this case was remanded to this court for further proceedings in conformity with the Court's opinion. On July 25, 1968, and as a result of the opinion of the Supreme Court, Judge Cannella entered an order directing that the original complaint of plaintiffs be reinstated, that plaintiffs be returned to their jobs and that they receive all back pay and other perquisites due them from the time of their suspension until such reinstatement. In addition, the order provided that the defendants would have the right to take appropriate action with respect to any plaintiff "who refuses to answer questions specifically, directly, and narrowly relating to the performance of his official duties" so long as he was not "required to relinquish the benefits of his constitutional privilege".

 Before plaintiffs were reinstated, however, and on August 5, 1968, plaintiffs moved in this court for an order enjoining defendants from investigating plaintiffs and conducting administrative hearings regarding plaintiffs' employment status and providing additional discovery. Judge Pollack in a memorandum dated August 12, 1968 denied plaintiffs' motion as premature but granted them leave to serve a supplemental complaint, 287 F. Supp. 703 (S.D.N.Y.1968).

 Nine days later on August 21, 1968, plaintiffs were reinstated in their jobs in the Department of Sanitation. On the same day they were called to appear at an inquiry conducted by the Deputy Administrator of the Environmental Protection Administration of the City of New York, the agency which now encompasses the Department of Sanitation. At that hearing, one of plaintiffs, Mr. Peter Lombardo, was questioned concerning the performance of his official duties as a sanitation man. Prior to the questions being put to Mr. Lombardo, the Deputy Administrator, Mathias L. Spiegel, Esq., described to Lombardo the nature of the inquiry and advised him of his constitutional rights, including the right to counsel and the right to remain silent. Spiegel further stated as follows:

"You are further advised that neither the answers you may give to the questions propounded to you at this [proceedings], nor any information or evidence which is gained by reason of your answers, may be used against you in a criminal prosecution except that you may be subject to criminal prosecution for any false answer you may give under any applicable law including Section 1121 of the New York City Charter."

 Mr. Lombardo, who was represented by counsel (as were all the other plaintiffs at this inquiry), then asserted his Fifth Amendment privilege against self-incrimination and refused to answer the questions put to him about the performance of his duties as a sanitation man. Lombardo, through his counsel, also stated that he refused to answer because the inquiry was based on alleged illegal wiretapping in violation of his Fourth Amendment rights. By agreement of the parties, it was stipulated that all of the remaining plaintiffs would take the same position if they were asked the same or similar questions. Accordingly, the hearing was thereupon closed.

 Because of their refusal to testify, plaintiffs were suspended from their duties with the Department of Sanitation. On August 30, 1968, charges were served upon them individually stating that their refusal to testify constituted misconduct and reflected discredit on the Department of Sanitation of the City of New York.

 In accordance with Section 75 of the New York Civil Service Law, McKinney's Consol.Laws, c. 7, hearings on the charges were held before a special hearing officer, George Leisure, Jr., Esq., on October 31 and November 14, 1968. Seven witnesses were called on behalf of the Commissioner of Sanitation in support of the charges against plaintiffs. In addition, plaintiffs were given another opportunity to answer the questions which they had refused to answer on August 21, subject to substantially the same instructions and advice concerning their rights and obligations. On or about December 16, 1968, Hearing Officer Leisure filed his final report and recommendations. After making findings of fact, the hearing officer concluded that the assurance of immunity by Deputy Administrator Spiegel was coextensive with the privilege conferred by the Fifth Amendment. He reasoned that under the law it was not necessary to require a statutory grant of immunity and that neither the hearing examiner nor another responsible officer need prescribe the precise scope of immunity in his warning. He concluded that Mr. Spiegel's warning granted plaintiffs sufficient immunity with respect to the use of their answers or the fruits thereof in a criminal prosecution. Consequently, the hearing officer ruled that the charges and specifications which, in substance, were failure to answer questions relating specifically, directly and narrowly to their official duties, had been properly sustained and that the plaintiffs' failure or refusal to answer questions under the circumstances properly subjected them to dismissal. He forwarded his report to the Commissioner of Sanitation with the recommendation that all of plaintiffs be dismissed from their positions with the Department of Sanitation of the City of New York.

 For reasons to be discussed hereinafter, I disagree with the ultimate conclusions reached by the hearing examiner and the Commissioner of Sanitation and determine that plaintiffs must be reinstated as City employees. As will appear from such discussion, my analysis and conclusions make it unnecessary to consider and pass upon plaintiffs' contentions that "transactional immunity" must be conferred upon them and that the underlying wiretap order and resultant wiretap were illegal. From this, it follows that no further discovery, as prayed for by plaintiffs, will be necessary.

 Speaking for the majority of the Supreme Court in its opinion in this case, Mr. Justice Fortas stated:

"* * * if New York had demanded that petitioners answer questions specifically, directly, and narrowly relating to the performance of their official duties on pain of dismissal from public employment without requiring relinquishment of the benefits of the constitutional privilege, and if they had refused to do so, this case would be entirely different. In such a case, the employee's right to immunity as a result of his compelled testimony would not be at stake. But here the precise and plain impact of the proceedings against petitioners as well as of § 1123 of the New York Charter was to present them with a choice between surrendering their constitutional rights or their jobs. Petitioners as public employees are entitled, like all other persons, to the benefit of the Constitution, including the privilege against self-incrimination. (citing cases). At the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights." 392 U.S. 280, 284-285, 88 S. Ct. 1917, 1920, 20 L. Ed. 2d 1089.

 In their principal submission on these motions, defendants (hereinafter "the City") contend that they have complied with this and similar language in the Court's majority opinion, i.e. that in the proceedings before Deputy Administrator Spiegel and Hearing Officer Leisure, the City questioned plaintiffs "specifically, directly, and narrowly" regarding their duties as employees without compelling them to forfeit the benefits of their Fifth Amendment privilege. The City argues that plaintiffs have sufficient assurance of immunity and that neither their words nor the fruits thereof can be used against them in any criminal prosecution which might be brought in the future.

 The provision of immunity is crucial. It would be a distinction without a difference to contend that under the Supreme Court's decision in this case the City cannot ground dismissal from employment upon refusal to sign a waiver of immunity, but that it can make refusal to speak without a grant of immunity a basis for dismissal. In both cases, the employees face dismissal for refusal to give self-incriminating testimony without a grant of immunity from the City. The form by which the employee is ...

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