Opinion
Civ. 1971-80.
May 1, 1972.
Robinson Speller, Buffalo, N.Y. (Richard O. Robinson, Buffalo, N.Y., of counsel), for plaintiffs.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, Albany, N.Y. (Douglas S. Dales, Jr., Asst. Atty. Gen., of counsel), for defendants Lefkowitz and Rockefeller.
James L. Magavern, Erie County Atty., Buffalo, N.Y. (Justyn E. Miller, Asst. County Atty., of counsel), for defendant Tutuska.
Before FEINBERG, Circuit Judge, and HENDERSON and CURTIN, District Judges.
The plaintiffs in this action are licensed architects who have in the past been employed by various municipalities and state and county agencies in New York. In February, 1971 they were called to testify before the holdover January, 1971 Erie County Grand Jury. At that time both were requested to sign waivers of immunity, and each declined while asserting his Fifth Amendment privilege against self-incrimination. Thereafter, in February, 1971, the Erie County District Attorney sent the following letter to the County Executive, County Attorney, County Legislature, State Attorney General, State Commissioner of Transportation, and the plaintiffs' architectural firm:
Please be advised that the following persons were subpoenaed to appear before the January, 1971 Hold-over Erie County Grand Jury to testify with regard to an investigation concerning transactions and contracts that they had with the County of Erie, a political subdivision of the State of New York:
J. Lloyd Walker M. Russell Turley Robert H. Stievater
Pursuant to said subpoenas they were individually asked to sign a Waiver of Immunity against subsequent criminal prosecution and each refused. Mr. Walker was nonetheless called before the Grand Jury and has testified with immunity. Mr. Turley and Mr. Stievater, upon their respective refusals to sign such a waiver, were excused and have not been called before the Grand Jury.
Your attention is called to Article 5-A pertaining to Public contracts as recited in the General Municipal Law, and more specifically, Sections 103-A and 103-B, pertaining to cancellations of existing contracts and disqualifications of future contracts and awards with any political subdivision of the State of New York.
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Claiming that the defendants now threaten to nullify the plaintiffs' employment opportunities and contractual rights, plaintiffs pray for a judgment declaring Sections 103-a and 103-b of the New York General Municipal Law and Sections 2601 and 2602 of the New York Public Authorities Law violative of plaintiffs' Fifth Amendment rights. Since they further seek a permanent injunction against the operation of the above statutes, a three judge panel was convened to hear argument.Each of the sections which plaintiffs attack was added to the laws of New York in 1959. Their background is recited in detail in United States ex rel. Laino v. Warden of Wallkill Prison, 246 F. Supp. 72, 92-99 (S.D.N.Y. 1965), aff'd per curiam, 355 F.2d 208 (2d Cir. 1966), wherein an attack on the constitutionality of Section 103-b was unsuccessful. Aside from minor variations in language, the statutes are essentially identical. Generally, they provide that in all contracts awarded by a municipality or public authority of the state for work or services, a clause must be inserted to provide that, upon refusal of a person to testify before a grand jury, to answer any relevant question, or to waive immunity against subsequent criminal prosecution, such person and any firm of which he is a member shall be disqualified for five years from contracting with any municipality or public authority, and any existing contracts may be cancelled by the municipality or public authority without incurring penalty.
The narrow issue before the court is whether plaintiffs' "testimony was demanded before the grand jury in part so that it might be used to prosecute [them], and not solely for the purpose of securing an accounting of [their] performance of [their] public trust." See Gardner v. Broderick, 392 U.S. 273, at 279, 88 S.Ct. 1913 at 1916, 20 L.Ed.2d 1082 (1968). In view of the Supreme Court's decision in Gardner and a number of other cases, discussed below, the proper resolution of the question is not difficult.
In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the court held that statements made by police officers during an investigation by the state attorney general into the alleged fixing of traffic tickets were inadmissible since the choice given to them — either to forfeit their jobs or incriminate themselves — violated their constitutional privilege against self-incrimination. On the same day, in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), the court decided that New York could not disbar a lawyer solely for refusing, on the basis of the privilege against self-incrimination, to produce financial records and to testify at a judicial inquiry.
In Gardner, the court clearly set out the controlling principle. While a state may not discharge a public employee for refusing to waive a right which the Constitution guarantees to him, such a discharge would be without constitutional prohibition if, without being required to waive his immunity, the public employee fails to answer questions relevant to the performance of his official duties. The point was reiterated in Uniformed Sanitation Men v. Commissioner, 392 U.S. 280, at 284-285, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968):
As we stated in Gardner . . . 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 . . . 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. . . . 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.
Quite clearly, then, the plaintiffs' disqualification from public contracting for five years as a penalty for asserting a constitutional privilege is violative of their Fifth Amendment rights. Equally clear is that, within the proper limits, public employees are not immune from being compelled to account for their official actions in order to keep their jobs. Until rewritten so as to comply with constitutional standards, Sections 103-a and 103-b of New York's General Municipal Law and Sections 2601 and 2602 of the New York Public Authorities Law are unconstitutional, and the defendants are enjoined from their further enforcement.
So ordered.