RESPONDENT: Commissioner of Sanitation of City of New York
LOCATION: United States District Court of Maryland
DOCKET NO.: 823
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 392 US 280 (1968)
ARGUED: May 01, 1968
DECIDED: Jun 10, 1968
Facts of the case
Media for Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York
Audio Transcription for Oral Argument - May 01, 1968 in Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York
Number 823, Uniformed Sanitation Men Association Incorporated et al., petitioners, versus Commissioner of Sanitation of the City of New York et al.
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) --
Byron R. White:
Was it a wiretap because in Berger it was not a wiretap?
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.