411 N.E.2d 803 | Ohio Ct. App. | 1977
The appellants, Arthur J. Marsh, Jr., and James Shinsky, appeal from a judgment entered in the Court of Common Pleas of Lorain County affirming the decision of the appellee, Civil Service Commission, upholding the appellants' discharge from the Lorain Fire Department. We reverse.
Hoffman called Marsh's number. Shinsky answered the telephone. He said Marsh was also present. Shinsky was told to stay there with Marsh until the fire chief or the police arrived. James Kallis, the fire chief, returned to the station from a prior false alarm. Kallis called the telephone company to confirm the information previously given to Hoffman and Kallis then called Marsh. Shinsky again answered and was told to report with Marsh to Kallis' office immediately. Shinsky replied that he and Marsh were sick. Kallis repeated his order and stated that he would contact the police unless appellants complied. Shinsky said he was confused. Kallis hung up and immediately contacted the police department.
Several hours later, a police inspector and a sergeant arrived at Marsh's residence. Marsh inquired if the inspector had a warrant. After they were assured that the inspector merely wished to discuss the false alarm, appellants allowed the policemen inside. A young woman was also present. Appellants were told their Miranda rights. Marsh refused to talk until he consulted an attorney. Shinsky stated that the false alarm could have come from the house since he and Marsh had left the door open in expectation of a young women's arrival while they went to a drugstore. Shinsky refused to comment further.
The inspector's report was transmitted to Chief Kallis who was determined to speak with the appellants before deciding upon his course of action. The meeting was held when the appellants reported to work after recovering from the "flu." Marsh admitted he was present when Kallis spoke to Shinsky on the telephone. Shinsky stated: "I don't think that you will believe us but we didn't do it." Both refused to discuss the matter further.
Kallis then suspended the appellants from duty in identical letters, which read, in part, as follows:
"I am hereby, suspending you effective immediately from the Lorain Fire Department for Misfeasance in office and violation of Article XIX, Section #28, which states: *153
"`Officers and members shall not purposely deceive nor evade any law, ordinance, rule, regulation or order, general, special or verbal.'
"According to reports given to me, it is my opinion, you knowingly were involved in reporting a false alarm at 220 Day Drive, on November 24, 1976, at approximately 7:16 p.m."
The rule referred to in the letters is contained in the rules and regulations of the Lorain Fire Department.
The city director of public safety, Richard Koba, subsequently conducted a hearing concerning the suspensions. The hearing resulted in the discharge of the appellants. The letters informing appellants of their discharges are substantially identical to those prepared by Kallis. The Civil Service Commission voted two to one to uphold the discharges.
The dissenting member of the commission stated the true issue was whether the appellants violated Article XIX, Section 28 of the rules and regulations, not whether they had called in false alarms. He reported that the commission believed that the appellants had, "* * * willfully failed to meet the demands of their superior officer and in such a manner as to obviously diminish the value of their sworn word to loyalty and duty. * * *" He felt, however, that the penalty of discharge was too severe under the circumstances.
An appeal was filed in the Court of Common Pleas pursuant to R. C.
We agree with the appellants' contention and the consensus of the Civil Service Commission, as reported by the dissenting member, that the true basis of the discharges was the appellants' failure to answer questions concerning the false *154 alarm in a satisfactory manner. During his testimony in front of the commission, Kallis stated:
"Only you people here can tell it. He wouldn't talk to me. He buttoned up and in buttoning up, the only recourse I had was to suspend him and turn him over to my boss, the Director.
"* * *
"Mr. Hoffman did talk to Mr. Shinsky and Mr. Marsh. I had no other alternative but to suspend them and turn them over to the Safety Director because I could not get their side of it.
"* * *
"No fire fighter condones a false alarm, but being up and above the average person, where they have taken an oath to protect the City and not try and say, I don't know anything about it, and I'm not going to talk about it. See my lawyer.
"I have no other recourse, Mr. Minni. * * *"
"This is the reason I suspended them."
Koba testified in the same vein:
"These people are firemen. These are not ordinary citizens and, to me, it's their duty, their sworn duty to give testimony as to who gave a false alarm to their buddies and jeopardized their lives in a false alarm, particularly under the circumstances that were in evidence at the time, because not only did they jeopardize their lives, their buddies' lives, and their equipment, I think it was their sworn duty to give the testimony, and I have not heard any testimony from either of them."
The question remains whether appellants were discharged for exercising their privilege not to incriminate themselves. The record permits no other finding than that fire department officials contemplated criminal prosecutions of those responsible for reporting the false alarm. Captain Hoffman instructed the appellants to await the arrival of either Chief Kallis or the police. Chief Kallis immediately contacted the police after speaking to Shinsky, and the police inspector informed the appellants he was investigating the false alarm. The inspector informed the appellants of their Miranda rights which must have been interpreted by them as foreshadowing a possible criminal accusation. Reporting a false alarm is, of course, prohibited. See, e.g., R. C.
The privilege against self-incrimination must be given a liberal construction. Miranda v. Arizona (1966),
The interaction of the privilege against self-incrimination with the right of the government to oversee the official activities of its employees has been the subject of several decisions of the United States Supreme Court. In Garrity v.New Jersey (1967),
"The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. * * *"
In a companion case, Spevack v. Klein (1967),
The court returned to this subject in two cases decided the next year. In Gardner v. Broderick (1968),
"* * * 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, * * * the privilege against self-incrimination would not have been a bar to his dismissal."
The court again condemned the practice of confronting the individual with the Hobson's choice of possible loss of employment or possible criminal conviction in UniformedSanitation Men Assn., Inc., v. Commissioner of Sanitation (1968),
The remaining inquiry concerns the duty placed upon public authorities when seeking to obtain this accounting. We adopt the following conclusion:
"* * * [A] public employer may discharge an employee for refusal to answer where the employer both asks specific questions relating to the employee's official duties and advises the employee of the consequences of his choice, i.e., that failure to answer will result in dismissal but that answers he gives and fruits thereof cannot be used against him in criminal proceedings. * * *" Confederation of Police v. Conlisk (C. A. 7, 1973),
This practice will result in, "* * * a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. * * *"Kastigar v. United States (1972),
The record does not disclose the precise questions propounded to the appellants. We do hold, however, that questions specifically, narrowly, and directly relating to a firefighter's knowledge of a false alarm report concern the performance of the firefighter's official duties. The nature of the firefighter's profession and the terrible risks imposed upon the public by false alarms compel this conclusion. Questions of this nature would be covered by Article XIX, Section 28 of the Lorain Fire Department rules and regulations. The appellants were not told that any statements they made could not be used against them in a criminal prosecution. They were given Miranda warnings by the police inspector and had the right to remain silent thereafter without being penalized for that silence.
Since the appellants were discharged for asserting their privilege against self-incrimination, the action of the Civil *158
Service Commission and the Court of Common Pleas' affirmance of that action must be reversed. Reversal does not, however, mean the city is required to reinstate the appellants. The fire department officials may now conduct an investigation under the guidelines set forth above. If the appellants refuse to answer, after being informed of their "use" immunity, and that refusal to answer could result in discharge, then they face sanctions, including discharge, subject to the usual appellate review. SeeUniformed Sanitation Men Assn., Inc., v. Commissioner ofSanitation, supra (
When a public employer seeks to obtain an accounting of its employees' performance of their official duties through the threat of loss of employment, the employee may properly assert his privilege against self-incrimination. If the public employee refuses to answer questions directly related to the performance of his official duties after being informed of his "use" immunity, he may be discharged. The public employee may not be discharged for asserting his privilege against self-incrimination. The appellants were discharged for asserting their privilege against self-incrimination; consequently, the assignment of error is well taken and the judgment is reversed.
Judgment reversed.
VICTOR and BELL, JJ., concur. *159