cdTOCtest

II. APPLICABILITY OF CONSCIENTIOUS

EMPLOYEE PROTECTION ACT AND LAW

AGAINST DISCRIMINATION

A person statutorily barred from obtaining public
employment because of a criminal conviction cannot
maintain a wrongful discharge action if he or she
subsequently regains a public position and is later fired.
Cedeno v. Montclair State Univ., 319 N.J.Super. at 154,
156.

III. FORFEITURE ARISING FROM IMMU-

NIZED TESTIMONY OR REFUSAL TO TES-

TIFY

A. Statutory Provisions

The pertinent statutes addresses the public employee’s
duty to appear and testify as to matters directly related to
his or her office, subject to removal if he or she fails or
refuses to appear and testify. They also explain the
applicability of privileges and the effect of admitting the
commission of offenses involving the employee’s job.
N.J.S.A. 2A:81-17.2a1 to 5; see State v. Korkowski, 312
N.J.Super. 429, 433 (App. Div. 1998); In re Grand Jury
Subpoenas, 241 N.J.Super. 18, 30 (App. Div. 1989).

B. Constitutionality

These statutes violate neither a public employee’s Fifth
Amendment rights nor equal protection of the laws. State
v. Vinegra, 73 N.J. 484, 489-90 (1977); State v. Falco, 60
N.J. 570, 583-86 (1972); Banca v. Town of Phillipsburg,
181 N.J.Super. 109, 113-14 (App. Div. 1981); Kugler v.
Tiller, 127 N.J.Super. 468, 473-74 (App. Div. 1974); see
also Gardner v. Broderick, 392 U.S. 273 (1968); Garrity v.
New Jersey, 385 U.S. 493 (1967).

C. Procedures

When public officials unqualifiedly declare their
intention not to testify before a grand jury on matters
relating to their office, no need exists to put specific,
relevant questions before them prior to institution of
removal proceedings. The refusal to testify, however, does
not justify their summary removal from office where
factual issues arise to whether they had been informed that
the inquiry concerned matters directly related to their
office and to whether they were advised of their rights and
duties. Kugler v. Tiller, 127 N.J.Super. at 476-78.

Public officials must be clearly, unambiguously and

expressly advised of their use immunity at the outset as a

prerequisite to the institution of removal proceedings

premised upon their refusal to testify. They must similarly

be advised that refusal to testify will result in removal.

Banca v. Phillipsburg, 181 N.J.Super. at 116.

The public employee, though, must claim the privilege

against self-incrimination to receive immunity. Because

they have a statutory duty to appear and testify about

matters directly related to their employment, employees

who are not the investigation’s target need not be advised of

the consequences of failing to appear until they so fail. State

v. Korkowski, 312 N.J.Super. at 434-35. Also, N.J.S.A.

2A:81-17.2a2’s grant of immunity applies only to public

employees who are targets of a grand jury’s investigation.

Id. at 436-37. Immunity, though, extends only to

subsequent criminal, not civil, proceedings, and the

statutes’ removal proceedings are civil in nature. Shusted v.

Traenkner, 155 N.J.Super. 23, 27 (Law Div. 1977), appeal

dismissed, 163 N.J.Super. 445 (App. Div. 1978).

D. Purging Previous Refusal to Testify

N.J.S.A. 2A:81-17.2a1 categorically states that any

public employee who fails or refuses to appear and testify

shall be subject to removal from office. The statute

contains no provisions which permit a recalcitrant witness,

having refused to testify, to purge himself or herself by

subsequently agreeing to appear and testify before a grand

jury. Without deciding whether there would ever arise

circumstances under which a pubic employee should be

permitted to purge a previous refusal to testify, the

Appellate Division has held that those circumstances

certainly do not arise after the employee has been given the

opportunity to testify three times and refuses to do so,

although warned upon each occasion both that removal

might ensue and that his testimony would enjoy use and

fruits immunity. Hyland v. Smollock, 137 N.J.Super. 456

(App. Div. 1975), certif. denied, 71 N.J. 328 (1976).

E. Definition of Public Employee

For the purpose of these provisions the term “public

employee” is broadly defined in N.J.S.A. 2A:81-17.2a. In

Hyland v. Ranone, 141 N.J.Super. 48 (App. Div. 1976),

aff’d o.b. 75 N.J. 97 (1977), the court found that defendant,

a police officer, was properly removed from office even

though at the time he appeared before the grand jury and

refused to testify he had not been on active duty for a

considerable period of time because of a disability. Courts

have rejected the holding in Shusted v. Coyle, 139

N.J.Super. 314 (Law Div. 1976), that the statements are