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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
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