I hate to intrude with facts, but there is an affirmative duty for a prospective employee of the City of New York to disclose, or reveal during required background investigations, that they have committed criminal acts in the past.
If you fail to do that, and DOI (ETA: Department of Investigations, NYC governments internal police/investigatory force) finds out, you’re done.
Section 4(d)
Every officer and employee of the City shall have the affirmative obligation to report, directly and without undue delay, to the Commissioner or an Inspector General any and all information concerning conduct which they know or should reasonably know to involve corrupt or other criminal activity or conflict of interest
Section 7(d)
The appointment or employment of any person requiring background investigations under this Order shall be made subject to the completion of such investigation and a determination by the appointing authority that the appointee has the appropriate qualifications, is free from actual or potential conflicts of interest and is one in whom the public trust may be placed.
Section 7(g)
The making by a person of an intentional false or misleading statement in connection with a background investigation required under this Order, or otherwise failing to comply with the background investigation procedures established by the Commissioner, may constitute cause for removal from office or employment or other appropriate penalty.
I agree with villa: this would only be a reasonable parallel if the man spoke up in the context of saying he had no regrets about his drug/gang past and thought such activities should be legal.
Use immunity attaches by operation of law to answers given by public employees upon threat of the loss of employment. Answers “elicited upon the threat of the loss of public employment are compelled and inadmissable in evidence” in subsequent criminal proceedings. Matt v. Larocca, 71 N.Y.2d 154, 159, 524 N.Y.S.2d 180, 182 (1987); see also Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132 (1977); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316 (1973); Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S.280, 88 S.Ct. 1917 (1968); Garrity v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967) (if civil servant is called to answer questions, under pain of dismissal for refusal to answer, such answers are compelled or coerced testimony which cannot be used against the employee in any pending or subsequent criminal prosecution(s)).
Answers are inadmissable – ergo, no incrimination.
How about if the man admitted he was a male prostitute? Think he’d still have a job teaching little children? I figure that guy would be lucky to get out of the job without someone accusing him of “inappropriately” touching their little snowflake.
Frankly, I think it’s going to be very difficult for her to maintain her authority in class, when everyone knows that she used to be a prostitute. She needs a rapport with the parents and other teachers. Her past, which she “hopes” to never repeat, is also a legal risk for the school, can you imagine the lawsuit if she was accused of misbehavior?
I don’t know how that’s all going to work with this public admission.
So 4(d) does not require self-reporting past criminal activity.
Now let’s look at 7(d):
In what way did Ms. Petro violate this, or in what way does this section support her removal? Does a past months-long run as a prostitute constitute a person in which public trust may not be placed? Why?
Finally, you offer 7(g):
In what way did Ms. Petro violate this, or in what way does this section support her removal? I have not seen the specific background investigation form, but I’m willing to bet it does not require the applicant to reveal any uncharged criminal conduct. I am willing to bet it merely asks about convictions; I’ll allow it might ask about arrests. I am certain it does not ask about uncharged past criminal activity.
Not really. The 5th Amendment doesn’t cover employment, only prosecution.
This comes up with police officers all the time in internal affairs investigations. Garrity v. New Jersey holds that anything self-incriminating that comes up in an investigation will not be used in a criminal proceeding, but may be used to determine future employment.
Correct. The Fifth Amendment is not applicable here. (Although you should have cited Murphy v. Waterfront Commission for the proposition that use immunity is coextensive with Fifth Amendment protections. )
So, to avoid prosecution for a crime I committed all I need to do is apply for a job with the police and admit to my wrongdoing and it all becomes inadmissible in court?
Your admission of wrongdoing becomes inadmissible in court.
That’s not to say that other evidence of your wrongdoing is also inadmissible, because it isn’t.
The key here is the difference between use immunity and transactional immunity
Use immunity means that any testimony you give cannot be used against you. It would still be possible to prosecute you for the crimes that you admitted in your application, as long as no evidence used in the prosecution was derived from your admission, directly or indirectly.
Transactional immunity is absolute immunity from prosecutions on the transactions that you testify about, no matter the source of the evidence.
The Supreme Court has held that use immunity is coterminous with Fifth Amendment protections - that is, you can be forced to testify after a grant of use immunity, and cannot “hold out” for transactional immunity. See Kastigar v. U.S., 406 U.S. 441 (1972). See also Murphy v. Waterfront Commission of New York Harbor (compelled incriminating testimony in the context of state and federal prosecutions); Sarno v. Illinois Crime Commission; Zicarelli v. New Jersey State Commission of Investigation.
I’ll try not to hijack further but my opinion is if I tell the government about my criminal past then merely not being able to use that testimony seems insufficient as regards the 5th Amendment. If I must tell and the government then thinks, “Hmm…Whack-a-Mole did ‘X’…let’s open an investigation into Whack-a-Mole’s criminal past that he pointed out to us” sure seems like I incriminated myself to my detriment. Apparently the courts disagree.
Actually, what you describe is called “derivative use” and is also prohibited. You can be convicted, but only on evidence developed completely independently from your admissions, and the burden is on the government to show that the investigation and its evidence were wholly independent from your admissions.
Good discussion, by a brilliant and incisive commentator, here.
I’m a former public school teacher. I’ve found it’s sometimes better not to bring that up when it comes to employment. I have at times received the impression that it’s worked against me in hiring.
I strongly suspect that the school already had a clear policy in place concerning this sort of thing, and that Ms. Petro was well aware of that policy at the time of her statement. In fact, she says herself that she knows that she’s risking her job. She knew the risk, and she chose to make her statement anyway, and now she’s facing the consequences of that decision. I have a hard time pitying her for that.
Ok, so let’s say he had an injury and he used marijuana to relieve the pain and stopped when things heal. He writes a letter in support of legalizing marijuana.
Let’s say he was an illegal immigrant, and decided to do what it takes to obtain legal residence. He writes a letter in support of amnesty.
Or, let’s go for something more directly relavent…
If we heard this, do you think he’d get fired? I bet at best he just get a good talking to about being more discreet. Certainly he wouldn’t get a lot of “what kind of role model are you?” talk. We recognize that men are sexual beings, and it doesn’t make us question the morality of a single man seeking out sex. In any case, I know plenty of situations where men are actually sleeping with their students and it doesn’t merit more than a reshuffle to a new school.
All of these could be the result of other actions by the teacher in the past. Like voting Republican, for example. I mean I don’t want my kid exposed to that sort of philosophy, or to grow up thinking that that sort of behavior is in some way tolerable or a desirable path for his future, but it is up to me to explain to him that being Republican isn’t clever or funny, rather than relying on the school to fire all teachers who have ever been Republicans.
)