Legal Opinions

Court supports employee dismissal

Public employers may ask employees to disclose, without threat of criminal prosecution, information that could be the basis for dismissal.

By Alien D. Schwartz

A high school administrator discovered that money was stolen from a copying machine during the evening shift. After dusting the machine with powder that could only be seen under a black light, the administrator hid in the library to observe.

He saw a custodian taking money from the copying machine. The administrator asked the custodian to show him the change in his pockets and to have his hands viewed under a black light.

The custodian refused. The superintendent then ordered him to punch out and not return to work until they met about this incident.

At the meeting the next day, the administrator recommended the custodian's dismissal for theft, but offered him the opportunity to resign. The custodian signed a letter of resignation prepared by the administrator. There was no threat to file criminal charges.

Court ruling

In this case, People of the State of Illinois in the Relation of Patrick Schoepf v. Board of Education of Morion High School No. 201, 606 F. Supp. 385 (N.D. Ill. 1985), the employee was held to be properly dismissed. The custodian claimed his Fifth Amendment right, a privilege against self-incrimination, was violated by requiring him to place his hands under a black light as a condition for continued employment.

The court cited National Acceptance Company of America v. Bathalo, 705 F. 2d 294 (7th Cir. 1983),which held that, "The State, in its role as employer, could insist on full disclosure of matters specifically and narrowly related to job performance and could discharge those refusing to disclose." No Fifth Amendment violation existed unless the disclosed evidence was to be used in a subsequent criminal proceeding.

In this case, it was to be used in considering the continued fitness for employment. The information disclosed to the employer is privileged, held the court, since its use for employment purposes only does not violate the privilege against self-incrimination.

Liberty interest

The employee also contended that he was denied his property or liberty interest without due process because he was coerced to resign. The court held that duress is to be assessed in an objective manner and not be based on

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the employee's subjective state of mind.

Under an objective standard, the court found that the employee was faced with "two unpleasant alternatives," resignation or dismissal, but not duress. Coercion would exist if the employee could prove his employer had the knowledge or belief that the charges upon which the resignation was requested would not be a valid cause for dismissal. The evidence indicated that there was a good cause for the discharge.

The lesson to employers is clear: employees can be asked to disclose information that would be the basis for dismissal. Moreover, a lack of cooperation in disclosing information can be a basis for dismissal. Lastly, coercion does not exist if an employee is given the choice of a resignation or a dismissal in a situation where he is clearly guilty.

ABOUT THE AUTHOR: Alien D. Schwartz, attorney at law, is a partner of Bobbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. The firm represents school districts, park districts and municipalities.

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