Employment Law: BARROW V. LEXINGTON-FAYETTE URBAN COUNT CIVIL SERVICE COMMISSION (COA 7/7/2006)

BARROW V. LEXINGTON-FAYETTE URBAN COUNT CIVIL SERVICE COMMISSION
GOVERNMENT EMPLOYMENT:  Self-incriminating statements 

2005-CA-001118
PUBLISHED 
REVERSING AND REMANDING; BARBER
DATE RENDERED:  7/7/2006

This appeal involves a disciplinary action taken by the commission against Barrow, an employee of LFUCG, because he refused to answer questions relating to his employment which was affirmed by the COA.

When Barrow and his attorney arrived at Cox’s office, Cox related to them that he had been retained by LFUCG to lead an independent investigation regarding allegations of impropriety within the division. Barrow’s attorney refused to allow Barrow to answer any questions, and he asserted Barrow’s Fifth Amendment right against self-incrimination on Barrow’s behalf.

As a result of his refusal to answer questions,  Barrow was disciplined and charged with insubordination and suspended for three days.

In affirming the disciplinary action, the COA noted that Barrow was not asked to waive his constitutional right against self-incrimination when he was directed by Cox to answer questions. Rather, he was told by Cox that his right was preserved.  The cases cited in the appeal allow for the disciplining of public employees who refuse to answer potentially incriminating questions about their employment if they were not required to waive their right against self-incrimination.

Finally, COA disagreed with  Barrow’s arguement that because he acted on the  advice of his attorney in invoking his right against selfincrimination, the court erroneously upheld his suspension. . See Weston v. U.S. Department of Housing and Urban Development, 724 F.2d 943, 950-51 (Fed. Cir. 1983).

Edited by Stevens.

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