The New York City Department of Investigation of the City of New York (DOI) is one of the oldest law enforcement agencies in the United States. According to its mission, as stated in the DOI website, DOI “investigates City employees, those doing or seeking to do business with the City, as well as members of the public who engage in corrupt, fraudulent or unethical activities involving the City.”
DOI has the power to subpoena witnesses or documents, administer oaths and to examine such persons that it may deem necessary in ascertaining facts in connection with any study or investigation it is authorized by law to investigate. However, the courts will quash subpoenas made to conduct a fishing expedition or to harass an individual and/or a business.
DOI has the authority to refer any evidence of misconduct to the District Attorney’s Office so that it may initiate criminal prosecution.
Given the nature of DOI’s investigatory jurisdiction and the conflicts that may arise, individuals who are asked to meet with DOI are entitled to legal representation; they are not entitled to union representation. To elaborate further, unions represent all the members and sometimes those interests are not aligned with the interests of the individual being investigated.
Generally, City employees may be asked to appear and answer questions before DOI relating to the performance of their official duties. However, there are two types of interviews: (1) voluntary; and, (2) compelled.
If the interview is voluntary, anything that is disclosed may be used against the employee/subject in both a civil and criminal context. In other words, the State may seek to criminally prosecute the individual while the employer simultaneously initiates Civil Service Law § 75 disciplinary charges.
Where an interview is compelled, the information that is disclosed may only be used against the individual in a civil context, and the person is cloaked in immunity from criminal prosecution with respect to the information that was disclosed. To compel a person to answer questions, DOI must first advise the individual that “neither their statements nor any information or evidence derived there from will be used against them in a subsequent criminal prosecution other than for perjury or contempt arising from testimony.” This type of immunity is referred to as use-immunity.
Where DOI does not advise the employee of use-immunity, it is critical to clarify that it will attach. DOI is a law enforcement City agency that refers matters discovered in its investigations to other law enforcement entities for criminal prosecution. To do this, the representative should ask if use-immunity will apply.
Investigators may use deception and claim not to know what use-immunity is, or how it applies, and whether they have the authority to grant it.
If the interviewee is informed that use immunity applies, then s/he must proceed with the interview and answer questions relating to his/her official duties. In this context, whatever the subject of the interview discloses may be used against him or her in a Civil Service Law § 75 disciplinary hearing. If the individual declines to proceed, he or she may be subject to disciplinary action, including termination of employment.
If you are the subject of an investigatory interview, it is important to retain competent and experienced counsel to protect the status of your employment and avoid criminal prosecution. The Law Offices of Fausto E. Zapata, Jr., has successfully represented hundreds of individuals asked to participate in investigatory interviews with DOI.