to the use of his answer or the fruits thereof in a criminal prosecution of himself." Id. See also id. at 285, 20 L. Ed. 2d at 1088 (concurring opinion).
This distinction between, on the one hand, permissibly burdening the choice to remain silent and impermissibly compelling outright waiver of the immunity conferred by the privilege, on the other, has drawn repeated approval in the cases that have arisen subsequent to Gardner. Uniformed Sanitation Men Association, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 20 L. Ed. 2d 1089, 88 S. Ct. 1917 (1968), invalidated the removal of municipal workers who, on the threat of losing their jobs, refused to sign waivers surrendering their fifth amendment immunity. Similarly, the distinction drawn in Gardner was applied in Lefkowitz v. Turley, 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973) and Lefkowitz v. Cunningham, 431 U.S. 801, 97 S. Ct. 2132, 53 L. Ed. 2d 1, 45 U.S.L.W. 4634 (1977) to strike down rules that imposed the forfeiture of government contracts and political office unless the parties gave up both their right to remain silent and the immunity that goes along with it.
These cases however do not control here. In this case, in sharp contrast to the situation involved in Gardner, Sanitation Men, Turley and Cunningham, no effort was made to compel plaintiff into giving up his fifth amendment immunity or else risking the loss of his livelihood. Rather, plaintiff here was faced with a choice of entirely different dimensions. He could have either contested his proposed removal by disclosing information about the pending criminal charges and in the process exposed himself to potential self-incrimination, or as he did, he could have chosen to remain silent and thereby sacrificed his right to a hearing and, through that, the chance of retaining his job. No waiver of fifth amendment immunity was compelled. To be sure, this choice placed plaintiff on the horns of a dilemma and burdened him in the exercise of his fifth amendment right to remain silent. But under Gardner and its progeny the choice that plaintiff was faced with simply did not rise to constitutional proportions. No constitutional impediment prevented the government from discharging Pinkney "for refusing to divulge to appropriate authority information pertinent to the faithful performance of [his] [office]." Sanitation Men, supra, 392 U.S. at 285, 20 L. Ed. 2d at 1088 (concurring opinion).
The resolution of this constitutional question does not entirely dispose of the fifth amendment claim in this case. The remaining issue is whether and in what manner the appeal process established by Board Resolution 70-1 should be construed to take account of the fifth amendment predicament faced by employees who, like Pinkney, are being prosecuted for criminal offenses and at the same time are being disciplined for misconduct in office. Given the continuing stigma that attaches to removal on the grounds of misconduct, the Court is convinced that the available procedures for contesting disciplinary actions should be broadly read to provide these employees an opportunity to clear their names and reputations.
In the Court's estimation, these procedures should not be construed, as the Board apparently read them in this case, to deny administrative hearings to employees, who, like plaintiff, awaited the outcome of criminal prosecutions before promptly appealing the disciplinary action taken against them.
The reason for this conclusion is straightforward. Provisions of Board Resolution 70-1 give subject employees the right to appeal decisions demoting, suspending and removing them. But the regulation does not place limitations on the time within which appeals have to be taken. Despite the uncertainty in this regard, the Board deemed plaintiff's bid for reinstatement to be untimely.
As the Board stressed: "Although no time limit is set forth in Resolution No. 70-1 for filing an appeal, [the Personnel Committee of the Board] believes that the expiration of one year following your dismissal is too long a delay in filing an appeal. . . . The Committee has recommended, and the Board approved, that the appeal is not timely. Your request is, therefore, denied."
In the Court's view, this reading of Resolution 70-1 wrongly failed to take account of the fact that plaintiff was not in a position to contest his dismissal until after the ongoing criminal prosecution was concluded. A proper regard for this understandable disability, particularly in light of the remedial purposes of Board Resolution 70-1, should have led the Board to convene a hearing to consider the case on the merits.
This is not to suggest that the Board is obligated to entertain appeals regardless of when they are taken. On the contrary, timeliness is an important consideration in determining whether appeals should be entertained, in that an unnecessarily long delay will assuredly hinder the fact-finding process and in the process prejudice the employing authority. In instances where prejudice results, untimeliness rightly excuses the obligation to process the appeal. But where, as here, the delay in noting an appeal was kept to a minimum and, beyond this, was traceable to the assertion of fifth amendment rights, the uncertainty created by Resolution 70-1 in regards to taking appeals should not be held against the employee so as to deny him the chance to present his side of the case. This is especially so where, as in this case, the subject to be aired is a matter of enduring importance to the employee.
The question of appropriate relief is easily resolved by taking account of the injuries that Pinkney wrongfully sustained. The Court has found these to be breach of contract and the wrongful denial of Pinkney's right to appeal his termination. Plaintiff claims that he is entitled to reinstatement with back pay and accompanying benefits, adjustment of his personnel file and lost wages from the date of his termination. In the Court's view, however, the breadth of this relief greatly exceeds the scope of defendants' wrongful conduct.
As to the contract claim, the Court has found that the College improperly deprived Pinkney of the benefits of his employment agreement. Thus plaintiff is justly entitled to an award of back pay from the effective date of his termination on May 3, 1974 to June 30, 1974, the date on which the contract would have expired had the College not acted to terminate it prematurely. Pinkney however is not entitled to an award of reinstatement. While the indictment against him did not constitute grounds for removal under the contract, once the contract had expired, the College was free to decide not to reappoint plaintiff if it so chose. Hence to award Pinkney reinstatement and lost wages despite this would be to assume, wrongly, that if the College had not terminated the agreement prematurely, it automatically would have chosen to renew it. The assumption is still mistaken even though the removal for cause would no doubt have played a part in the renewal decision. Cf. Mt. Healy City Board of Education v. Doyle, 429 U.S. 274, 284-286, 97 S. Ct. 568, 574-575, 50 L. Ed. 2d 471, 482-83 (1977). A fair assessment of the undisputed facts indicates that the College would have taken just the opposite course, and decided against renewing the agreement.
The wrongful denial of Pinkney's right to a post-termination hearing similarly does not justify awarding the array of remedies he seeks. This denial deprived plaintiff of the opportunity to clear his name and, through that, the chance of convincing appropriate authorities that he should be retained in the College's employ despite the indictment against him. In the Court's view, the nature of this deprivation counsels remanding the case back to the Board since it, not the Court, is the body charged with the responsibility of making personnel decisions according to the best interests of the College. This Court can however guarantee that the process for rendering this decision is fair. An appropriate order will be issued of even date herewith.
The foregoing opinion shall constitute the necessary findings of fact and conclusions of law.
JOHN J. SIRICA / UNITED STATES DISTRICT JUDGE