Balancing Public Employers’ Power to Investigate with Employees’ Right to Remain Silent
Each year, hundreds, if not thousands, of police officers and firefighters are internally investigated by their municipal employers. These interactions implicate various statutory and bargained for protections. At the same time, when the government questions its employees certain protections afforded by the U.S. Constitution become relevant.
For those who represent unions, employees, and employers, these protections are commonly referred to as “Garrity rights.” Predictably, Garrity rights were born from a case – namely Garrity v. New Jersey. The other seminal U.S. Supreme Court case regarding public employees’ right to remain silent is Gardner v. Broderick. Per Garrity, statements made by public employees, when compelled to answer questions during their employer’s internal investigation under the threat of termination, are not able to be used in subsequent criminal proceedings. The converse is true too. Per Gardner, a public employer is not empowered to condition future employment on a public employee’s waiver of her/his privilege against self-incrimination.
The 7th Circuit, in Atwell v. Lisle Park District also helped define the contours of the protections annunciated in Garrity and Gardner. In Atwell, a public employee was told to meet with the employer’s attorney to be questioned. The employee’s attorney informed the park district, because his client was asserting her Fifth Amendment privilege, she would not attend the meeting. The employee was terminated. The 7th Circuit upheld the termination. The court explained that an employee’s assertion of her Fifth Amendment privilege was premature. Put plainly, employees cannot refuse to meet with their employer and must wait until they are asked a question before they can choose to remain silent.
In 1987, the Appellate Court of Illinois decided People v. Bynum. In Bynum, an on-duty Illinois State trooper was convicted of “failing to reduce speed to avoid an accident.” The trooper was driving an unmarked squad car that collided with a bicyclist. After the accident occurred, the trooper was directed by a supervisor to complete a report and participate in an investigatory interview. The trooper knew he was required to follow all orders and that failure to complete the report or answer questions could result in discipline. The Illinois Appellate Court held an “overt threat” of dismissal was necessary to have Garrity protection arise. The court explained the mere possibility of termination was not sufficient to create a coerced statement. As such, the court held the trooper’s conviction should stand.
On April 1, 2010, the Fourth District of the Appellate Court of Illinois decided People v. Smith. In Smith, before being questioned by their employer (the Peoria Police Department) three Peoria police officers were issued “Garrity warnings.” The warnings stated they were ordered to answer all questions “as a condition of employment. In view of this possible job forfeiture, I have no alternative but to abide by this order.” The warnings also promised the statements would only be used for internal purposes and could not be used in a criminal case. After the warning, the officers answered all of their employer’s questions. As part of the criminal case, the local State’s attorney sought copies of the internal officer’s internal statements. The court quashed the subpoena, concluding, “we find that the ‘Garrity Warnings’ standing alone are sufficient to support the application of Garrity immunity.”
There are some clear practical maxims that, if followed, protects a firefighter’s or police officer’s Fifth Amendment rights and protects the integrity of the employer’s internal investigation: 1) an employee questioned by his or her employer, when feasible should avail themselves of union or legal representation; 2) the employee should attend all meetings (s)he is ordered to attend; 3) before asking any questions, the employer should issue a “Garrity warning” crafted by their attorney; 4) when appropriate, the employee should refuse to answer questions based upon his Fifth Amendment privilege until threatened with termination (thereby immunizing him/her); and 5) an employee’s answers to questions need to be truthful. This is an admittedly simplified analysis of a relatively complex and changing area of law. However, both the employer and employee are best served by having legal counsel familiar with Garrity and its progeny advise them during the internal investigative process.