September 29, 2013: The Five Common Misunderstandings about a Firefighter’s Right to Remain Silent Fire Law Column, Firehouse Magazine – by Curt Varone
The Five Common Misunderstandings about a Firefighter’s Right to Remain Silent
Fire Law Column, Firehouse Magazine – by Curt Varone
The following is a quote from an appeals court case upholding the termination of a fire captain who refused to answer questions during a disciplinary proceeding. The captain’s name was changed to protect his identity.
[Captain Jones] argues that his failure to respond to specific inquiries by the hearing panel was an invocation of [his Garrity Rights]... and that the Commission failed to recognize or address his right to invoke his privilege to remain silent. Instead, he asserts, the Commission wrongly considered his actions to be indicative of his dishonesty. However, [Captain Jones] misinterprets Garrity, which has no bearing on this matter. ... Garrity does not protect public employees from having to answer questions concerning their conduct at their own termination hearings in a noncriminal investigation.
There is no aspect of firefighter discipline that is more misunderstood, misquoted, and maligned than the Garrity Rule. Yet the Garrity Rule and the rights it provides are vitally important for firefighters, union representatives, and fire service leaders to understand. Firefighters have lost their jobs, and fire department investigations have been mishandled – all because those involved misunderstood the Garrity Rule.
To understand the Garrity Rule, and Garrity Rights, we need to review some basic concepts about the nature of the employment relationship, and the origins of the Garrity rule itself. It is helpful if we review this information in light of the five common misunderstandings about a firefighters right to remain silent.
Common Misunderstanding Number 1: A firefighter has a right to remain silent any time he/she chooses.
An employment relationship is essentially a contract between an employer and an employee. While often the exact terms of the agreement are not clearly spelled out, certain fundamental concepts are embodied in the relationship. Contrary to popular belief, an employer has a legitimate right to ask an employee questions related to his/her work, and an employee who refuses to answer legitimate questions posed by his/her employer may be disciplined for insubordination. Answering job related questions is not optional and insubordination for refusing to answer legitimate questions about a job related matter is a serious offense that may result in termination, even as a first offense.
However, when a public employee such as a municipal firefighter is under an obligation to answer work related questions, and the answers may potentially implicate the employee criminal conduct, a Constitutional dilemma arises. The 5th Amendment to the US Constitution provides that:
“No person... shall be compelled in any criminal case to be a witness against himself”
The 5th Amendment is the basis for our Constitutional right to remain silent. So how does the right to remain silent square with the obligation of a public employee to answer an employer’s legitimate questions?
Garrity v. New Jersey
In 1967, the US Supreme Court decided the case of Garrity v. New Jersey, 385 U.S. 493 (1967). Garrity involved police officers who were accused of fixing traffic tickets. During the investigation the officers were informed of their right to remain silent, but also informed that if they remained silent they would lose their jobs.
The Supreme Court ruled that it is unconstitutional for a police department to order police officers to answer questions under threat of losing their jobs, and then use the answers to incriminate them. The department, as an employer, has a choice: compel the employee to answer questions, in which case those statements may not be used in the criminal prosecution of the individual officer, or allow the employee the right to remain silent without penalty or threat of penalty.
While Garrity involved police officers, the principle applies equally to public sector firefighters and other public employees. Garrity applies only when a public employee (such as a firefighter) is asked legitimate job related questions by his superiors, where the answers may tend to incriminate him in a criminal matter. A firefighter in a Garrity situation has the right to remain silent, but only to the extent he is not ordered or compelled to answer questions. If a firefighter is compelled to answer legitimate job related questions, he must answer the questions. Any information resulting from the compelled questioning may not be used in a criminal prosecution against the firefighter. This limitation on the use of compelled information in a criminal case is often referred to as immunity.
NLRB v. J. Weingarten, Inc.
There is a limitation on the ability of an employer to compel answers from an employee when the employee is represented by a duly authorized collective bargaining representative. Known as the Weingarten Rule, an employee who reasonably believes the questioning may lead to disciplinary action, and who requests the presence of a union representative, can refuse to answer questions until he/she has had the opportunity to confer with the union rep.
The Weingarten Rule arose out of the US Supreme Court ruling in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The Court upheld the National Labor Relation Board’s ruling that an employer commits an unfair labor practice if it denies an employee’s request for union representation under such circumstances. The NLRB’s penalty for the unfair labor practice is the same today as it was in 1975: the employee cannot be disciplined. States have universally applied Weingarten to public employees.
Thus, firefighters who have a duly authorized collective bargaining representative have the right to have a union representative present during questioning. The right must be exercised by the firefighter, and with the exception of states that have a firefighter bill of rights, the department is under no legal obligation to warn or remind the firefighter about the right prior to questioning. Once the union representative is present, and has had the opportunity to confer privately with the employee, the employee must answer the employer’s legitimate questions.
Common Misunderstanding Number 2. The option to remain silent or accept immunity protection under Garrity rests with the firefighter.
The Garrity case clearly states that the option to compel an employee to answer questions or allow her to remain silent, rests with the employer, not the employee. When questioned, an employee may choose to invoke Garrity, but it is ultimately the employer who chooses whether or not to allow an employee to remain silent.
In some cases, an employer may decide not to compel an employee to answer questions. In such a case, the employee’s exercise of her right to remain silent cannot be used against the employee for any purpose. This is true even if the employer offers the employee the opportunity to voluntarily make a statement.
But if the employer chooses to compel an employee to answer questions, the information may not be used in any subsequent criminal case against the employee, except for perjury. Once compelled to answer questions, the employee cannot refuse, and any refusal constitutes insubordination. Bad advice from union officials or attorneys to remain silent is unfortunately not a defense.
Common Misunderstanding Number 3: Once a firefighter is compelled to answer questions, the firefighter has immunity and cannot be charged with any criminal offense that he/she discloses.
An employee compelled to answer questions after invoking Garrity may be charged with the crimes that are disclosed. Garrity protects the statements made during a compelled interrogation. Any such statements are entitled to the equivalent of what lawyers call “use/derivative-use immunity”. In other words, the information provided cannot be used directly by police, nor used indirectly to develop other evidence in the criminal case. However, police are entitled to develop a case independently of the compelled information.
If the police decide to bring criminal charges against the employee, they will have the burden to prove they developed their case without using evidence obtained through the compelled statements. While this may not sound like a huge burden, it is indeed a very difficult obstacle for law enforcement to overcome.
For that reason, fire departments must be very careful when making the decision to compel an employee to answer questions in a Garrity situation. If there is a potential that a firefighter committed a criminal offense, the decision to compel answers should only be made after conferring with law enforcement and prosecutors.
Common Misunderstanding Number 4: Compelled answers cannot be used to discipline the firefighter.
When an employee is compelled to answer questions, the answers may not be used in a criminal prosecution, but they nevertheless may be used for internal disciplinary purposes. There is nothing in Garrity that prohibits an employer from using compelled statements to discipline an employee.
Common misunderstanding Number 5: An employee can refuse to answer questions that may incriminate him/her for having violated departmental rules.
The 5th Amendment right to remain silent, and the rights recognized under Garrity, apply to cases where an employee is potentially facing criminal charges. There is no Constitutional right to remain silent simply because the answers may lead to a disciplinary action against the employee, nor because they may incriminate another employee. An employee may not refuse to answer an employer’s legitimate job related questions due to disciplinary concerns.
The Grayest of the Gray Area.
While much of the law surrounding Garrity may appear to involve shades of gray, hopefully this overview has helped to clear up some of the confusion. However, there remains one big problematic gray area. It involves the question: has an employee in a Garrity situation been “compelled” to answer questions, for purposes of immunity attaching to any statements made?
In the Garrity case the officers were questioned as part of a formal investigation, and ordered to answer questions. What if they had been asked the same questions in a less formal setting? Let’s look at a couple of cases.
Case 1. A firefighter is accused of stealing money from an intoxicated patient on a medical run. The firefighter is notified of the allegations and instructed to appear with a union representative and/or an attorney before a department investigator to answer questions. As soon as the questioning begins, the firefighter states that he wishes to invoke Garrity, and his 5th Amendment right to remain silent. Thereafter, the investigator (a ranking officer) orders the firefighter to answer questions.
Many authorities conclude that for Garrity rights to be invoked, the employee must announce that he or she wants the protections under Garrity, wants to exercise his/her 5th Amendment Rights, or wants to remain silent. Case 1 is an example of an employee doing exactly that: invoking Garrity. Any statements that are compelled after invoking Garrity, may only be used for administrative investigation purposes but not for criminal prosecution.
Case 2. A firefighter is accused of stealing money from an intoxicated patient on a medical run. The firefighter is notified of the allegations and instructed to appear with a union representative and/or an attorney before a department investigator to answer questions. At the beginning of the interview the investigator reads an admonishment to the firefighter advising him that he is accused of violating department regulations by taking money, and ordering him to answer the questions truthfully or be subject to discipline for insubordination.
There is a split of opinion over whether Garrity issues can arise without the employee formally raising his/her 5th Amendment rights. Some courts have held that where a public employee is compelled to answer questions under penalty of discipline for insubordination, termination or other serious consequence, and criminal consequences may result from the answers, the employee does not need to raise Garrity prior to answering. It is the act of compelling the employee that triggers Garrity, and immunity attaches to such a compelled statement.
Case 3. A firefighter is accused of stealing money from an intoxicated patient on a medical run. Later that shift, the firefighter’s district chief calls him into his office and asks him whether or not he stole the money.
In Case 3, it is not at all clear whether the firefighter is being compelled or not, and thus it is not clear whether or not immunity protection will attach to any statements given. The question becomes whether the employee (1) subjectively believe he/she was being compelled to answer questions, and (2) whether that belief was objectively reasonable.
Certainly if the firefighter in Case 3 raises Garrity or his 5th amendment right to remain silent, and is nevertheless ordered by the district chief to answer, Garrity would apply and immunity would attach. For this reason, it is important that firefighters know their rights, and fire department supervisors understand the potential problems associated with questioning employees under these circumstances. A well intentioned officer could easily stumble inadvertently into a Garrity immunity situation.
Case 4. A firefighter is accused of stealing money from an intoxicated patient on a medical run. The firefighter is notified of the allegations and instructed to appear with a union representative and/or an attorney before a department investigator to answer questions. At the beginning of the interview the investigator reads an admonishment to the firefighter advising her that she has the right to remain silent; that she is not being compelled, ordered or required to answer questions; and that any answers she provides must be given freely and voluntarily. He also reads her a Miranda Warning and asks the firefighter to sign a Miranda Rights Acknowledgement Form. He then asks her questions about the incident.
In Case 4, Garrity specifically does not apply because the statements are not compelled. Any statement made by the firefighter in Case 4 can be used against her in a criminal case. On the other hand, if she refuses to answer it cannot be used against her in either the criminal case or a department disciplinary proceeding.
The Garrity Rule has important implications for firefighters, union representatives and fire officers. Many fire departments have adopted policies that require that employees who are being questioned be advised of their Garrity Rights as a routine part of administrative investigations. In some states, firefighter bill of rights laws require that firefighters be issued a statutory warning explaining those rights before questioning begins.
Given the challenges posed by Garrity, such policies and laws are well advised for all concerned. However, in the absence of such protections, firefighters, union officials, and fire officers need to be cognizant of the impact that Garrity has on investigative questioning. In particular, be aware of the gray area surrounding whether a firefighter has been compelled to answer. The case law is not fully developed.
Above all, firefighters who find themselves being questioned about a job related matter where the answers could potentially implicate them in a crime, should invoke Garrity up to the point they are compelled to answer. Once compelled to answer questions, firefighters must understand that any further refusal to answer questions may result in insubordination charges, and possible termination.