If Our Employees Are Really Our Most Valuable Assets Why Are We Afraid to Always Protect

If our employees are really our most valuable assets why are we afraid to always protect their rights…………..

Complete criminal investigation first, not the administrative.

Garrity or NO Garrity: If the employee can be charged with a criminal offense, DO NOT USE Garrity.  Do I need to move to terminate? If not, do not use Garrity.  Is the information in the possession of this officer you need enough to lose the criminal? Use Garrity. If not, do not use Garrity.

The Five Part Garrity Warning 1. This is an administrative not criminal investigation. 2. You are being ordered to answer questions. 3. The questions are specifically, narrowly, and directly to determine officers’ fitness for duty relative to this complaint. 4. The answers will be used administratively and not criminally. 5. If you refuse to answer, there will be disciplinary action if you refuse to answer.

Garrity et al.,v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967)

 Charged with Ticket Fixing and Obstruction of Justice.  Before questioning, each officer was advised of Miranda Rights and the  New Jersey statute requiring full cooperation or forfeit your job.  Officers answered the questions asked of them.  Admissions were used to prosecute the officers.  U.S. Supreme Court over turned the convictions stating:  “The choice imposed was self incrimination or loss of employment. It is mental as well as physical coercion that is guarded against by the Constitution.”  The Question is whether the accused officers were deprived of Free Choice to admit or refuse to answer questions.  “Violations of officer’s rights are of both the 5th and 14th Amendments.”  For the first time the U.S. Supreme court in Garrity v. New Jersey assured the Civil Rights of Government offices.  “The protection of individuals against coerced statements prohibits their use in subsequent criminal proceedings.”  “Statements obtained under threat of removal from office are coerced and are therefore protected against use in any criminal prosecution and that protection extends to all, whether they are police or others in the body politic.  The employer must actually order the employee to respond to questions, and the employee must be compelled by a threat of possible discharge to respond. The threat must be significant.  Absent such an order, not only does the employee have no obligation to answer, but no immunity is given to the use of the employee’s answers in a subsequent criminal prosecution. 8.Singer v. State of Maine, 10 IER Cases 811 (1st Cir. 1995); Fraternal Order of Police v. Philadelphia. 859 F.2d. 276 (3rd Cir. 1988); Benjamin v. City of Montgomery, 785 F. 2d 959 (11th Cir. 1986)

 An “order” to answer questions can be written, oral, or even implied.  An employee is considered to have been “ordered” to answer questions if:  (1) the officer subjectively believes that he/she is compelled to give a statement upon threat of loss of job; and  (2) the officer’s belief is objectively reasonable at the time the statement was made.  The answers must be CRIMINALLY INCRIMINATING for Garrity to be required. The Rights of Law of Enforcement Officers, 4th Ed.  These guarantees are not an option.  Were officer are given the option to waive their rights under the 5th Amendment the court said:  “It is entirely plausible that layperson given the…..Option….may feel that to save their jobs they must sign the form most generous and accommodating to their employer…”  The privilege against self incrimination is too important to be trifled in such a manner.  The U.S. Supreme Court stated in no uncertain terms that Police officers could not be discharged for refusing to give up their Constitutional rights against self incrimination. The Rights of Law Enforcement Officers, 4th Ed.  The following guideline was established to allow discharge of an officer who refuses to answer questions during an Internal Investigation:  “If the officer refuses to answer questions specifically, directly and narrowly related to the officers duties, and without being required to waive his immunities with respect to the use of his answers in a criminal prosecution, the self incrimination privilege would not bar the dismissal of the officer.”  This is the basis for the 5 point Garrity Warning.

To resolve the complex issues outlined by the “Garrity Decisions” look at the “Double Duty” outlined by the Supreme Court.

 The court has said that officer owes a double duty:  First, a duty to provide their employer with an accurate explanation of the performance of their public duty.  Second, the officer does not lose his/her constitutional rights by virtue of their position. If you apply this “Double Duty” standard to all of your cases you will never make a mistake regarding the use of Garrity or questioning employees regarding an administrative wrong doing.

 The U.S. Supreme Court put the finishing touches on Garrity with the following guidelines:  1. Public employees can not be disciplined for refusing to answer (incriminating) questions unless they have been assured that their answers will not be used against them in any future criminal proceedings.  2. Use immunity is required for testimony that has been coerced by threats of discipline.

 Once the USE IMMUNITY has been granted through a complete and clear “GARRITY WARNING” there is no LEGAL reason for the officer to remain silent.  The Officer can now be disciplined for refusal to answer questions whether they are criminally incriminating or administrative in nature.

A Review of the Five Part Garrity Admonition:  This investigation is Administrative not Criminal  You must answer the questions asked or you will be severely punished or possibly terminated  The Questions asked will be Directly, Specifically, and Narrowly worded to determine your fitness for duty  All answers are to be used Administratively and not Criminally  You will be severely disciplined or terminated if you fail to answer

This is slightly different from the previous Garrity warning but is still valid. We must simply advise the employee that he/she must answer the questions and that the answers will not be used in a criminal prosecution against them. “Garrity” prevents the use of coerced testimony in any subsequent Criminal hearing!

The “Garrity” statement can be used in a subsequent disciplinary proceeding against the officer, in a civil lawsuit brought against the employer and the officer and even in criminal prosecutions of persons other than the officer. Under some circumstances, compelled statements can even be subpoenaed by a grand jury investigating police officers, so long as the statements are no inappropriately used by the grand jury. Similarly, the mere release of internal affairs files to a prosecutor, without more, is not prohibited by the Garrity rule. P.199 Police Rights

Questioning must be limited: . In order to be valid, questions must be directly, narrowly, and specifically related to the officer’s job performance. . If the questions are not so limited, and especially if the questions go into areas of personal concerns, the agency may not insist on answers to the questions without violating the officer’s right to privacy. Shuman v. City of Philadelphia, 470 F. Supp. 449 (E.D.Pa. 1979) . Garrity applies when the level of discipline imposed for refusal to answer constitutes a “substantial economic penalty” such as discharge; . Merely threatening the employee with transfer or a short suspension may not be sufficient to invoke Garrity. . You give “Use Immunity” when you decide to give full Garrity Warning. Don’t allow employees to give it to themselves. . Many law enforcement labor organizations have developed “advice of rights” cards for their members (San Antonio, Texas) suggesting that officers preface all police reports with the following statement:

“It is my understanding that this report is made for administrative, internal police department purposes only and will not be used as part of an official investigation. This report is made by me after being ordered to do so by lawful supervisory officers. It is my understanding that by refusing to obey an order to write this report that I can be disciplined for insubordination, and that punishment for insubordination can be up to and including termination of employment. This report is made pursuant to such orders and the potential punishment/discipline that can result for failure to obey that order.”

The San Antonio advice of rights card is described in an amicus curiae brief filed by Richard Williams, Corporation Counsel for the Village of Hoffman Estates, Illinois, in United States v. Koon. . In response to the use of such cards return the report to the employee and him rewrite and return it. If you accept it the officer has secured a full Use Immunity. . Garrity only provides protection against the use of compelled statements, which are not voluntary. . The employer has the right to refuse to compel an employee to make any statements and to merely allow the employee to make voluntary statements.

If you choose NOT to use Garrity: “The employee may be faced with a choice of making no statement whatsoever at the hearing, or making a voluntary statement which could be used against the employee in a subsequent criminal proceeding.”Meek v. Springfield Police Department, 990 F. Supp. 598 (C.D. Ill. 1998).

ALL INTERVIEWS SHOULD BE NON-COERCED AND VOLUNTARY IF POSSIBLE.

To be Voluntary the following are necessary: . 1. The employee must be made aware there will be NO disciplinary action if he/she refuses to answer questions. (Consent Form) . 2. Law enforcement executives must review their S.O.P.’s to be sure that there are no provisions which require the officer to answer questions that would tend to incriminate them.  If there are such coercive policies their mere existence is sufficient intimidation to have the statement suppressed.  Where such a policy exists requiring the officer to complete a report regarding an incident which may be criminally incriminating ( any use of force report) use the following preface: “No employee shall be disciplined for failure to make a statement written or other where the statement(s) could be incriminating unless the employee has been given the ‘Garrity’ admonition: The investigation is administrative no criminally… The answers are to be used administratively not criminally. The officer must be ordered… Questions are specifically, narrowly, and directly worded to determine…fitness for duty. Disciplinary action can now be given for failure to make the required statement.”

. 3. The employee must also be made aware that they are free to leave the investigator’s office without fear of Disciplinary Action.  If during a “Garrity” interview the employee makes an unsolicited criminally incriminating statement the investigator can either:  Terminate the interview or  Attempt to redirect the interview back to its Administrative scope. This “Garrity” statement can Not be shared with Criminal Investigators. Should it be leaked there is a danger of contamination of the criminal prosecution.

When is Garrity required?

 “Garrity” protection applies whenever a supervisor requires an employee to answer questions whose answers could be Criminally incriminating.  If possible, the Criminal investigation should be completed prior to “USE IMMUNITY” being given. (This statement was intentionally repeated)  Allegations of and/or true contamination of the criminal investigation could lead to loss of evidence and the Criminal case. How?  If the same investigator handles the administrative investigation where “Garrity” was used and also is involved in the criminal investigation, contamination has occurred.  Where policy mandates that officers cooperate by answering questions or making reports, coercion has occurred.

Garrity Rule/Scope Grants of immunity: The majority of courts hold that an employee MUST be given an affirmative grant of immunity and a warning that the failure to respond to questioning could lead to disciplinary action.  Those courts hold that whenever questioning could possibly lead to criminal charges, an employer must give an affirmative guarantee of immunity and warn the officer that failure to respond to questioning could lead to disciplinary action for insubordination.  Courts….reason that law enforcement officers are not expected to be experts on the guarantees of the 5th Amendment and should not be required to guess whether they have criminal immunity for their statements. Benjamin v. City of Montgomery. 785 f.2d 959(11th cir.1986) Types of Immunity:  USE IMMUNITY: is a narrow form of immunity, and provides immunity from prosecution in a criminal proceeding from the use of statements made during an administrative interrogation.  TRANSACTIONAL IMMUNITY: is much broader and prohibits any prosecution over the entire transaction which is the subject of questioning.

Note: In Garrity the Supreme Court required only USE IMMUNITY before officers could be disciplined for refusing to answer questions

The following list of suggestions will be helpful when you are preparing for an employee interview:

“ GARRITY” SUGGESTIONS FOR EMPLOYEE INTERVIEW

1. Keep an accurate record of the information provided to the employee prior to the interview (video all interviews). 2. One type of form, a Miranda form, should be used when criminal prosecution is contemplated against the employee. 3. It should advise the employee that they have the right to remain silent and that their cooperation is voluntary. 4. The form that advises that the employee has the right to remain silent must make it absolutely clear that the incident under investigation could lead to CRIMINAL PROSECUTION.

BACKGROUND INVESTIGATION CHECK LIST FOR POLICE APPLICANTS In order to avoid negligent hiring liability, a thorough background check is the best defense. As a consequence, an employer would be wise to keep in mind the following points:

1. Carefully review all information provided by a job applicant. 2. Pay special attention to gaps between jobs, the failure of an applicant to answer all questions or “strange” answers. 3. Obtain a “consent and release” and a waiver to gather information from former employers. Even if the former employers have a policy against releasing the information, a “consent and release” document should allow you to obtain such information. (OCGA 50-18-70, Open Records Act can be used to access records from other government agencies) 4. Contact personal references provided by the applicant and thoroughly check the information provided. Document your contact in detail. 5. Verify the chronologies offered by applicants to ensure they check out in the appropriate sequence. 6. In cases which may involve security or safety-sensitive positions and law enforcement determine whether an applicant has a criminal record. 7. Carefully document the efforts you have made and the information obtained. The Applications 1. All information regarding educational experience, degrees and licenses held and employment history should be verified. 2. All references should be checked, both business and personal. 3. Require all applicants to give their consent to a background search by signing a statement on the employment application. 4. The application should state that all information will be verified and all references will be checked. 5. The application should also state that any information will be kept confidential and only communicated to those individuals who are directly involved in the screening and hiring process. 6. The applicant should also agree in writing to release former employees and others from any liability that might arise from the disclosure of information.

What other questions should we ask  You should obtain information about the employee’s wages and benefits to ensure that you are not going to be putting the person in a situation where he or she might grow even more dissatisfied about compensation than in the previous position. Also, information should be solicited concerning the names of previous supervisors. If the applicant cannot recall the supervisor’s name, there may be a problem with this applicant.