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MRSC In Focus › HR Advisor March 2005
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MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics,and Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*

Investigating Unlawful Activity: What You Need to Know About the Garrity Rule

March 2005

Bruce Schroeder
Employment/Litigation Attorney
Rod Younker
Employment/Litigation Attorney
Summit Law Group, PLLC

Among the most important differences between managing a public sector work environment and an analogous private sector setting is the applicability of constitutional rights in the public sector. The Constitution protects citizens from actions by the government. Because in the public sector the government is the employer, public sector employees enjoy constitutional rights in the workplace that their private sector counterparts do not. Public sector employees are protected, for example, from unlawful searches, from losing their jobs (in many cases) without due process, and from being forced to incriminate themselves in criminal misconduct. The last of these rights - the Fifth Amendment right against self-incrimination - is one of the more confusing and misunderstood procedural rights of public sector employees.

Through a long and winding series of court decisions dating back to 1966, the protections afforded to public sector employees' Fifth Amendment rights have been distilled into the so-called "Garrity Rights," named after a Supreme Court decision that first addressed the issues. Because Garrity Rights are only implicated by situations involving unlawful activity, they arise only in circumstances where the misconduct is most serious and where employers can least afford to make a procedural error in an investigation or in administering resulting discipline. Therefore, understanding employees' Garrity Rights and mastering the steps necessary to preserve them are very important skills for public sector managers.

The Origin and Evolution of the Garrity Rights

The Garrity case involved a state investigation into alleged ticket fixing by police officers. The officers were informed during the investigation that they must respond to questions during the investigation, and that failing to do so would result in discharge for insubordination. Statements made by the officers during the investigation were then used in subsequent criminal prosecutions. In a challenge to their convictions made by the affected officers, the Supreme Court determined that the incriminating testimony had been obtained from the officers by "coercion," and that such coercion violated the Fifth Amendment. The Court determined that the compelled confessions could not be used in a criminal matter. The essential holding of Garrity, as the Supreme Court made clear in a number of related cases, is that a public sector employee cannot face a "substantial economic penalty" (usually discharge) for refusing to waive his or her privilege against self-incrimination.

Garrity spawned an entire body of jurisprudence addressing such issues as when has someone waived their privilege against self-incrimination, when has such a waiver been forced, and what must an employer do to ensure that no waiver has been forced? While some nuances associated with these issues remain subject to debate, as a practical matter the boundaries of the Garrity Rights can be readily defined.

When and How Do the Garrity Rights Apply?

The privilege against self-incrimination does not apply in garden variety employment settings. It applies only when the matters at issue involve criminal misconduct. As a result, employers investigating misconduct short of unlawful behavior can (and usually should) insist that employees answer their questions. Employees who refuse to answer despite an order to do so then face serious discipline or termination for insubordination.

Applying this same set of tools to workplace investigations into criminal matters, however, leads to exactly the type of coerced waiver of the privilege against selfincrimination that Garrity precludes. To preserve that privilege, yet still force an employee to answer questions under threat of discipline for refusing to answer, the employee must be provided immunity from the use of any forced statements (or resulting evidence) in a subsequent criminal prosecution. Courts have used these principles to create a drill supervisors should follow whenever an investigation touches on criminal behavior:

  • Direct the employee to answer questions and explain that refusing to do so will be considered insubordination which will lead to discipline, potentially including termination.
  • Ask the employee questions specifically, directly and narrowly related to the employee's duties or fitness to perform those duties; and
  • Advise the employee that his or her answers will not be used against him or her in a subsequent criminal prosecution.

If, having followed this drill, an employee refuses to respond to questions, he or she can be terminated (or otherwise disciplined) for insubordination. Of course, statements made by an employee who complies with an order to answer questions are fair game in supporting a discipline case against the employee.

The Scope of Immunity

The privilege against self-incrimination is just that: the choice to refrain from saying something that will be used to obtain a criminal conviction. The privilege does not protect someone from prosecution based on other evidence, and for that reason the Garrity Rights provide only "use," as opposed to "transactional," immunity to an employee. Use immunity only protects an individual from prosecution because of the evidence he or she divulged; the broader transactional immunity protects an individual from prosecution entirely.

Courts have reached different conclusions over whether use immunity under Garrity is "self-executing" or whether employers must affirmatively provide it to an employee. In either case, managers wading into an investigation into potentially criminal matters should consult with the prosecutor first. The prosecutor is the only person in a position to affirmatively deliver immunity, so promising it without signoff by the prosecutor is at least risky, and may lead to subsequent wrangling over such issues as whether interview notes can be subpoenaed by the prosecutor in a subsequent criminal case. There are also a number of strategic considerations a prosecutor will want to weigh in conducting a criminal investigation, and the extent to which immunity is a tool in that investigation is a decision the prosecutor should help make. Finally, consulting the prosecutor may reveal that a criminal investigation is nearly complete, and that a brief delay in an internal investigation will permit the employer to rely on a criminal investigation as part of its internal review.

Conducting an Investigation Without Forcing the Employee to Answer Questions

The fact that an employer can provide use immunity to an employee, and thereby force the employee to answer questions about unlawful misconduct, does not mean that the employer must do so. While certainly a less preferred approach, and probably one to be used only when an employer cannot work out a grant of immunity with the prosecutor, Garrity permits an employer to ask employees questions about unlawful misconduct related to their work provided that it does not order the employee to respond to the questions. To avoid creating the misimpression in the employee's (and possibly an arbitrator's) mind that the employee is being compelled to answer, an employer conducting an investigation in this manner should explain to the employee at the start of the investigation that he or she is free to refuse to answer questions, and that any answers given may be used in a subsequent prosecution. The employer should also explain that, at the end of the investigation the employer is going to decide whether there is cause for discipline based on all of the information received, including any information the employee chooses to offer in response to questions.

Keep in mind that the employer always bears the burden of proof in a case challenging whether there is cause for discipline. Therefore, where an employee has been given the option to respond to questions but not forced to do so, the employer should proceed with discipline only if the other available evidence provides cause to discipline the employee. Put differently, discipline should follow where there is persuasive evidence of misconduct that the employee chose not to rebut; discipline based on an employee's refusal to rebut allegations that are not otherwise proven will be very difficult to sustain.

Get Help

Fortunately, situations implicating an employee's Garrity Rights come along rarely. For that reason alone, supervisors would be well advised to seek help from human resource and legal advisors when such a situation arises. Beyond that, and as mentioned above, navigating through an investigation into potentially criminal matters without consulting the authorities responsible for prosecuting those crimes is a bad idea. A coordinated approach between a law enforcement investigation and the employer's internal investigation will result in better fact finding and limit the prospect of a flawed criminal or discipline case.

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Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More.

Janice Corbin is a partner with Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of human resources experience with the Seattle Police Department and the International Harvester Truck Company and has worked in the law enforcement field for over 22 years. More.

Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More.

Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More.

*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research and Services Center.

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