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
Investigating Unlawful Activity:
What You Need to Know About the Garrity Rule
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
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
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
- Direct the employee to answer questions and explain that refusing to do so will be
considered insubordination which will lead to discipline, potentially including
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.
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.
|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.
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.
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.