By Karen Sutherland
Allegations of police misconduct and questions about police department internal investigations have been in the news lately. Most people are unfamiliar with one important aspect of such internal investigations, which is an accused police officer's "Garrity rights."
Like Miranda rights, these rights are named after the U.S. Supreme Court case in which they were first developed. Garrity rights are important because they affect the timing and scope of disciplinary investigations.
In Garrity v. New Jersey,1 police officers accused of fixing traffic tickets were advised that anything they might say could be used against them in a criminal proceeding, that they had the privilege to refuse to answer if their answer would tend to incriminate them and that if they refused to answer, they would be subject to removal from office. They answered, some of their answers were admitted into evidence in a subsequent criminal trial over their objections and they were convicted.
In a 5-4 decision, the convictions were reversed. The Supreme Court held that the choice between self-incrimination or job forfeiture was tantamount to coercion, thereby rendering their statements involuntary.2 Garrity has been applied by the Washington courts through the Due Process Clause of the Fourteenth Amendment.3
Garrity did not hold that a police officer cannot be discharged for refusal to testify in disciplinary proceedings as to his or her conduct as a police officer.4 In fact, the Supreme Court upheld a policy whereby a public employee could be fired for refusing to answer questions that might incriminate him if he waived immunity from prosecution.5 In the Gardner case, the Supreme Court held that the requirement of a waiver of immunity vitiated the dismissal.6
Though it tends to arise in the context of police officers, Garrity also applies to other public employees who are investigated concerning corruption or other workplace misconduct.7 The reasoning behind these cases was set forth as follows:
Petitioners as public employees are entitled, like all other persons, to the benefit of the Constitution, including the privilege against self-incrimination. At the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.8
As a result of the cases cited above, when a public employer or its agent (e.g., an outside investigator) conducts an investigation into workplace misconduct that could involve criminal liability, the public employer needs to make a decision - force the employee to testify, in which case the employee will be immune from criminal prosecution, or allow the employee to decline to testify and avoid self-incrimination. In some cases, the public employer may wait to see if criminal charges will be pursued before conducting a disciplinary investigation and/or gather information about the alleged misconduct from other witnesses to determine if criminal charges are likely, before interviewing the alleged wrongdoer. Sometimes, this process can be frustrating to com-plainants because they do not understand why the accused employee is not immediately compelled to participate in an interview.
Employers may address Garrity and its progeny through policies such as the following:
When a member is interviewed as part of an official administrative investigation of the Pullman Police Department, that member will be asked questions specifically directed and narrowly related to the performance of the member's official duties or fitness for office. The members are entitled to all rights and privileges guaranteed by the laws and Constitution of this State and the Constitution of the United States including the right not to be compelled to incriminate themselves. If a member is ordered to answer questions after being advised of their "Garrity rights" and the member refuses to testify or answer questions relating to the performance of his or her official duties or fitness for duties, the member will be subject to departmental charges which could result in dismissal from the Pullman Police Department. If the member does answer, neither statements nor any information or evidence that is gained by reason of such statements, can be used against the member in any subsequent criminal proceeding.
However those statements may be used against the member in any subsequent departmental charges.9
Because of the importance of an employee's constitutional rights and the serious possible implications of immunity, attorneys who practice law involving public sector employees are well advised to learn about Garrity and its implications before providing legal assistance regarding a disciplinary investigation. n
Karen Sutherland is the chair of the Employment and Labor Law Practice Group of Ogden Murphy Wallace, P.L.L.C. and chair of the Bar Bulletin Committee. Her practice includes conducting workplace investigations in the public and private sector and for nonprofits. This article is a brief outline of a complex subject, and is not a substitute for legal advice. If you wish to contact Sutherland, she can be reached at 206-447-7000 or ksutherland@omwlaw.com.
1 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
2 Seattle Police Officers' Guild v. City of Seattle, 80 Wn.2d 307, 309, 494 P.2d 485 (1972).
3 Seattle Police Officers' Guild v. City of Seattle, 80 Wn.2d 307, 309, 494 P.2d 485 (1972).
4 E.g., Spevack v. Klein, 385 U.S. 511, 519, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), decided the same day as Garrity, (Justice Fortas, concurring); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968).
5 Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); cited in Seattle Police Officers' Guild, supra.
6 Id.
7 E.g., Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), decided the same day as Gardner, supra.
8 392 U.S. at 284, quoting Gardner, supra; other citations omitted.
9 Pullman Police Officers' Guild v. City of Pullman, 2003 WL 21419640 (Wash. Pub. Emp. Rel. Com.) at *10.
