Academic journal article Labor Law Journal

Between the Rock and the Whirlpool: Compelled Statements by Public Employees

Academic journal article Labor Law Journal

Between the Rock and the Whirlpool: Compelled Statements by Public Employees

Article excerpt

I. Introduction

In March 1991, the New York Times reported that during the investigation of Los Angeles police officers involved in the beating of Rodney King, more than two dozen investigatory interviews with officers had been abruptly discontinued. The article, entitled "Officers' Rights Hinder FBI Inquiry into Beating," noted that two years earlier, police chief Daryl Gates had issued a directive ordering officers to cooperate in investigatory interviews, even at the risk of incriminating themselves. The penalty for refusing to do so, Gates had said, would be "disciplinary action up to, and including, termination."1

Rather than compel cooperation pursuant to Gates' directive, the FBI chose to discontinue the interviews in the Rodney King case. Why? The officers' "Garrity Rights" would have rendered their statements unusable against them in a prosecution.

The Garrity Rights doctrine protects public employees from being compelled to incriminate themselves in investigatory interviews with their employers. The Fifth Amendment to the United States Constitution prohibits the government from compelling a person to incriminate themselves, and public workers are employees of the government itself; therefore they are protected from being compelled by their employer to incriminate themselves in an investigatory interview.

Public employees face intense scrutiny from their superiors, legislators, and the public, resulting in a constant flow of complaints and investigations. As a result of this continuous and intense scrutiny, Garrity Rights have become a critical part of public sector labor relations, particularly in law enforcement. These rights are "unquestionably among the most important principles in public personnel administration,"2 and "a cornerstone of police labor relations,"3 as well as "something of a Holy Grail to police officers."4

These rights are derived from the 1967 United States Supreme Court decision, Garrity v. New Jersey, and a series of subsequent related cases. Federal and state courts have repeatedly re-examined this bundle of protections, and in some key aspects the result has been confusion and conflicting interpretation. This article will address one of the most significant problem areas - the nature and definition of "compulsion" under Garrity Rights. If a public employee cannot legally be compelled to incriminate themselves by their employer, then what constitutes compulsion?

The key to defining compulsion revolves primarily around one question: what is the penalty for refusing to answer questions? In general, the courts have found that if a public employer threatens an employee with severe administra- tive sanctions - usually discipline - for refusal to answer questions, then the employees' statements are considered compelled and therefore unusable against the employee in any future criminal proceeding. In the LAPD case, had the FBI proceeded with question- ing, the officers' statements would have been considered compelled by Chief Gates' threat of termination. However, the courts have varied in regard to the level of penalty required to cause compulsion, and have also been incon- sistent about the level of objective awareness the employee must have regarding the potential penalty. Must the employee be explicitly told they will be fired for noncooperation, or is an implied threat sufficient? Can an employee have a legitimate subjective belief that they face discipline for non-cooperation, or must the words actually come from the lips of management? The answers vary.

Whether from the standpoint of the public employee or the public manager, the implications of widespread ignorance, confusion, or misinformation are significant. Most public employees have little or no understanding of their Garrity Rights. Organized employees may have some awareness as a result of educational efforts by their unions. However, many of the public employee unions themselves have inaccurate or incomplete understandings of Garrity Rights. …

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