Recent Case Analyzes the Standards for Disciplining Employees Under Garrity

On May 27, 2007, the First Circuit Court of Appeals issued a decision analyzing the circumstances under which employees
can be disciplined for exercising their Fifth Amendment right to refuse to provide information that may incriminate them. 

The case arose from the termination of an employee of the Veterans Administration for refusing to answer questions in
an interview. Importantly, the employee was represented by counsel in the investigatory process.  The Court issued a
divided opinion, with two justices ruling against the employee (the majority), and one ruling for the employee (the dissent). 
Fortunately, while both opinions examined the law in detail, the majority’s ruling against the employee avoided adopting
any broad rule and it should not generally be harmful to officers.

Both opinions reviewed the two key issues arising from Garrity.  As the dissent explained:

Garrity and its progeny address two separate questions. The first ("the immunity question") is whether a government
employee's statements to his employer are in fact protected from use in subsequent criminal prosecutions. The majority
is correct that an employee's statements are protected by use immunity as soon as his employer requires him to speak
 under threat of losing his job.

The second question ("the discipline question"), which Sher's appeal does implicate, is whether a government employee
can be fired or otherwise disciplined for maintaining his silence in the face of his employer's questions.

Both the majority and the dissent agreed that the employee’s statements would have been protected from use in a criminal
trial because the employee was clearly threatened with discipline.

However, the court split over the standard for determining under what circumstances an employee could be disciplined
for refusing to answer questions.  Both sides reviewed cases from other jurisdictions on the issue, and three potential
standards emerged.

 1.  Whether an employee has an obligation to answer questions as soon as immunity attaches, regardless of whether the
      employee is informed of the immunity or his rights under Garrity.  This standard is the most unfavorable for officers, and
      was not adopted by either the majority or the dissent.
 

2.  The dissent’s question “of whether discipline is permitted where the employee remains silent because he has an
     objectively reasonable fear that his answers could be used against him in a later prosecution.”  The majority seemed
     to apply this rule in a very limited manner, finding that the employee should not have feared prosecution because he was
     represented by counsel.
 

3.  Whether the government has an obligation to inform the employee of his rights and obligations under Garrity. 
     This “notice” issue was the major focus of the discussion.

 The majority summarized the notice issue:

The question of whether an employee has adequate notice of his immunity under Garrity to justify a failure to cooperate charge
arises because the consequences of Garrity immunity are not self-evident.

Thus, to provide adequate notice of immunity under Garrity, a government employer might have to explain two concepts.
First, the employer might have to explain that the threat of an adverse employment action for a failure to answer questions
means, as a matter of Fifth Amendment law, that the employee's statements and their fruits may not be used in subsequent
criminal proceedings. We refer to this concept as the "application of Garrity immunity." Second, the employer might have to
explain that the employee, now afforded the self-incrimination protection of the Fifth Amendment by operation of law, may be
subject to adverse employment action for remaining silent. We refer to this concept as the "consequences of Garrity immunity."

Both sides reviewed the case law and found that other jurisdictions had split on the issue of whether notice was required in
order for discipline to be imposed.  The dissent explained:
 

Given the complexity of this area of the law, it is not surprising that the circuits are split as to whether a government employer
is required to advise an employee of his rights and obligations before he can be disciplined for maintaining his silence.
As I read the cases, three circuits--the Fifth, Eighth, and Eleventh--have arguably held that the government employer does
not have a disclosure obligation.  However, even among these circuits, the answer at least in the Fifth and Eleventh circuits
is not wholly clear.

In contrast, three circuits--the Second, Seventh, and the Federal Circuit -- have concluded that the government has a disclosure
obligation.  In addition, the Tenth Circuit has suggested the same result in dicta.

In this case, the majority avoided deciding whether the employer had to give the employee the Garrity notice.  Instead, the
majority ruled that since the employee was represented by counsel, the employee could be charged with having sufficient
notice.  Under this rationale, a represented employee may have fewer rights than an unrepresented employee.  However,
this may provide a somewhat warped argument for allowing officers to have counsel (hey if our officers have access to
counsel, the Department does not have to be as careful.)

The dissent argued that disclosure was required,

I would adopt the latter rule--that the government employer has a disclosure obligation--because it fulfills the inherently protective
nature of the Supreme Court's decisions in Garrity and its progeny. While government employees may understand that they have
a Fifth Amendment right to remain silent, they may not understand the complex exceptions to that rule under Garrity. Thus, in my
opinion, the rule adopted by the majority leaves government employees vulnerable to discipline when they believe they are simply
exercising a basic constitutional right.

This requirement that there must be disclosure prior to discipline is clearly the proper one under Garrity and its progeny.  Many
Departments already provide such disclosure through the use of Garrity statements, while others do not or only provide the notice
sporadically.  However, since not all jurisdictions follow this rule, officers must be clear on the rules in their jurisdiction.