If you are a public employee, meaning the government is your employer, you are afforded certain rights for that very reason. Garrity is one of the most important of those rights if you are ever questioned by your employer regarding criminal conduct.
Many people, however, tend to misunderstand what Garrity is and how to exercise those rights. All workers should know their rights so they can be protected. Keep reading to get many of your Garrity questions answered.
In This Article:
- The Story of Garrity v. New Jersey
- How Does Garrity Protect Public Employees?
- Compelled vs. Voluntary
- When to Contact a Union Representative
- Should You Refuse To Answer Your Employer’s Questions?
- Can an Employment Lawyer Help?
The Story of Garrity v. New Jersey
Garrity was established by the 1967 U.S. Supreme Court case, Garrity v. New Jersey, and addressed both the Fifth and Fourteenth Amendments. When police chief Edward Garrity and five other employees were questioned about allegations of tickets being “fixed,” they were told that if they refused to answer questions, they would be terminated.
Although the investigators warned them that what they say may be used against them in a criminal trial and that they could refuse to answer questions to avoid self-incrimination, Garrity and the others still talked for fear of losing their jobs. Of course, their statements were used against them and they were convicted of their crimes.
In Garrity v New Jersey, the U.S. Supreme Court ruled that the employees’ Fifth Amendment rights were violated because they were compelled by the government (their employer) to make incriminating statements under threat of termination.
How Does Garrity Protect Public Employees?
Garrity protects public employees such as law enforcement officers, first responders, or city workers from prosecution for any statements made during an internal investigation that may be related to criminal conduct. It’s important to note that Garrity only applies to public employees. This is because their employer is the government, and the government cannot compel a person to testify against themselves per the Fifth Amendment. Thanks to the Fourteenth Amendment, that includes not only federal employees but also state, county, and municipal employees.
It’s also important to note that Garrity does not mean that public employees have the right to remain silent when compelled or forced to answer questions from their employer regarding criminal activity. It only ensures that nothing you say will be used against you in a court of law. You can still face disciplinary action including termination for not answering your employer when compelled to do so.
Compelled vs. Voluntary
Let’s take a moment to discuss the difference between being compelled to make a statement versus being asked to make a voluntary statement. This is important because Garrity only applies when your employer makes it clear that you will face disciplinary action if you refuse to answer. Here are a few scenarios to help you understand the difference.
Scenario 1
A Cook County police officer is asked to answer questions regarding allegations of PPP fraud during the COVID-19 pandemic. He is told that participating in the administrative interview is completely voluntary and refusing to participate will not result in disciplinary action.
However, he is also told that his answers may be used against him in a criminal proceeding. During the interview, he admits to committing PPP fraud and is therefore terminated for violating the department’s policy. His statements are also handed over to be used as evidence to prosecute him.
Since he was not compelled to make the statements and was not offered immunity, Garrity did not apply and his voluntary statements could be used to prosecute.
Scenario 2
A Cook County police officer is asked to answer questions regarding allegations of PPP fraud during the COVID-19 pandemic. His supervisor orders him to participate in the administrative interview and warns him that failure to do so would result in disciplinary action.
During the interview, the officer admits to committing PPP fraud and is immediately terminated for violating the department’s policy. However, none of the statements the officer made during the internal interview can be used to prosecute him in a criminal proceeding.
Since he was compelled to make the statements, Garrity protected his statements from being used against him.
When to Contact Your Union Representative
If your employer compels you to answer their questions regarding criminal activity, they will likely issue a Garrity warning. This is usually a document stating that what you say during the interview will not be used against you in a criminal proceeding. Garrity only applies during an administrative or internal investigation where there is criminal potential.
Whenever you are questioned by a supervisor — both administratively or casually — it may be a good time to request a union representative if you believe you will face disciplinary action if you refuse to answer. Even if you are a non-dues paying union member, you may still be entitled to a representative.
But you should know that your employer may not be required to inform you of your right to representation depending on the collective bargaining agreement. So don’t wait until they present it as an option as that moment may never come.
Should You Refuse To Answer Questions If Ordered By Your Employer To Do So?
Here’s the bottom line — refusing to answer your employer’s questions when ordered to do so is a career-ending decision. For example, if you are a law enforcement officer and you are ordered to participate in an OPR interview, you must answer their questions regarding criminal conduct.
Garrity is automatically invoked as soon as you are ordered to answer and your statements are immunized from criminal prosecution. So refusing to answer questions can have drastic career consequences, and you need to be aware of this before making that decision.
Only in extreme circumstances should you ever refuse to answer your employer. Disparti Law Group’s head employment lawyer Cass T. Casper gives some insight on these interviews:
“I would never advise an officer to refuse to answer questions once ordered to do so, except in the most extreme circumstances. A hypothetical example where you might refuse to answer questions despite being ordered to do so is where you committed a serious felony involving physical violence or theft, you did it, there is definitive proof you did it, and you have no defense whatsoever to it.
But in that hypothetical, the officer is almost certainly going to be fired and a union representative or lawyer should probably be talking to such officer about how to limit the damage, including resignation. That is an extremely rare case. For all other situations, even if there is criminal conduct involved, I would never advise an officer to refuse to answer questions once ordered to do so. That is why Garrity exists, to provide immunity for your statements made under duress to your employer.”
How To Approach an OPR Interview
Before you go into an OPR interview, it’s best to be prepared, open, and transparent. Go in ready to provide evidence in your defense and gather supporting documents before your interview.
Even if technical misconduct is involved, own up to any wrongdoing and show remorse.
“Where officers get themselves into trouble during these interviews is coming off like they are hiding information, arguing with the investigators, lying, or not having the facts. In general,” Casper says, “treat the interview like a job interview and go in absolutely maximally prepared and ready to answer all questions. If anyone tells you not to answer questions, tell the investigator you want to seek a second opinion and ask to reschedule. I have never seen them reject such a request.”
When Can an Employment Lawyer Help?
Many public employees are dedicated, hard-working, valuable members of our community. Their jobs can be incredibly complicated, and having the government as their employer only adds to these complications. If you are a public service employee and you believe your rights were violated during an internal interview, contacting your union rep is usually a good first step to take.
However, for more complex matters, it may be best to contact an employment lawyer. An employment lawyer can tackle issues such as wrongful termination, workplace retaliation, employment discrimination, and other workplace conflicts that may come up during your interview.
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The experienced attorneys at Disparti Law Group are experts on the nuances of Garrity and other rights you have as a government employee and will fight tooth and nail for what is right.
For a FREE consult, contact us today risk-free at (312) 600-6000 and find out why thousands say… Larry wins!
