Abusive or Coercive
Interviews/Investigations
Bargaining Issues (related to interviews)
Confidentiality Requirements and Assurances
Criminal Investigations and Immunity
Discovery Issues (right to documents etc.)
Evidentiary Issues
Exclusionary Rule (application of)
Garrity Warnings
Insubordination - Refusal to Answer
Legal Counsel - Right to
Miranda (application of)
Polygraphed Interviews
Privileged Communications
Subject Matter (improper, irrelevant etc.)
Time of Interview
Untruthfulness
Video and Audio Taping
Weingarten Rights
Cross References (to other Topics)
ABUSIVE
OR COERCIVE INTERVIEWS/INVESTIGATIONS
Arbitrator
concludes that a supervisor's conduct in brusquely questioning a foreman
about inmates under his control did not violate the bargaining agreement
or Federal Bureau of Prisons standards of conduct. It did not rise to level
of "workplace violence." Federal Correctional Institution, El
Reno, Okla. and AFGE L-171, 119 LA (BNA) 129, FMCS Case No. 02/12027 (Woolf,
2003). {N/R}
Seventh Circuit rejects the Fourth Amendment
claims of three officers who were ordered to be interviewed by I-A personnel;
they received overtime and were not disarmed or relieved of their IDs.
A fourth officer pled a valid claim; although only partnered with another
officer who was under suspicion, he was grabbed off the street and escorted
to headquarters. Driebel v. City of Milwaukee, #01-1689, 298 F.3d 622,
2002 U.S. App. Lexis 15304 (7th Cir. 2002). [2002 Oct. FP]
Federal court enjoins an internal investigation
interview of an officer who is suing superiors and the city for gender
bias and retaliation. The proposed questioning was viewed as retaliatory
and likely to interfere with the progress of the discrimination lawsuit.
Karmel v. City of N.Y., #00 Civ. 9063, 200 F.Supp.2d 361, 2002 U.S. Dist.
Lexis 8056, 88 FEP Cases (BNA) 1194 (S.D.N.Y. 2002), relying on the reasoning
in Alvarez v. City of N.Y., #98 Civ. 7227, 31 F.Supp.2d 334, 1998 U.S.
Dist. Lexis 19328 (S.D.N.Y. 2002). [2002 FP Sep]
California appeals court upholds and tightens
an injunction against management attempts to deny the constitutional and
statutory rights of corrections officers being interviewed as witnesses
and targets in a criminal investigation.Management cannot recast an internal
inquiry as an independent or outside investigation when it enlists that
investigation. Calif. Correctional POA v. St. of Calif., #A085064, 82 Cal.App.4th
294, 2000 Cal. App. Lexis 566, 98 Cal.Rptr.2d 302. [2000 FP 131-3]
Police dept's overly intrusive internal investigation
of a sexual harassment complainant's personal life may lead to liability.
Sarro v. City of Sacramento, 1999 U.S. Dist. Lexis 19589 (E.D. Cal. 1999).
Appellate court authorizes a disability award
for an employee who was threatened with jail unless she confessed to embezzlement.
Miller v. WCAB, 724 A.2d 971, 1999 Pa. Commw. Lexis 39. [1999 FP 116-7]
State employee who was videotaped while looking
in a coworker's desk and was later questioned by the state police is entitled
to worker's comp. benefits for stress. Prettyman v. State of N.J., 298
N.J. Super. 580, 689 A.2d 1365 (A.D. 1997). [1997 FP 163-4]
Federal court declines to dismiss a damage
suit against investigators who allegedly conducted an abusive interrogation
of a city employee. Angara v. City of Chicago, 897 F.Supp. 355 (N.D.Ill.
1995). [1996 FP 69-70]
Coercive and intimidating employment interrogation
did not give rise to a suit for the infliction of emotional distress. Publication
of unfounded allegations of theft leading to dismissal would support a
damage claim for defamation, including publicity wholly within the employing
entity. Etzel v. The Musicland Group, 8 IER Cases (BNA) 483 (D.Kan. 1993).
[1993 FP 69-70]
Intrusive, lengthy, coercive-styled interrogation
of subordinates required reinstatement and back pay. Oddsen v. Board of
Fire and Police Cmsrs. of Milwaukee, 321 N.W.2d 161 (Wis. 1982).
Police officer could seek injunctive relief
against internal affairs investigation and disciplinary interrogation when
he sufficiently pleaded political harassment and bad faith. Buege v. Lee,
373 N.E.2d 427 (Ill.App. 1978).
Requiring employee to submit to on-job interview
concerning misconduct complaint is not a "false imprisonment'; $7,000
jury verdict reversed. Faniel v. Chesapeake & Pot. Tel. Co. of Md.
404 A.2d 147 (D.C. App. 1979).
DISCIPLINARY INTERVIEWS:
BARGAINING ISSUES
(RELATED TO INTERVIEWS)
Federal Labor Relations Authority finds
that federal law enforcement agencies may videotape its internal affairs
interviews, but must bargain over the impact and implementation of the
process. Customs Service and NTEU-143/#168, #DA-CA-60047,-48, 2000 FLRA
Lexis 75, 56 FLRA No. 56. [2000 FP 147-8]
Police union's demand that an officer cannot
be compelled to testify at a departmental hearing concerning the officer's
conduct was a nonmandatory subject of bargaining. City of New Rochelle
and Police Assn. of N.R., N.Y. PERB #U-10093 (ALJ decis.), 21 NYPER (LRP)
¶ 4592, 1988 NYPER (LRP) Lexis 2235. {N/R}
DISCIPLINARY INTERVIEWS:
CONFIDENTIALITY
REQUIREMENTS AND ASSURANCES
Citing the First Amendment,
the Eleventh Circuit invalidates a Florida law that prohibited participants
in a police internal investigation from disclosing any information. Cooper
v. Dillon, #04-11150, 2005 U.S. App. Lexis 4703, 2005 WL 653313 (11th Cir.
March 22, 2005). [2005 FP May]
Milwaukee police rule prohibiting
officers from discussing matters under internal investigation challenged.Appellate
court remands for findings.Milwaukee Police Assn. v. Jones, #98-2904, 192
F.3d 742, 1999 U.S. App. Lexis 23357, 15 IER Cases (BNA) 961. [2000 FP
4-5]
I-A "gag rule" invalidated: NLRB
orders an employer not to interfere with discussions among employees concerning
their grievances and complaints. The gag rule violated 29 U.S. Code
158(a)(1). Lockheed Martin and Fiala, #27-CA-14557 et al., 2000 NLRB Lexis
6, 330 NLRB No. 66. [2000 FP 61-2]
Arbitrator reduces the penalty, but sustains
the punishment of a corrections officer who disobeyed a policy against
discussing a pending internal investigation with one's coworkers. Minn.
Dept. of Corr. and AFSCME C-6 (Henderson), RMS #96-PA-2070 (Imes, 1996).
[1997 FP 132-3]
In a criminal prosecution [of an ex-Presidential
Aide, USMC Lt.Col. Oliver North], immunized testimony could not be used
to refresh the recollections of a witness or to prepare a witness.U.S.
v. North, #89-3118, 910 F.2d 843; 1990 U.S. App. Lexis 12106 (amended 11-22-1990;
modified 11-27-1990)(D.C. Cir.). {N/R} Note: The reasoning of U.S.
v. North was rejected by the 9th Cir. in U.S. v. Koon, 34 F.3d 1416 (9th
Cir. 1994). [1995 FP 53]
Federal court dismisses union suit which
tried to block internal affairs questioning because IA files lose their
confidential status when released on court order. Toledo Police Assn. v.
City of Toledo, 716 F.Supp. 300 (N.D. Ohio 1988).
Secretly taping an internal affairs conversation
not conduct unbecoming. City of Birmingham v. Jefferson Co. Personnel Bd.,
468 So.2d 181 (Ala. App. 1985).
Employee could not be disciplined for secretly
tape recording conversation with chief concerning union activities. McCallum
v. Hinson, 489 F.Supp. 627 (M.D. Ga. 1980).
DISCIPLINARY INTERVIEWS:
CRIMINAL
INVESTIGATIONS AND IMMUNITY
A
woman claimed that she was gang raped in a Bronx fire station that firefighters
call the "Animal House." Although criminal charges were not brought,
a civil court in Manhattan affirms the termination of a firefighter who,
on the advice of his lawyer, refused to cooperate with internal investigators
after being offered limited immunity. Waugh v. N.Y.C. Fire Dept., #103546/2005
(Sup. Ct. N.Y. Co., NY 2005). [2006 FP Feb]
Sixth Circuit finds that police officers
were not entitled to bring a damage suit against the chief of police, even
if the I-A interrogation of the officers was partially criminal in nature,
and Miranda rights were not observed. Lingler v. Fechko, #01-3554, 312
F.3d 237, 2002 U.S. App. Lexis 25131, 2002 FED App. 0420P (6th Cir. 2002).
[2003 FP Mar]
Federal appeals court allows an officer's
testimony in a prior civil lawsuit to be used against her in a criminal
prosecution. Her failure to claim the 5th Amendment privilege at the civil
trial was critical. U.S. v. Vangates, #01-12967, 287 F.3d 1315, 2002 U.S.
App. Lexis 6433 (11th Cir. 2002). [2002 FP Nov]
Incriminating statements given by a law enforcement
officer to his superiors, after he had received the Miranda warnings, were
admissible in his criminal prosecution. At no time did his superiors advise
him that he had to answer questions as a condition of continued employment.
State v. Koverman, #01SA210, 38 P.3d 85, 2002 Colo. Lexis 58 (2002). [2002
FP Aug]
Appellate court overturns an arbitration
award that gave state troopers the same rights when interviewed as a criminal
suspect they enjoy when interviewed for disciplinary purposes.Even if the
arbitrator's interpretation of the contract was correct, "an employer
cannot by contract give its employees procedural rights and benefits regarding
criminal investigations." Illinois State Police v. FOP L-41, #4-00-0774,
323 Ill. App.3d 322, 751 N.E.2d 1261, 2001 Ill.App. Lexis 505. [2001 FP
116-7]
Federal appeals court holds that a member
of a bargaining unit is entitled to a union rep. during an interview, even
if management characterizes the investigation as "criminal" rather
than administrative. U.S. Dept. of Justice v. FLRA, #00-1433, 2001 U.S.
App. Lexis 21573 (D.C.Cir.). [2001 FP 163-4]
Federal impasses panel mandates a union-proposed,
warning in a Treasury Dept. contract dispute. It would apply to inquiries
where criminal wrongdoing is suspected. Treasury, Bur. of Engrv. v. C-201
NTEU, #99 FSIP 96, 1999 FSIP Lexis 41. [2000 FP 52-3]
California appeals court upholds and tightens
an injunction against management attempts to deny the constitutional and
statutory rights of corrections officers being interviewed as witnesses
and targets in a criminal investigation. Management cannot recast an internal
inquiry as an independent or outside investigation when it enlists that
investigation. Calif. Correctional POA v. St. of Calif., #A085064, 82 Cal.App.4th
294, 2000 Cal. App. Lexis 566, 98 Cal.Rptr.2d 302. [2000 FP 131-3]
Federal appeals court upholds compulsory
questioning of police officers, demanded by their superiors as part of
an administrative investigation of potentially criminal conduct. Wiley
v. Mayor of Baltimore, 48 F.3d 773 (4th Cir. 1995); cert.den. 64 LW 3241.
[1995 FP 91]
Ninth Circuit declines to follow the Oliver
North holding {U.S. v. North, 910 F.2d 843(D.C. Cir.)} that witnesses may
be excluded in a criminal trial because (1) they have read an officer's
statement to internal affairs investigators and (2) were influenced, directly
or indirectly, by that statement. U.S. v. Koon, 34 F.3d 1416 (9th Cir.
1994). [1995 FP 53]
Fact that police officer had been ordered
to give a statement to internal affairs investigators did not immunize
him from a parallel criminal prosecution. Officer was entitled to use immunity,
not transactional immunity. State v. Beugli, 126 Or.App. 290, 868 P.2d
766 (1994). {N/R}
California appellate court holds that a person
may not assert his Fifth Amendment right to remain silent in a civil proceeding,
without showing a possibility of criminal prosecution. The self incrimination
privilege is not applicable to a person's possible civil liability. Blackburn
v. Superior Court (Kelso), 27 Cal.Rptr.2d 204 (1993). {N/R}
Transmittal of officer's internal affairs
statements, immunized under Garrity, to the prosecutor, who then used the
statements to bring charges against him, did not violate his civil rights.
Gwillim v. City of San Jose, 929 F.2d 465 (9th Cir. 1991). [1992 FP 53-4]
Massachusetts Supreme Court holds that public
employees who are interrogated in a disciplinary investigation are entitled
to full and final immunity from prosecution; other states limit the scope
of any constitutionally-protected immunity, and ban the use of employer-compelled
statements in criminal proceedings. Carney v. City of Springfield, 403
Mass. 604, 532 N.E.2d 631; City of Springfield v. Civil Serv. Cmsn., 403
Mass. 612, 532 N.E.2d 636; Doe v. City of Springfield, 403 Mass. 1010,
532 N.E.2d 639 (Mass. 1988).
Promise to employee that his statements to
internal affairs and resignation will avoid criminal charges is not binding
on the prosecutor; employee's conviction does not violate due process.
People v. Early, 158 Ill.App.3d 232, 511 N.E.2d 847 (1987).
Appeals court rejects claim that dept. must
grant transactional immunity to employee questioned about criminal conduct.
Shales v. Leach, 500 N.Y.S.2d 890 (A.D. 1986).
Public safety employees entitled to take
Fifth amendment at grand jury proceedings. Mountain v. City of Schenectady,
474 N.Y.S.2d 612 (A.D. 1984).
Immunity from prosecution does not bar use
of confession indepartmental disciplinary trial. City of Hollywood v. Washington,
384 So.2d 1315 (Fla. App. 1980).
Employee must answer job-related questions
or forfeit employment; no Fifth Amendment privileges applicable to interrogation,
but answers not admissible in a criminal prosecution. Szmaciarz v. Calif.
St. Personnel Bd., 145 Cal.Rptr. 396 (App. 1978).
U.S. Supreme Court upholds a limited grant
of immunity to witnesses compelled to incriminate themselves (testimonial
immunity); transactional immunity not constitutionally required. Zicarelli
v. State Inves. Cmsn., 406 U.S. 472, 92 S.Ct. 1921 (1972).{N/R} Note:
see U.S. v. North, #89-3118, 910 F.2d 843, 1990 U.S. App. Lexis 12106 (amended
11-22-1990; modif. 11-27-1990)(D.C. Cir.). The reasoning of U.S. v. North
was rejected by the 9th Cir. in U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994)
mentioned above.
See also: Garrity
Warnings and Miranda (sections in this topic)
DISCIPLINARY INTERVIEWS:
DISCOVERY
ISSUES (RIGHT TO DOCUMENTS, ETC.)
California appellate court interprets
PSO bill of rights law to include the right to see statements taken of
employees before answering IAD questions. Pasadena Police Officers Assn.
v. City of Pasadena, 251 Cal.Rptr. 865 (App., 2d Dist. Cal. 1988).
DISCIPLINARY INTERVIEWS:
EVIDENTIARY
ISSUES
Compelled statements are admissible
without proof of "corpus delecti". DiCiacco v. Civil Serv. Cmsn.
of Phila., 389 A.2d 703 (Pa. Cmwlth. 1978).
The discharge of a public employee was not
barred because he relied upon the erroneous advice of counsel. His attorney
erroneously informed him that he had a legal right not to answer certain
questions. Silverio v. Municipal Courtof Boston, 355 Mass. 623, 247 N.E.2d
379, cert. denied, 396 U.S. 878, 90 S.Ct. 151 (1969). {N/R}
DISCIPLINARY INTERVIEWS:
EXCLUSIONARY
RULE (APPLICATION OF)
Failure to provide procedural
rights during disciplinary interrogation should not result in its suppression.
Exclusionary Rule is too drastic a remedy. Williams v. City of Los Ang,,
47 Cal. 3d 195, 252 Cal.Rptr. 817, 763 P.2d 480 (1988).
Contract clause requiring disciplinary interviews
to be recorded must be followed; discipline set aside. Cymbalsky v. Dilworth,
467 N.Y.S.2d 902 (A.D. 1983).
Collective bargaining agreement concerning
employee questioning must be complied with; reinstatement and back pay
ordered for terminated officers in New Mexico. Conwell v. City of Albuquerque,
637 P.2d 567 (N.M. 1981). [1982 (88) FP 6]
DISCIPLINARY INTERVIEWS:
GARRITY
WARNINGS
Note:
This refers to the warnings designed to avoid the problems encountered
in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 1967 U.S.
Lexis 2882, 17 L.Ed.2d562 (1967). See also Gardner v. Broderick, 392 U.S.
273, 88 S.Ct. 1913, 1968 U.S. Lexis 1351 (1968), Uniformed Sanit. Men Assn.
v. Cmsnr. of Sanitation, 392 U.S. 280, 88 S.Ct. 1917 (U.S. 1968) and Lefkowitz
v. Turley, 414 U.S. 70, 94 S.Ct. 316, 1973 U.S. Lexis 132 (1973), -- plus
a discussion of the meaning of Garrity in Kelley v. Johnson, 425 U.S. 238,
96 S.Ct. 1440, 1976 U.S. Lexis 35 (1976).
The employee is
informed that although he (or she) has a right to remain silent and not
incriminate himself, his silence can be deemed insubordination and will
result in administrative discipline; further, any statement he makes under
compulsion of the threat of such discipline cannot be used against him
in a later criminal proceeding.
Colorado Supreme Court
finds that a Garrity Warning used by a sheriff's office was "ambiguous"
and possibly deficient because it advised an employee that a failure to
cooperate in an internal investigation "could" result in disciplinary
action -- rather than would result in her termination. Hopp & Flesch,
LLC v. Backstreet, #04SC697, 2005 Colo. Lexis 1044, 23 IER Cases (BNA)
1263 (2005). [2006 FP Mar]
Federal appeals
court reinstates a civil rights suit filed by an officer against his superiors,
after the prosecutor used his Garrity-protected statements against him
in a subsequent prosecution. McKinley v. City of Mansfield, #03-4258, 2005
U.S. App. Lexis 5875, 2005 FED App. 0170P (6th Cir. 2005); also see, State
v. McKinley, #01CA98, 2002 Ohio 3825, 2002 Ohio App. Lexis 3866, 2002 WL
1732136 (5th App. Dist, 2002). [2005 FP Jun]
Seventh
Circuit reinstates a civil rights suit brought by a city worker who, while
facing criminal prosecution for drug possession, refused to answer questions
at an internal interview. The city had failed to inform him that his answers
would be immunized from use in a criminal case. Franklin v. City of Evanston,
#03-2127, 384 F.3d 838, 2004 U.S. App. Lexis 20311, 94 FEP Cases (BNA)
921 (7th Cir. 2004). [2004 FP Dec]
Maryland appellate court affirms that public
employees must answer questions, if required to do so, that specifically,
directly, and narrowly relate to the performance of their official duties
or their fitness for continued employment. Superiors must give a clear
order (and advice of rights) to interviewed employees. Dept. of Pub. Sfty.
v. Shockley, #2081 S. T. 2000, 790 A.2d 73 (Md.Sp.App. 2002). [2002 FP May]
NC Supreme Court holds that an employer is
not required to warn an employee that his answers to a disciplinary interview
are not admissible in a criminal prosecution. Employee was lawfully terminated
for noncooperation, despite the fact the admonition failed to mention use
immunity. Debnam v. N.C. Dept. of Corr., 334 N.C. 380, 432 S.E.2d 324 (1993).
[1994 FP 85-6]
Appellate court annuls termination of corrections
officer who ceased cooperation with an internal investigation. Interrogators
failed to warn him his responses were immunized from use in a criminal
prosecution. Debnam v. N.C. Dept. of Corr., 421 S.E.2d 389 (N.C.App. 1992).
Reversed! See 432 S.E.2d 324, discussed above. [1993 FP 70-1]
Federal appellate court restates the holding
in Garrity that employees who are compelled to answer their employer's
questions automatically acquire use immunity for their answers. Gilbert
v. Nix, 990 F.2d 1044 (8th Cir. 1993). [1994 FP 39-40]
N.Y. Court clarifies Garrity Warnings:
employees are required to answer narrowly focused questions concerning
the possible misconduct of a fellow employee. Evangelista v. City of Rochester,
141 Misc. 2d 1040, 535 N.Y.2d 928 (1988).
Garrity rule upheld in Texas; reliance
on Harris v. New York misplaced. Accused employee must answer relevant
questions or be fired. Plaster v. City of Houston, 721 S.W.2d 421 (Tex.App.
1986). Note: U.S. Supreme Court held in Mincey v. Arizona, 437 U.S.
385, 98 S.Ct. 2408 (1978) that an "involuntary" statement cannot
be used against a defendant to impeach his in-court testimony. [86 (149)
FP 3]
Officers may take Fifth Amendment in criminal
case where they are merely witnesses; only dept. can give Garrity immunity. Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir. 1986).
Garrity warnings must be given before
disciplining an employee for failure to answer a supervisor's questions.
Lybarger v. City of Los Ang., 40 Cal.3d 822, 710 P.2d 329, 1985 Cal. Lexis
436, 221 Cal.Rptr. 529 (Cal. 1985).
Missouri court upholds Garrity warnings.
Schulte v. Sayad, 667 S.W.2d 26 (Mo.App. 1984).
Trial judge holds that officers may consult
with union reps or their attorney before completing a shooting report;
prior policy continued. Long Beach Police Off. Assn. v. City of Long Beach,
L.A. Daily Jour. (11/10/82); affirmed, 156 Cal.App.3d 996, 203 Cal.Rptr.
494 (1984). Appellate panel concluded that city unilaterally changed a
past practice, and the bargaining agreement (M.O.U.) specifically perpetuates
past practices.
DISCIPLINARY
INTERVIEWS:
INSUBORDINATION - REFUSAL TO ANSWER
Federal
appeals court upholds the termination of a public employee who declined
to answer I-A questions relating to possible criminal conduct. Both the
investigator and her lawyer gave her bad advice to take the Fifth Amendment.
She may have a remedy against her lawyer for malpractice, but is not entitled
to get her job back. Atwell v. Lisle Park Dist., #01-2520, 286 F.3d 987,
2002 U.S. App. Lexis 6775, 18 IER Cases (BNA) 901 (7th Cir. 2002). [2002
FP Aug]
Arbitrator sustains the termination of an
employee, accused of sick leave abuse, who refused to answer her superiors
questions on the advice of her attorney. Reliance on bad legal advice is
no defense. CITGO Refining and CITGO Employees Feder., AAA Case #70-300-00087-00,
115 LA (BNA) 65 (Moore, 2000). [2001 FP 21]
A 2-to-1 federal appeals panel affirms the
termination of an officer who refused to answer duty-related questions
or take a polygraph. Dissenting judge said that management failed to clarify
the role between ongoing criminal and administrative investigations. Hill
v. Johnson, #98-1431EA, 160 F.3d 469, 1998 U.S. App. Lexis 28603, 14 IER
Cases (BNA) 985 (8th Cir.); Reh. den. 1998 U.S. App. Lexis 32016. [1999
FP 37-8]
A police chief did not violate the First
Amendment in suspending a police officer who disobeyed his order to answer
questions pertaining to a "confidential memorandum" regarding
the strategy to obtain the union's agreement to a proposed consolidation
of police with a neighboring town. Heil v. Santoro, 147 F.3d 103, 1998
U.S. App. Lexis 11627, 14 IER Cases (BNA) 30 (2nd Cir. 1998). {N/R}
Firefighters, accused of oral, anal and vaginal
sex with a citizen while on duty, refused to answer questions during an
internal investigation. Appellate court concluded there was insufficient
evidence to affirm their termination for sexual misconduct, but their dismissal
was warranted for their refusal to answer questions pertaining to the incident.
Blunier v. Bd. of Fire & Police Cmsnrs. of Peoria, 545 N.E.2d 1363
(Ill.App. 1989).
Florida appellate court upholds termination
of deputy for refusing to answer job-related questions. Thomas v. Brevard
Co. Sheriff's Office, 456 So.2d 540 (Fla. App. 1984).
Louisiana appellate court affirms dismissal
of public employee who refused to give a statement to employer; Fifth Amendment
no bar to dismissal. Lemoine v. Dept. of Police, 348 So.2d 1281 (La. App.
1977).
DISCIPLINARY
INTERVIEWS:
LEGAL
COUNSEL - RIGHT TO
California
appeals court upholds a compelled disciplinary interview, without the officer's
lawyer present, when counsel was unable to appear for a rescheduled interview.
Upland POA v. City of Upland, #E032607, 111 Cal.App.4th 1294, 4 Cal.Rptr.3d
629, 173 LRRM (BNA) 2367, 2003 Cal. App. Lexis 1407 (Cal. App.4th Dist.
2003). [Dec FP 2003]
New Jersey appeals court affirms reinstatement
of an officer who was fired because he declined to answer questions without
the assistance of his attorney. State Criminal Justice guidelines specifically
afforded him that right. In Matter of William Carroll, #A-1003-99T3, 339
N.J. Super. 429, 772 A.2d 45, 2001 N.J. Super. Lexis 175. [2001 FP 165]
Arbitrator rules that an employer was not
obligated to furnish legal counsel to a police officer accused of excessive
force, during his interview with management. While the contract required
management to furnish employees with legal representation in all "legal
proceedings," the contract excepted "internal university proceedings."
Univ. Mich. and Mich. Assn. of Police, 103 LA (BNA) 401 (Daniel, 1994).
{N/R}
Appellate court upholds right to discipline
an officer who refused to answer a superior's job-related questions without
first consulting with legal counsel. Brougham v. City of Normandy, 812
S.W.2d 919 (Mo.App. 1991). [1992 FP 132-3]
Chief may lawfully require police officers
involved in fatal shootings to write incident reports before they have
consulted with an association attorney. City has strong, compelling interest
in obtaining prompt, accurate and "unvarnished" reports of fatal
shootings for training purposes. Ward v. City of Portland, 857 F.2d 1373
[the opinion which appeared in the paperbound volumes (advance sheets)
was modified and portions were withdrawn] (9th Cir. 9/29/88), reversing
658 F.2d 1272 (9th Cir. 1981). In Ward, the court inadequately addressed
the issue of whether an officer in an agency that recognizes his right
to counsel during an internal investigation would also have that right
before completing a use of force or major incident report. In a prior ruling
the federal court held that officers were not entitled to consult private
legal counsel prior to completion of use-of-firearms reports. Portland
Police Assn. v. City of Portland, Civil #78-808 (D.Ore. 1978). Also see
Watson v. Riverside, 1997 U.S. Dist. Lexis 13797 (discussed above).
In states where employee has right of counsel
during interview, lawyer is entitled to object and consult with client.
Nichols v. Baltimore Police Dept., 455 A.2d 446.
Interrogated department member, suspected
of misconduct, is not entitled to legal counsel at disciplinary interview.
Wilson v. Swing, 463 F.Supp. 555 (M.D. N.C. 1978).
N.Y. courts have split on right to counsel
at a disciplinary interrogation. A trial judge found an officer was deprived
of his right of due process when he was ordered to give a statement at
a time when his attorney was not available. May v. Shaw, 396 N.Y.S.2d 258
(A.D. 1977). In another case, an appellate panel ruled 3-to-2 that there
was no right to an attorney during the interrogation process, even though
a collectively bargained agreement granted that right. Donofrio v. Hastings,
388 N.Y.S.2d 779 (A.D. 1976).
See also: Weingarten
Rights (part of this Topic)
DISCIPLINARY
INTERVIEWS:
MIRANDA
- APPLICATION OF
The failure
to give Miranda warnings did not violate the plaintiff's rights because
she was never charged with a crime. Reyes v. Granados, 879 F.Supp. 711
(S.D.Tex. 1995). [1996 FP 70]
Plaintiff who was repeatedly questioned in
violation of his Miranda rights could sue for damages for a violation of
his Fifth Amendment rights. Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992),
cert. denied 113 S.Ct. 407 (1992). [1996 FP 70]
Massachusetts reaffirms its rule that public
employees must be given transactional immunity before they can be required
to respond to a superior's questions, in cases where the conduct can be
prosecuted under the criminal code. Baglioni v. Chief of Police of Salem,
421 Mass. 229, 656 N.E.2d 1223 (Mass. 1996). [1996 FP 70]
NJ appellate court rules that a disciplinary
interrogation is non-custodial for purposes of Miranda, but an employee
may not be required to waive his Fifth Amendment rights as a condition
of employment. State v. Lacaillade, 266 N.J. Super. 522, 630 A.2d 328 (1993).
[1994 FP 70-1]
Officer's statement to superiors in criminal
inquiry was not coerced but Miranda applies if the interrogation was
custodial. State v. Connor, 861 P.2d 1212 (Idaho 1993). [1994 FP 71]
Officer, who questioned another deputy at
the scene of an officer-involved shooting, was not required to give him
the Miranda warnings. Custody did not arise because shooting officer
had to remain at the scene. Peo. of Colo. v. Probasco, 795 P.2d 1330 (Colo.
1990).
DISCIPLINARY
INTERVIEWS:
PRIVILEGED
COMMUNICATIONS
A police chief did not violate the First
Amendment in suspending a police officer who disobeyed his order to answer
questions pertaining to a confidential memorandum regarding the strategy
to obtain the union's agreement to a proposed consolidation of police with
a neighboring town. Heil v. Santoro, 147 F.3d 103, 1998 U.S. App. Lexis
11627, 14 IER Cases (BNA) 30 (2nd Cir. 1998). {N/R}
The Union Official-Union Member Privilege
does not bar a prosecutor or grand jury from inquiring into conversations
between a union member and his union representative. In re Grand Jury Subpoenas,
995 F.Supp. 332 (E.D.N.Y. 1998). {N/R}
In a civil rights damage suit against police
officers for the use of excessive force, a conversation between an officer
and the union president was not privileged against disclosure. Walker v.
Huie, 142 F.R.D. 497 (D. Utah 1992). {N/R}
It would be an improper employment practice
if the city's Commissioner of Corrections compelled the union president
to answer questions about reports or complaints related to the trouble
at Rikers Island in 1990 if those reports and complaints had been made
to him in his role as Union President by union members. Seelig v. Shepard,
578 N.Y.S.2d 965 (N.Y. Sup. 1991).{N/R}
Police chief did not violate Ohio labor law
by attempting to question a union official regarding his representation
of a police officer in drug testing matter. The questioning of the union
official ceased as soon as the official asserted that his representation
was related to union matters and no union representative was ever ordered
to answer questions or that any action was taken against him for refusing
to do so. State Empl. Rel. Bd. v. Rudolph, #87-ULP-05-0209, 5 Ohio Pub.
Emp. Rptr. (LRP) ¶ 5706, 1988 OPER (LRP) Lexis 2822 (Ohio SERB Hrg.Ofcr.
1988). {N/R}
City engaged in an improper employment practice
when the Police Commissioner ordered a police officer, who was the president
of a police union, to answer questions about his observations on the occasion
of a meeting with one of his union members. City of Newburgh v. Newman,
70 A.D.2d 362 (N.Y. App. 1979). {N/R}
DISCIPLINARY
INTERVIEWS:
SUBJECT
MATTER (IMPROPER, IRRELEVANT, ETC.)
NLRB holds
that an employer improperly questioned an employee about distributing fliers
on coworker desks after-hours, protesting the layoff of some employees,
and then unlawfully fired her for lying about her activities. Because the
subject matter of the disciplinary interview was improper (concerted labor
activities) the employer could not terminate her for untruthfulness. U.S.A.A.
and Williams, #12-CA-21735, 2003 NLRB Lexis 666, 173 LRRM (BNA) 1331, 340
NLRB No. 90 (NLRB 2003). [2004 FP Feb]
Under Title VII, employers have a legal
duty to investigate a complaint of rape or sexual harassment. Jackson v.
McCrory, Comm. Pl. Ct. of Phila. Co. (2002). [N/R]
Fire chief could not require firefighter to answer
questions about complaint of off-duty sexual contact with 12 year old.
Young v. Winkle, #86-2501, Lucas Co. Ct. Cm. Pls., 1 IER Cases (BNA) 1483
(1986).
State trooper given $50,000 and reinstatement;
improperly terminated for refusing polygraph questions pertaining to his
sex life. J.R. Lopez v. Idaho Dept. of Law Enforcement and Idaho Personnel
Cmsn., Fourth Dist. Ct., Idaho Falls, ID (Dec. 1984).
Department's inquiry into officer's off-duty
relationship with female violated his "zone of privacy'; refusal to
answer questions justified. Shuman v. City of Philadelphia, 470 F.Supp.
449 (E.D. Pa.); Gilles v. Civil Serv. Bd., 99 Cal.App.3d 417, 160 Cal.Rptr.
278 (1979). But see Shago v. Spradlin, 701 F.2d 470 (5th Cir. 1983), aff'd
U.S. Sup. Ct. (1983).
Failure to provide list of friends at alleged
drug parties was insubordination; discharge not an excessive penalty. Kelly
v. State Personnel Board, 156 Cal.Rptr. 795 (App. 1979).
Scope of questioning limited to official
duties by New York Court, Ronayne v. Lombard, 400 N.Y.S.2d 693 (Misc. 1977).
Tennessee high court reinstates captain discharged
for failure to answer questions unrelated to duties. Cox v. City of Chattanooga,
516 S.W.2d 94 (Tenn. App. 1973), aff'd (Tenn. Sup. Ct. 1974), cert. den.
95 S.Ct. 59 (1974).
DISCIPLINARY
INTERVIEWS:
TIME
OF INTERVIEW
Department
may continue to question accused employee after charges are filed. Tanico
v. McGuire, 438 N.Y.S.2d 791 (A.D. 1981).
Union president, on leave, was still required
to report to internal affairs office to answer questions. Crowley v. C&C
of San Francisco, 83 Cal.App.3d 776, 1978 Cal.App. Lexis 1809, 146 Cal.Rptr.
264.
DISCIPLINARY
INTERVIEWS:
UNTRUTHFULNESS
Appeals court declines to overturn
the termination of a police officer who violated agency policy and was
untruthful about his conduct. Honesty is critical to an officer's performance
of duty. Huemiller, v. Ogden Civil Service Cmsn., #20010968-CA, 2004 UT
App 375, 101 P.3d 394, 2004 Utah App. Lexis 414 (2004). [2005 FP Mar]
A fire captain with 18 years of service was
fired for failing to cooperate truthfully in an I-A investigation of a
"blue flu" sickout in 2000, when 141 out of 194 firefighters
called in sick during a four days. An appellate court found that the decision
to terminate him was not made in good faith or with just cause, even though
he gave evasive answers during an I-A interview to questions regarding
a telephone conversation. Lacombe v. Lafayette City-Parish Consol. Govt.,
#03-483, 2003 La. App. Lexis 3122, 20 IER (BNA) Cases 1059 (La.App.3rd
Cir., 2003). {N/R}
Although termination might not be appropriate
for making a false insurance claim 14 years earlier, an arbitrator upholds
the dismissal because the officer lied during the I-A investigation and
continued to mislead his superiors up until his time of termination. Kitsap
County and Kitsap Co. Deputy Sheriff's Guild , 118 LA (BNA) 1173, AAA Case
#75-L-390-00240-02 (Gaba, 2003). [2004 FP Feb]
Supreme Court reverses lower decisions; upholds
the termination of employees who lied to their superiors. Punishment also
can be added for those who lie. LaChance v. Erickson, 522 U.S. 262, 118
S. Ct. 753, 1998 U.S. Lexis 636, 13 IER Cases (BNA) 1015, 118 S.Ct. 753.
[1998 FP 35]
Supreme Court votes 7-to-2 to reverse the
line of cases that allowed a criminal suspect to reply an exculpatory
no. 18 U.S. Code 1001 permits prosecutions for lying to a federal agent.
Brogan v. U.S., 1998 U.S. Lexis 648, 118 S.Ct. 805. [1998 FP 35]
Reversed: Federal appeals court, in five
consolidated cases, holds that public employees cannot be disciplined for
falsely denying any misconduct after formal disciplinary charges have been
made. Decision would still allow agencies to discipline employees for at
the investigatory stage. King v. Erickson et al, 1996 U.S. App. Lexis 17473
(Fed.Cir. 1996. In a sixth, unpublished decision, the court rejects discipline
for lying during an internal affairs jurisdiction. King v. McManus, 1996
U.S. App. Lexis 18002, 30307 (Fed. Cir. 1996). See LaChance v. Erickson,
above for Supreme Court's reversal. [1997 FP 116-8]
Arbitrator upholds termination of trooper
who stopped an attractive motorist for no apparent reason, and then flirted
with her. He also lied about the incident to his superiors. Ohio (State
of) and FOP Council 1, 34 (1693) G.E.R.R. (BNA) 1702 (Feldman, 1996). [1997
FP 36]
Arbitrator sustains termination of officer
who was untruthful during I.A. interview. Las Vegas and L.V. Police Prot.
Assn., LAIG #4669; 2 (9) Pub.Sfty.Lab. News (LRIS) 8 (Hardbeck, 1993).
{N/R}
Discipline upheld for giving evasive answers
during an internal affairs interview. Steinberg v. Dolley, 562 N.Y.S.2d
742 (A.D. 1990).
Termination not excessive punishment for
untruthfulness during an internal investigation, even though officer had
over thirty years of service. Donofrio v. City of Rochester, 144 A.D. 2d
1027, 534 N.Y.S.2d 630 (1988). [89 FP 166]
DISCIPLINARY
INTERVIEWS:
:VIDEO
OR AUDIO TAPING
Federal Labor
Relations Authority finds that federal law enforcement agencies may videotape
its internal affairs interviews, but must bargain over the "impact
and implementation" of the process.Customs Service and NTEU-143/#168,
#DA-CA-60047,-48, 2000 FLRA Lexis 75, 56 FLRA No. 56; also see prior decis.
at 55 FLRA No. 16, 1998 FLRA Lexis 257. [2000 FP 147-8; 1999 FP 54
DISCIPLINARY
INTERVIEWS:
POLYGRAPHED
INTERVIEWS
Detectives
did not violate the Constitutional rights of two police trainee-officers,
who were suspected of armed robbery, when they requested them to take a
polygraph exam. Scott v. City of Dallas, 876 F.Supp. 852 (N.D.Tex. 1995).
[1995 FP 117]
See also: Polygraph
Examinations (another Topic)
DISCIPLINARY
INTERVIEWS:
WEINGARTEN
RIGHTS:
Arbitrator
holds that a transit authority did not have just cause to discharge a bus
driver who stole money from a wallet that had been left in her bus, because
she was not properly informed of her Weingarten rights. Had she consulted
with a union steward, she may not have lied about how she got the wallet.
Chicago Transit Auth. and Amal. Transit Union L-241, 121 LA (BNA) 478,
Grievance No. 03-327 (Wolff, 2005), relying on County of Cook and RW&DS
Union L-200, 105 LA (BNA) 974, FMCS Case #95/15973 (Wolff, 1995). [2005
FP Dec]
Appellate court overturns a NY labor board
ruling that allowed police officers and other unionized public employees
to have the assistance of a Weingarten representative during a criminal
interview where the union member is a suspect. City of Rochester v. Public
Empl. Rel. Bd. and Rochester Police Locust Club, #TP 04-01759, 15 A.D.3d
922, 790 N.Y.S.2d 788, 2005 N.Y. App. Div. Lexis 1068 (App. Div. 4th Dept.);
review denied, 2005 N.Y. Lexis 1120 (N.Y. 2005). [2005 FP Jul]
Arbitrator reinstates an officer who, after
an auto collision, declined to sign a statement without conferring with
his union representative. U.S. Customs and AFGE L-2455, 120 LA (BNA) 1397
(Mitchell, 2005). [2005 FP Jul]
Arbitrator reduces a termination to a demotion,
with loss of back pay, and salary reduction for a police civilian employee
who was untruthful at an interview. Management failed to provide her with
the assistance of a union representative at an official interview. Prince
George's County and PGC Police Civilian Employees Assn., AAA Case #16-390-00381-04,
120 LA (BNA) 682 (Smith, 2004). [2005 FP Apr.]
New York's PERB holds that a union
employee is entitled to have his Weingarten representative present during
a criminal interview. Although the conduct of criminal investigations of
officers is not a mandatory topic for collective bargaining, the representative
is there to assist an employee, not to negotiate with the employer. Rochester
Police Locust Club and City of Rochester, Case #U-23938, 37 NYPER 3015,
2004 NYPER (LRP) Lexis 80 (NY PERB 2004). [2004 FP Nov]
A divided National Labor Relations Board
reverses Epilepsy Foundation v. NLRB, a controversial ruling that extended
Weingarten rights to employees that are not members of a bargaining unit.
Nonunionized employees are no longer entitled, under Sec. 7 of the NLRA,
to have a coworker accompany them to a disciplinary interview. IBM Corp.
and Schult, #11-CA-19324, 341 NLRB No. 148, 2004 NLRB Lexis 301 (NLRB 2004).
[2004 FP Sep]
In a nonpublished decision, a California
appeals court holds that if Weingarten rights apply to nonunionized public
employees, those rights are not retroactive before July 10, 2000. Traina
v. City of Fontana, #E031851, 2003 Cal. App. Unpub. Lexis 1623 (4th Dist.
2003). [2003 FP May]
DC Circuit upholds a NLRB decision that extends
Weingarten rights to nonunion employees. Supreme Court declines review.
Epilepsy Fdn. of NE Ohio v. NLRB, #00-1332, 268 F.3d 1095, 2001 U.S. App.
Lexis 23722, 168 LRRM (BNA) 2673 (D.C. Cir. 2001); cert. den. 536 U.S.
904 (2002). [2002 FP Aug] Note: overruled by IBM Corp. and Schult, #11-CA-19324,
341 NLRB No. 148, 2004 NLRB Lexis 301 (NLRB 2004). [2004 FP Sep]
Federal appeals court holds that a member
of a bargaining unit is entitled to a union rep. during an interview, even
if management characterizes the investigation as criminal rather than
administrative. U.S. Dept. of Justice v. FLRA, #00-1433, 2001 U.S. App.
Lexis 21573 (D.C.Cir.). [163-4]
NLRB extends Weingarten Rights to nonunion
worksites. Epilepsy Fdn. of NE Ohio and Borgs, #8-CA-28169, 331 N.L.R.B.
92, 2000 NLRB Lexis 428, 69 Law Week 2038 (7/10/00). [2000 FP Sep] Note:
reversed by IBM Corp. and Schult, #11-CA-19324, 341 NLRB No. 148, 2004
NLRB Lexis 301 (NLRB 2004). [2004 FP Sep]
Railway Labor Act did not give railroad police
officer the right to the presence of a union representative during questioning
by his supervisors about a possible work rule violation concerning possession
of a weapon. Pawlowski v. N. Ill. Reg. Commuter R.R., #98-4287 186 F.3d
997 (7th Cir. 1999). {FP N/R} {2000 SLU 21}
Supreme Court holds that a federal employee
who is a member of a bargaining unit is entitled to the presence of his
union representative at an interview, conducted by the Office of Inspector
General. Although the OIG is not a part of the management hierarchy, discipline
could result from the interview.NASA v. NLRA, 119 S.Ct. 1979, 1999 U.S.
Lexis 4190. {N/R}
Federal court issues an injunction preventing
management from introducing a use-of-force incident report in the disciplinary
hearing. Superiors required the involved officer to complete the report
without the presence of the union attorney. Court put compelled reports
in the same category as formalized IA interviews. Watson v. Co. of Riverside,
976 F.Supp. 951, 1997 U.S.Dist. Lexis 13797 (C.D.Cal.). [1998 FP 3-4]
Illinois Supreme Court upholds the termination
of a sergeant who refused to speak with the sheriff without her union rep.
present. Justices conclude that Weingarten is not applicable because
the interview was "informal" and nondisciplinary. Ehlers v. Jackson
Co., 183 Ill.2d 83, 697 N.E.2d 717, 1998 Ill. Lexis 916; app. decis. at
683 N.E.2d 141 reversed. [1998 FP 117]
Divided state labor board holds that an EMT
was entitled to Weingarten representation at an interview to have
his picture taken, and to answer a questionnaire. State Empl. Rel. Bd.
v. Cleveland, #96-ULP-04-0254, 1997 OPER (LRP) Lexis 345, SERB 97-011 (Ohio
SERB 1997). {N/R}
Arbitrator concludes that the Weingarten decision has no application to an immediate suspension and an order to
leave the premises. The employee had a duty to obey and was not entitled
to consult with his union representative at that time. Hussman and USA
L-9014, 109 LA (BNA) 833 (Crider, 1997). [1998 FP 132]
Riverside deputy, accused of beating illegal
immigrants, sues the Sheriff Dept., because he was required to complete
an "incident" report without the assistance of counsel. Watson
v. Co. of Riverside, #ED CV96-148-RT,(C.D.Cal. 1996). [1996 FP 116] Note:
See 1997 U.S. Dist. Lexis 13797 for the decision in that case.
Michigan arbitrator extends Weingarten Rights to a written report that was requested by a supervisor. Officers
need not assert their rights; management must inform subordinates of their
right to representation if the inquiry can lead to discipline. Lansing
(City of) and Capitol City Post 141, 106 LA (BNA) 761 (Ellmann, 1996).
[1996 FP 133-4]
Appellate court upholds termination of trooper
who refused to give a statement because the union rep was not present.
He should have obeyed the order and filed a grievance. Kennedy v. N.Y.
St. Police, 628 N.Y.S.2d 445 (A.D. 1995). [1996 FP 54]
Arbitrator concludes that the Weingarten decision requires management to delay an employee interview until a labor
rep. is present, whenever the employee "reasonably believes"
that disciplinary action might be taken. The fact that management chooses
to characterize an interview as "nondisciplinary" is not controlling.
Manchester (City of) and Manchester Police Patrolmen's Assn., AAA 11-390-01552-93
(Greenbaum, 1994). {Our Ref. 5569} [1995 FP 21-2]
Michigan appellate court holds that Weingarten applies: Wayne-Westland Educ. Assn. v. W-W Comm. Schools, 439 N.W.2d 372
(Mich.App. 1989), appeal den. 433 Mich. 908 (1990).
Iowa holds that public employees are entitled
to a union rep's presence at a disciplinary interview or interrogation.
City of Marion v. Weitenhagen, 361 N.W.2d 323 (Iowa App. 1984).
New Hampshire Public Employment Labor Relations
Commission has adopted Weingarten rights for public employees. N.H.
PELRB Decisions 92-73, 92-194 (1992).
New York and West Virginia have declined
to follow Weingarten. Sperling v. Helsby, 400 N.Y.S.2d 821, 60 A.D.2d
559 (1977); Swiger v. Civil Serv. Cmsn., 365 S.E.2d 797, 179 W.Va. 133
(1987).
Weingarten does not give an employee
the right to have a labor rep present when a strip-search is conducted.
DoJ Bur. of Prisons and AFGE L-3696 (ALJ opin. 1983), rptd. at 1984 FLRA
Lexis 544, 14 FLRA No. 59. {N/R}
Trial judge holds that officers may consult
with union reps before completing a shooting report; prior policy continued.
Long Beach Police Off. Assn. v. City of Long Beach, L.A. Daily Journal
(11/10/82).
Florida reaffirms that Weingarten applies to public employees. City of Clearwater v. Lewis, 404 So.2d 1156
(Fla.App. 1981).
Pennsylvania applies Weingarten decision;
officer has right to union representation during disciplinary interrogation.Penn.
Labor Rltns. Bd. v. Shaler Twp., Case #PF-C-93-W (1980).
Right to representation by union representative
upheld in Florida. Seitz v. Duval Co. Sch. Bd., Fla. PERC Case #8H-CA-764-1015,
G.E.R.R. (BNA) 767:14 (1978). [#51 FP 4]
Trial judge holds that officers may consult
with union reps before completing a shooting report; prior policy continued.
Long Beach Police Off. Assn. v. City of Long Beach, L.A. Daily Jour. (11/10/82).
Calif. follows Weingarten decision.
Robinson v. St. Persnl. Bd., 97 Cal.App.3d 994, 159 Cal.Rptr. 222 (1979).
{N/R}
Federal appeals court reaffirms Weingarten holding and extends it to counseling sessions about the employee's job
performance, which was a "preliminary stage in the imposition of discipline."
Lewis v. NLRB, 587 F.2d 403 (9th Cir. 1978).
Right to representation by union representative
upheld in Florida. Seitz v. Duval Co. Sch. Bd., Fla. PERC Case #8H-CA-764-1015,
G.E.R.R. 767:14 (1978). (1979 (51) FP 4).
Supreme Court concludes that a member of
a bargaining unit is entitled to representation at a disciplinary interview.
NLRB v. Weingarten, 420 U.S. 251, 95 S.Ct. 959 (1975).
See also: Bill of Rights Laws; Disciplinary Hearings; Past Practices Clauses; Polygraph Examinations.