AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Disciplinary Interviews & Compelled Reports
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)
Monthly
Law Journal Article: Investigative Detention of
Employees Part One: Criminal Interviews, 2008 (4) AELE Mo. L. J. 201.
ABUSIVE
OR COERCIVE INTERVIEWS/INVESTIGATIONS
Police
officers claimed that they had been mistreated during an internal investigation
of the discharge of one of three officer's weapons while they were off duty and
drinking at a bar in close proximity to a police station. The plaintiffs failed
to show that their administrative interrogations about the incident violated
the Public Safety Officers Bill of Rights Act or their Fourth Amendment rights
or a state civil rights act. They failed to show physical or mental hardships.
Quezada v. City of Los Angeles, #B245879, 2014 Cal. App. Lexis 8.
Divided panel of the Ninth Circuit rejects a
civil rights suit brought by deputies that were required to remain on duty to
assist superiors with a criminal investigation of unlawful use of force. They
were paid overtime, were allowed to contact counsel and "were not treated
like criminal suspects." "A law enforcement officer is not seized for
purposes of the Fourth Amendment simply because a supervisor orders him to
remain at work after the termination of his shift or to come into the station
to submit to questioning about the discharge of his duties as a peace
officer." Dissenting judge noted that the deputies "weren't told they
were free to leave, and they weren't told they didn't have to answer
questions." Aguilera v. Baca, #05-56617, 510 F.3d 1161, 2007 U.S. App.
Lexis 29804 (9th Cir.).
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)
California
appeals panel rejects preliminary injunctive relief because a sheriff's dept.
revised its procedures to prevent officers, who were either involved in or
witnessed an officer-involved shooting, from consulting with legal counsel and
or labor representatives collectively or in groups (two or more officers
consulting at the same time with the same legal counsel/labor representative).
They may continue to consult counsel individually, or to be represented as a
group at a later time. Nothing in the constitution or bargaining laws warrants
an injunction against the policy change while the litigation is pending. Assn.
L.A. Deputy Sheriffs v. Co. of Los Angeles, #B197611, 2008 Cal. App. Lexis 1460
(2nd Dist.).
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 police officer employed by one city applied for a job in another city’s department. During the hiring process, he disclosed that he had kept a knife he obtained during his employment with the first department. He was conditionally offered a job by the second city, but first required to report his acquisition of the knife and return it to the first department. He did so, and was ordered by the police chief to submit a written report concerning the knife, which he complied with by submitting a “vague” one sentence report. An internal investigation was opened and he was ordered to provide a more detailed statement. Based on this second statement and other evidence uncovered as a result of it, the chief had the Kansas Bureau of Investigation open a criminal investigation. This caused the second department to withdraw its job offer. The officer faced two state law felony charges, but they were dismissed for lack of probable cause. He sued, claiming that his constitutional rights were violated because his compelled statements were used: (1) to start an investigation leading to the discovery of additional evidence concerning the knife; (2) to initiate a criminal investigation; (3) to bring criminal charges; and (4) to support the prosecution during the probable cause hearing. He argued that these uses of compelled statements violated his right against self-incrimination. For alleged Fifth Amendment violations he sued both cities and four officers. The federal appeals court held that the Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing, but that the individual officers were entitled to qualified immunity. The second city did not compel Vogt to incriminate himself, but he stated a plausible claim for relief against the first city. Vogt v. City of Hays, #15-3266, 2017 U.S. App. Lexis 102 (10th Cir.).
Because of Garrity violations, a federal court
dismissed all charges against Blackwater tactical support team members arising
out of the 2007 Nisour Square shootings in Iraq.
"In their zeal to bring charges against the
defendants in this case, the prosecutors and investigators aggressively sought
out statements the defendants had been compelled to make to government
investigators in the immediate aftermath of the shooting and in the subsequent
investigation. ...
"The government used the defendants'
compelled statements to guide its charging decisions, to formulate its theory
of the case, to develop investigatory leads and, ultimately, to obtain the
indictment in this case. The government's key witnesses immersed themselves in
the defendants' compelled statements ... The explanations offered by the
prosecutors and investigators in an attempt to justify their actions and
persuade the court that they did not use the defendants' compelled testimony
were all too often contradictory, unbelievable and lacking in credibility.
"In short, the government has utterly failed
to prove that it made no impermissible use of the defendants' statements or
that such use was harmless beyond a reasonable doubt. Accordingly, the court
must dismiss the indictment against all of the defendants." U.S. v.
Slough, #1:08-cr-00360 (D.D.C. 2009).
California Supreme Court overturns the appellate
decision in Spielbauer. All seven justices agree that a public employee can be
required to answer questions – even if the answers are incriminating. A public
employee has no right to require a court or prosecutor to grant immunity from
prosecution as a condition for cooperating in an internal affairs interview.
“The Constitution affords a public employee no right to refuse to account for
his or her job performance, or to avoid dismissal as punishment for such a
refusal. It simply forbids use of the compelled statements, or the fruits
thereof, in a criminal prosecution against the employee.” Spielbauer v. Co. of
Santa Clara, #S150402, 2009 Cal. Lexis 1010, 2009 WL 291191, 09 C.D.O.S. 1578.
Arbitrator holds that management had just cause
to remove a police officer who invoked his right to remain silent under Fifth
Amendment in an internal investigation. The grievant understood the order given
to him and knew the consequences of disobeying the order, and was aware that
his answers could not be used against him in a criminal prosecution. City of
Houston and Individual Grievant, AAA # 70-390-00123-07, 124 LA (BNA) 755 (H.
Moore, 2007).
Divided panel of the Ninth Circuit rejects a
civil rights suit brought by deputies that were required to remain on duty to
assist superiors with a criminal investigation of unlawful use of force. They
were paid overtime, were allowed to contact counsel and "were not treated
like criminal suspects." "A law enforcement officer is not seized for
purposes of the Fourth Amendment simply because a supervisor orders him to
remain at work after the termination of his shift or to come into the station to
submit to questioning about the discharge of his duties as a peace
officer." Dissenting judge noted that the deputies "weren't told they
were free to leave, and they weren't told they didn't have to answer
questions." Aguilera v. Baca, #05-56617, 510 F.3d 1161, 2007 U.S. App.
Lexis 29804 (9th Cir.).
Federal court rejects a claim that use of force
reports may not be used against an officer because they are obtained in
violation of the Fifth Amendment right against self-incrimination.
"Garrity does not stand for the proposition that a statement made in a
standard report is coerced whenever an officer faces both the remote
possibility of criminal prosecution if he files the report and the arguably
even more speculative possibility of termination if he declines to do so."
U.S. v. Cook, #CR-07-192, 2007 U.S. Dist. Lexis 77495 (D.D.C.).
New Mexico holds that even in the absence of
warnings, an internal investigation statement is not admissible in a criminal
prosecution, if the employee believed that disciplinary action would be taken
if he or she failed to respond to questions. State v. Chavarria, #21,739, 131
N.M. 172, 33 P.3d 922 (N.M. App. 2001). {N/R}
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.
A police officer was criminally prosecuted and convicted for willfully depriving the passengers of a vehicle of their right to be free from unreasonable force under 18 U.S.C. 242. He fired 16 shots after the stopped vehicle was put in reverse, with shots injuring two passengers. He had argued that he shot because of an “imminent threat of battery” from the vehicle, but no one was in its path. A federal appeals court upheld the conviction, rejecting the officer’s arguments regarding the admission of training and policy evidence and a jury instruction on willfulness. The court further upheld the denial of a “Garrity” motion. Under Garrity v. New Jersey, #13, 385 U.S. 403 (1967) when an officer must choose between cooperating in an internal investigation or losing his job, his statements during the investigation cannot be used against him in a criminal prosecution. But in this case, prosecutors were never exposed to the officer’s protected statements. A dashcam video, other witnesses, and police reports all provided independent bases from which they could have learned the facts. U.S. v. Proano, #17-3466, 2019 U.S. App. Lexis 390, 2019 WL 115317 (7th Cir.).
Despite
the protections in Garrity, a state employee can waive those rights
after he is fired and allow his prior compelled statements to be used by the
federal government in a criminal investigation concerning the death and beating
of an inmate, provided the waiver was voluntary, knowing, and intelligent.
Further, in this case, the statements made by a corrections officer were not
compelled because he did not show that he subjectively believed that his
statements were compelled on threat of job loss, and that this belief was
"objectively reasonable." But even if they were compelled, he
adequately waived his Garrity protections, United States v. Smith,
#13-15476, 2016 U.S. App. Lexis 7762 (11th Cir.).
Illinois
appellate court holds that when prosecutors have access to an officer's I-A
statement, the defendant receives use immunity, not transactional immunity.
Three-judge panel rejects the holding of U.S. v. North, #89-3118, 910 F.2d 843
(D.C. Cir. 1990) and adopts the holding in U.S. v. Koon, 34 F.3d 1416 (9th Cir.
1994). People v. Haleas, # 1-09-3353, 2010 Ill. App. Lexis 1088 (1st Dist.).
Officers’ use of force reports and I-A statements
could not be subpoenaed by a state prosecutor who charged the officers with
official misconduct. People v. Smith, #3-09-0524, 2010 Ill. App. Lexis 283 (3rd
Dist.).
California appellate
court rules that a public employee facing an internal disciplinary interview
cannot be compelled to waive the Fifth Amendment right against
self-incrimination by means of a "Garrity" assurance that his or her
answers are inadmissible in a criminal case. The employee must be given formal
immunity from use of the statement or its fruits in any future prosecution,
before being ordered to answer a question. (The justices disregarded the
California Supreme Court's 1985 decision in Lybarger v. City of Los Angeles, 40
Cal. 3d 822, 710 P.2d 329, 221 Cal.Rptr. 529, which elaborated on the rights
enunciated in the U.S. Supreme Court's 1967 decision in Garrity v. New Jersey,
385 U.S. 493). Spielbauer v. County of Santa Clara, #H029345, 146 Cal. App. 4th
914, 53 Cal. Rptr. 3d 357, 2007 Cal. App. Lexis 40 (6th Dist.). [N/R]
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
Although
mandatory participation in a critical incident review is subject to collective
bargaining, troopers are not entitled to the presence of legal counsel, because
the review is non-disciplinary and is not an administrative interrogation that
may lead to discipline or removal. P.B.A. State Troopers v. N.Y. State Police,
#118, 2008 NY Slip Op 05957, 2008 N.Y. Lexis 1930, 2008 NY Int. 113.
Ohio appellate panel sets aside an arbitration
award that reinstated a police officer because he was denied legal counsel
during a disciplinary interview. The officer's remedy was to file a separate
grievance; the arbitrator lacked authority to impose an unspecified sanction
against the employer. City of Portsmouth v. FOP L-33, #05CA3032,
2006-Ohio-4387, 2006 Ohio App. Lexis 4284,182 L.R.R.M. (BNA) 2566 (4th Dist.).
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.)
New York
appellate court rejects an unusual theory that a probationary NYPD officer
should not have been fired for making false and misleading statements to
internal affairs investigators, because the underlying offense of credit card
fraud occurred before he was hired. The panel also discarded a claim that
internal affairs lacked authority to question him about preservice conduct
because hiring decisions are made by the city's Dept. of Admin. Services,
Matter of Duncan v. Kelly, #104079/04, 2007 NY Slip Op 06408, 2007 N.Y. App.
Div. Lexis 8923 (1st Dept.).
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:
A
union representing government employees at an Air Force base appealed a Federal
Labor Relations Authority (FLRA) decision rejecting its claim that the base
committed an unfair labor practice by denying the request of an employee to
have a union representative present during questioning by the Air Force Office
of Special Investigations (AFOSI) about alleged misuse of a work computer. The
union's claim was based on a provision of 5 U.S.C. sec. 7101 et seq., which
provided federal employees who belonged to a union with the right to the
presence of a union representative when questioned about things that could lead
to discipline. The FLRA relied on President Carter’s Executive Order 12,171,
which exempted AFOSI from coverage under the Labor-Management Statute. A
federal appeals court ruled against the union, finding that section 7103(b)(1)
and Executive Order 12,171 extinguished any right to have a union
representative present during a proper AFOSI interrogation. American Fed. of
Gov. Employees v. FLRA, #15-9542, 2016 U.S. App. Lexis 16418, 207 L.R.R.M.
(BNA) 3197 (10th Cir.).
When a firefighter was
called into a meeting with the fire chief for an interview concerning a
personnel complaint the chief had filed against him, he asked to have a
representative from his union present. The request was denied and the interview
continued with no representative present. He was suspended for five days. He
and the union argued in a lawsuit that the right to have a union representative
present during such an interview was granted by a state statute. The Texas
Supreme Court held that the statute in question did not give public employees
in the state the right to have a union representative present at an
investigative interview that the employee reasonably believes could subject him
to disciplinary action. City of Round Rock v. Rodriguez, #10-0666, 2013 Tex.
Lexis 266.
Illinois appellate court holds that a union
employee has a right to both advance notice about the subject matter of a
disciplinary interview and a pre-interview conference with a union
representative. However, neither she nor her union representative ever
requested notice of the subject matter of the interview, and notice of the
subject matter of the interview was therefore waived. Illinois St. Toll Hwy.
Auth. v. Illinois Labor Rel. Bd. (Williams), #2-09-0763, 2010 Ill. App. Lexis
1189.
Where special or local laws regulate police
disciplinary hearings in New York, a collective bargaining agreement cannot
override those laws. Because of special legislation, an officer was not
entitled to a Weingarten representative during an I-A interview. Harrison
Police Benevolent Assn. v. Town of Harrison, #2008-06659, 892 N.Y.S.2d 495,
2010 NY Slip Op 00160, 2010 N.Y. App. Div. Lexis 111.
California appeals panel rejects preliminary
injunctive relief because a sheriff's dept. revised its procedures to prevent
officers, who were either involved in or witnessed an officer-involved
shooting, from consulting with legal counsel and or labor representatives
collectively or in groups (two or more officers consulting at the same time
with the same legal counsel/labor representative). They may continue to consult
counsel individually, or to be represented as a group at a later time. Nothing
in the constitution or bargaining laws warrants an injunction against the
policy change while the litigation is pending. Assn. L.A. Deputy Sheriffs v.
Co. of Los Angeles, #B197611, 2008 Cal. App. Lexis 1460 (2nd Dist.).
Although the bargaining agreement required
management to "remind" employees of their Weingarten rights prior to
a disciplinary interview, arbitrator rules that the clause was not applicable
to a worker's compensation deposition. Untruthfulness at the deposition is just
cause for termination. Horsehead Corp. and USW Internl. Union, L-13-401, 124 LA
(BNA) 193, FMCS Case No. 07/01637 (Moore, 2007).
New York appellate court rejects a suit
challenging a revised state police policy that officers who are questioned
after a critical incident are no longer allowed to have a union representative
present. The officers failed to show that the revised policy "is
reasonably certain to result in actual harm to members in either the criminal
or disciplinary context" and they lack legal standing to challenge
managements' current policy. Police Benevolent Assn. of N.Y. State Troopers v.
New York State Div. of State Police, #501721, 2007 N.Y. App. Div. Lexis 8725
(3rd Dept.).
New York laws that provide public employees with
the right to bargain collectively do not provide them with Weingarten rights,
and the city did not violate state law when it denied an employee's request for
union representation at meeting that could have resulted in disciplinary
action. N.Y. City Transit Authority v. P.E.R.B., #5, 2007 N.Y. Lexis 163, 181
L.R.R.M. (BNA) 2463 (N.Y. 2007).
Pennsylvania Supreme Court upholds a public
employee's Weingarten right to request union representative of employee's
choice. Penn. Office of Administration v. P.L.R.B., #101 MAP 2005, 2007 Pa.
Lexis 355, 181 L.R.R.M. (BNA) 2469 (Pa. 2007).
NY Public Employment Relations Board
Administrative Law Judge declines to find that State Police management
committed an unfair practice by denying an employee representation during an
investigatory interview concerning the employee's involvement in a
"critical incident." The grievant was not a target of the inquiry,
and the union representative was offered an opportunity to be present at the
interview of the grievant, without participation, but he declined. PBA NY State
Troopers and NY Div. of State Police, Case #U-22830, 39 NYPER (LRP) P4547, 2006
NYPER (LRP) Lexis 66 (NY-PERB 2006). {N/R}
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]
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.