Investigation & Risk Management
Screening & Talent
William D. Evans, II Forensic Polygraph Examiner, JD, MS, A.C.P
Nancy K. Grant
Poly-Tech Associates, Inc.
Truth & Law Center
1185 South Main Street
Akron, OH 44301
4403 St Clair Ave
Cleveland, OH 44103
250 East Broad St.
Columbus, OH 43215
Everyday, law enforcement administrators, detectives and internal affairs officers investigate criminal and ethical violations within the ranks of public service. Additionally, law enforcement detectives conduct criminal investigations on behalf of corporations or businesses within their jurisdiction. Regardless of the basis for the investigation, several procedural safeguards exist that detectives and administrators must address before beginning the investigation.
This article discusses the most common dilemmas that surface, and suggests proper steps to follow for a successful outcome. Note, a local Law Director, Prosecutor or police legal advisor should first be contacted, since state law, Municipal contract law and so on, differ from jurisdiction to jurisdiction. The information contained in this article is presented for informational purposes only.
Garrity is the case routinely cited as authority on the subject of administrative interviews involving governmental and political subdivision employees. According to the general provisions of Garrity, admissions made by a suspect or target, are to be barred from criminal proceedings when made during an administrative interview. The facts of the Garrity case were simple; several police officers were investigated for fixing traffic tickets. During the administrative interviews, the suspects/targets were asked questions and their answers were subsequently used against them in criminal proceedings (Garrity v. New Jersey 1967).
The officers claimed that the incriminating answers were coerced in that they were given the awkward choice of either forfeiting their jobs, or incriminating themselves. The Supreme Court, in its opinion, stated, "the option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or remain silent." That practice, like the interrogation reviewed in Miranda v. Arizona (Miranda v. Arizona 1966), is "likely to elicit such pressure upon an individual as to disable him/her from making a free will and rational choice." "We [U.S. Supreme Court] think the statements were infected by coercion inherent in this scheme of questioning and can not be sustained as voluntary under our prior decisions."
In Garrity, the court explained "before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office" (Garrity v. New Jersey 1967).
Further, the Garrity Court held that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic" Gardner, Thomas J. and Anderson, Terry M. Criminal Evidence: Principles and Cases. (1995).
This rule is extended to any person that is subject to investigation and interrogation when the risk of job loss or sanction exists, provided that the employee can claim a "property interest" in his/her job. When a person has a legally enforceable right to receive a benefit, this right constitutes a property interest protected by due process. Jobs within this definition can actually be characterized as the employee's property. This is in contrast to an "at-will" employee, who serves at the pleasure of the employer and can be terminated without due process rights. Therefore a public employer must satisfy the procedural due process requirements before depriving a permanent employee of his/her property interest through disciplinary action. As a result, it is procedurally correct for an investigator to give a "Garrity warning" to public service employees and others possessing such property interest, when conducting any internal employment interviews of an administrative nature. This warning in some ways procedurally parallels the Miranda warning in cases involving custodial interrogations in criminal cases.
Courts have further expanded the use of Garrity as demonstrated in a case involving prosecution of a New Jersey teacher for marijuana and hashish possession. The Court recognized that the right to remain silent under the Fifth Amendment cannot be infringed upon, whether the penalty consists of the threat of a job forfeiture, fine or imprisonment. "Such choice, though fraught with the element of compulsion, is so destructive of free choice to speak out, or remain silent, that it will not be court enhanced as a matter of due process under the Fourteenth Amendment in State Court proceedings. Consequently, any statement made under such circumstances cannot be used as evidence in a criminal proceeding," Ott v. Hamilton Township Board of Education 160 N.J. Super. 333).
Most Garrity warnings contain the same general language as the following example provided by the Copley Township Police Department in Copley, Ohio, which states:
I wish to advise you that you are being questioned as part of an official investigation of the Copley Township Police Department. You will be asked questions specifically directed and narrowly related to the performance of your official duties or fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and the Constitution of this State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further wish to advise you that if you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to disciplinary charges by the Township, which could result in your dismissal from employment with the Township. If you do answer, neither your statements in response to these questions, nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. However, these statements may be used against you in relation to subsequent disciplinary charges.
The need to extend this due process safeguard to other employees outside of the routine law enforcement internal affairs investigation has now become commonplace. The investigator must recognize that even in certain cases filed against doctors, lawyers, teachers, etc., there may be property rights in job status protected through such case law Gardner, Thomas J. and Anderson, Terry M., Criminal Evidence: Principles and Cases, (1995). For example, it is not uncommon when a complaint is filed against a person possessing a license, that a statement, verbal or written, is required by an administration or investigator. Thus, most of those possessing a license to practice their trade or profession could face loss of that license and not incriminate themselves. This issue appeared in the 1967 case of Spevack v. Klein, where a lawyer lost his license to practice law. The Supreme Court held:
Lawyers are not exempted from the words "no person .. . .shall be compelled in any criminal case to be a witness against himself" and we can imply no exception. Like the school teacher in Slochower v. Board of Higher Education of City of New York, 350 U.S. 551 . . . and the policeman in Garrity v. State of New Jersey . . . lawyers also enjoy first-class citizenship.
This does not mean that an employee possessing a property interest in their job can skirt prosecution simply by claiming Garrity. Rather, such person cannot be relegated to second class citizenship and required to answer potentially incriminating questions under threat of losing one's job or protected status if there is a property interest at stake.
Many times in employment matters, the employee is faced with a dubious choice, neither of which is favorable. For example, if an employee at-will is offered the option to resign or be fired, common sense dictates that such option leaves but one choice. Thus, police officers, firefighters, school teachers and others claiming a property interest in his/her employment will be faced with Hobson's choice. For years, I assumed that Hobson's choice was coined after some famous legal case like Garrity or Miranda. Concerns over how Hobson's choice may impact employer/employee decisions, caused me to investigate the breadth and depth of facts behind Hobson.
Case law research began and it was discovered that although "Hobson's choice" was mentioned many times in various employment law cases, no such case law actually existed. In frustration, my research assistant resorted to a Google word search. We quickly discovered that Hobson's choice had a history totally unrelated to employment law.
The first written reference to "Hobson's Choice" is in Joseph Addison's paper, The Spectator. It also appears in Thomas Ward's poem England's Reformation, written in 1688, but not published until after his death. Ward writes, "Where to elect there is but one, 'tis Hobson's choice - take that or none."
The phrase originates from Thomas Hobson (1544-1630), who lived in Cambridge, England. Hobson was a stable manager renting out horses to travelers; the site of his stables is now part of St. Catharine's College. After customers began requesting particular horses again and again, Hobson realized that certain horses were being requested more than others, thereby being overworked. He decided to begin a rotation system, placing the well-rested horses near the stable door, and refused to let out any horse except in its proper turn. He offered customers the choice of taking the horse in the stall nearest the door or taking none at all ("Hobson's Story").
Understanding the holding in Garrity in conjunction with the concepts of Hobson, may actually provide assistance in answering some of the employment issues frequently arising in public employment internal affairs investigations.
Garrity should not be viewed as a detriment to investigators, any more than the Miranda warning is detrimental to an interrogation. In fact, both Garrity and Miranda can be viewed as an advance toward professionalizing the criminal and Internal Affairs interview process. Garrity can be beneficial to all parties concerned, employer and employee alike. For example, a police officer facing criminal prosecution may be wise to admit criminal misconduct during an administrative interview after having been advised of Garrity. Such statements, and any evidence gleaned from the statements will then likely be inadmissible in a subsequent criminal proceeding. Alternatively, if the investigator has a weak criminal case and wishes to discover the truth or to establish the extent of criminal activity during the probe, an employee can be offered the equivalent of an "employment plea bargain." Further, Garrity interviews can be the vehicle used to uncover information that would otherwise go undiscovered. In reality, Garrity becomes the incentive for the employee to tell the truth once the threat of criminal prosecution is removed.
Resignation can be the vehicle used to resolve a case in a mutually favorable way for both employer and employee. Such resignation is almost always a clean way to sever the employment relationship. Many times a non-Hobson resignation will result in the department or company avoiding unemployment compensation issues. Also, appeals are less likely to be successful if a resignation has been tendered. Resignation can also be used as a tool analogous to plea bargaining, as with Garrity. In this approach, when interviewing a suspect, the investigator should make the individual aware of inculpating information and evidence against him/her. Leniency regarding discipline or termination becomes the obvious incentive for the employee to provide additional information. The result may be that the investigation will then expand and implicate others, or act as a catalyst to produce new evidence and information.
Another method used by investigators, known as a "proffer," is used as a tool to identify other targets and gain additional information in federal level investigations. Generally, a negotiated agreement is struck with the defendant contingent upon a truthful proffer. Often such deals are struck between the employer and employee and are predicated upon a polygraph examination. This option can also be used to expand the investigation whenever the possibility exists that other persons may be involved in the case.
As in any investigation, the procedural aspects of the interview can make or break admissibility of testimonial evidence in a criminal court or arbitration. Procedurally, Garrity provides for due process protection, which must be accorded to the employee. However, the investigator must recognize that additional steps in due process include the right to a hearing before any disciplinary proceedings are initiated. Nevertheless, the internal investigation should begin promptly upon discovery of the misconduct (Kedigh 2005). The sooner an employer engages the investigatory process, the better. In sexual harassment cases, the sooner remedial action is taken, the more likely damages will be mitigated. After adequate facts have been gathered, it is advisable that the investigator consult with the police legal advisor to determine whether the employee's conduct constituted a breech of the criminal code. As in any investigation, at some point it is likely that the employee will be interviewed. It is at that time, Garrity rights must be given along with the Miranda warning if there is any hint of criminal involvement.
Another procedural requirement when dealing with a bargaining unit employee is found in the case of National Labor Relations Board (NLRB) v. Weingarten. The employee may request that another person be present during the interview process and is thereby entitled to a co-worker's presence during the interview (NLRB v. Weingarten 1975). In essence, Weingarten "provides for mutual aid or protection accorded for the interviewed employee. However, the co-worker is not to act as an attorney, nor may the co-worker impede or interfere in the interview process." The same protection does not extend to a non-union employee. (Kedigh 2005).
It is not unusual for an employee to request his/her attorney's presence during an administrative interview. Pursuant to the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and as articulated in the Miranda Warning, a custodial interrogation invokes a suspect's right to have an attorney present during questioning by state or governmental authorities (Kedigh 2005). However, "private conduct . . . may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections," (People v. Ray 1985). Situations that could transform private conduct into state action include "a clear connection between the police and the private investigation, completion of the private act at the instigation of the police, close supervision of the private conduct by the police, and a private act undertaken on behalf of the police to further a police objective," (People v. Ray 1985).
Throughout this article, it is noted that whenever an employee enjoys a property interest in his/her job, Garrity must be given, and certain due process protection is extended to the employee. An employee who exercises his/her Fifth Amendment rights does not negate the possibility of being asked to undergo polygraph testing in cases involving internal matters provided that it falls within the Employee Polygraph Protection Act of 1988. Governmental and political subdivision employees are exempt from any provisions under this act and may be examined by polygraph technique merely by being requested to submit to such examination. However, in such cases, employees will enjoy the procedural safeguards enumerated in the Act ("Employee Polygraph Protection Act"). Due process merely requires that employee must be given an opportunity to respond after being confronted with charges.
An employer can easily lose a contested discharge or disciplinary proceeding if there is deficient notice of the hearing provided to the employee. Notice is normally sufficient if the employee is timely notified orally or in writing. Employees in the private sector normally do not have due process rights and are therefore employees at-will. However, employees enjoying a property interest in their job can rely upon the case authority cited as Cleveland Board of Education v. Loudermill to protect the notice requirements of any due process hearing (Cleveland Board of Education v. Loudermill 1985).
It should be recognized that the Garrity rule has a few remote exceptions to the blanket guarantee that information obtained through administrative interview will not be used in a criminal proceeding. These exceptions are generally limited to certain cases whereby the suspect/target admits inculpating information which is later used by the prosecution to prepare for trial, prepare witnesses, or formulate trial strategy (Driscoll 2004). These cases do not imply that information disclosed by employees will actually be admitted as evidence, rather such information may be tangentially used by the prosecution for other reasons as noted.
The dilemma created by these exceptions may be solved by carefully wording any statement provided during the administrative interview process; a procedure that many police unions have recommended in light of the narrow exceptions to the Garrity protection. A trilogy of cases including Anderson, People v.Corrigan and Marotta stand on the premise that an employee's statement may be used by the prosecution in preparation for trial, to formulate trial strategy or prepare witnesses.
Though these exceptions to Garrity's protection are limited, the suspect/target employee may decide that it is in his/her best interest to simply remain silent and make no statement, thereby protecting his constitutional rights for trial (Kalkines 1973). As this discussion illustrates, a police officer often must choose which constitutional rights to protect under these limited Garrity rule exceptions; his/her Fifth Amendment right to remain silent or his property interest in employment. Again, Garrity and Kalkines prohibit the statement as evidence at trial against the employee (Driscoll 2004).
It is necessary to consider an additional issue concerning internal investigative interviews when federal level employees are questioned. In governmental internal affair matters, the Kalkines v. The United States the court granted the employee's motion for summary judgment as stated (Kalkines v. United States 1973):
The individual cannot be discharged simply because he invokes his U.S. Const. amend. V privilege against self incrimination in refusing to respond. Conversely, a later prosecution cannot constitutionally use statements, or their fruits, coerced from the employee, in an earlier disciplinary investigation or proceeding, by a threat of removal from office if he fails to answer the question. But a governmental employer is not wholly barred from insisting that relevant information be given it. The public servant can be removed for not replying if he is adequately informed both that he is subject to discharge for not answering and that his replies, and their fruits, cannot be employed against him in a criminal case.
Public employees subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights. Proper proceedings of that type means inquiries in which the employee is asked only pertinent questions about the performance of his duties and is duly advised of his options and the consequences of his choice. To require a public body to continue to keep an officer or employee who refuses to answer pertinent questions concerning his official conduct, although assured of protection against use of his answers or their fruits in any criminal prosecution, would push the constitutional protection beyond its language, its history or any conceivable purpose of the framers of the Bill of Rights.
Under the Fair and Accurate Credit Transaction Act of 2003 (FACTA), a recent amendment to the Fair Credit Reporting Act (FCRA), the employer is not required to give notice or receive permission from the suspect employee to conduct a misconduct investigation, if the employer hires an outside party to conduct the investigation. Additionally, the employer is not required to provide notice of rights, as is required in a standard employment background check. However, after applying the procedural and due process requirements mentioned in the preceding pages, the investigator is required to advise the employee in report form of any investigatory findings, which result in an adverse employment action. This adverse action notice is required only after the action has taken place. These changes occurred after objections by employers to previous notice requirements that would tip off employees to an investigation.
In these cases, the employer is required only to provide the employee with "a summary containing the nature and substance of the communication upon which the adverse action is based. Sources of information acquired solely for use in preparing the investigatory report" need not reveal or identify persons who provided information leading to termination or discipline of the employee (Kedigh 2005). Employees cannot dispute the findings of the investigational report under the FCRA dispute procedure. The new section on workplace misconduct has been removed from the definition of "consumer report". The usual protections, therefore, that apply to a consumer report conducted for employment purposes do not apply to misconduct investigations.
In summation, the rules of investigation differ depending on whether the case is an internal employee matter, or a criminal investigation of a person not employed within the agency or business. The general rules and cases suggested in the text are not intended as a legal opinion or advise and the application of such information may vary depending on a plethora of circumstances and facts specific to the case under investigation.
Cleveland Board of Education v. Loudermill. No. 470 U.S. 532. U.S. Supreme Court. 19 Mar. 1985.
Driscoll, Donald W. "Garrity v. New Jersey and its Progeny: How Lower Courts are Weakening the Strong Constitutional Protections Afforded Police Officers." The Buffalo Public Interest Law Journal (2004).
"Employee Polygraph Protection Act." 29 US Code. Ch. 22. Sec. 2001-08.
Garrity v. New Jersey. No. 385 U.S. 493. U.S. Supreme Court. 16 Jan. 1967.
Giachino, Fernando. Diss. Stetson Univ. College of Law, 1999. Stetson Law Review.
Kalkines v. The United States. No. 200 Ct. Cl. 570; 473 F.2d 1391. United States Court of Claims. 16 Feb. 1973.
"Hobson's Story." 2000. 25 Jan. 2006 <http://www.hobsonschoice.com/hobstory.html>.
Kalkines v. The United States. No. 200 Ct. Cl. 570; 473 F.2d 1391. United States Court of Claims. 16 Feb. 1973.
Kedigh, Kathleen A. "Employee Misconduct Investigations: Getting to the Truth Without Getting into Trouble." Journal of the Missouri Bar (2005).
Miranda V. Arizona. No. 384 U.S. 436. U.S. Supreme Court. 13 June 1966.
National Labor Relations Board v. Weingarten. No. 420 U.S. 251. U.S. Supreme Court. 19 Feb. 1975.
Slochowere v. Board of Higher Education of New York City. No. 350 U.S. 551; 76 S.Ct. 637; 100 L. Ed. 692. Supreme Court of the United States. 9 Apr. 1956.
Spevack v. Klein. No. 385 U.S. 511. United States Supreme Court. 16 Jan. 1967.
William D. Evans, II, M.S., J.D., A.C.P
President, Poly-tech Associates, Inc.
William D. Evans, II, Co., L.P.A.
1185 South Main Street
Akron, OH 44301
Public and private workplace investigative and human resource consultant.