Garrity v. New Jersey HOW TO INVESTIGATE PUBLIC EMPLOYEES

1. Garrity v. New JerseyHOW TO INVESTIGATE PUBLIC EMPLOYEES Kristi Shute Indiana Office of Inspector General

2. Contact Information Kristi Shute kshute@ig.in.gov (317) 234-3993 Office of Inspector General 315 West Ohio Street Room 104 Indianapolis, IN 46202 www.in.gov/ig

3. How to Investigate Public Employees The Bottom Line: A public employee’s statement, given during an internal investigation, cannot be used against him in a later criminal proceeding.

4. Garrity v. New Jersey: How to Investigate Public Employees The Run-down: • Police Officers questioned re: fixing traffic tickets • Told if they refused to answer, faced termination • When they answered questions, answers were used against them in criminal proceedings

5. Supreme Court said: No! • The choice between: • Losing your job OR • Self-incrimination Constitutes coercion! Therefore, the answers were not voluntary!

6. Garrity v. New Jersey, cont Protection of the Individual under the 14th amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office. Applies to all members of the body politic! i.e. public employees

7. Core Principles: • Public employee • Explicit threat of loss of job • Criminal proceeding

8. Gardner v. Broderick • Police Officer appeared under Grand Jury subpoena • Refused “waiver of immunities” • Fired for refusal to waive immunity

9. Core Principles • Unless given use immunity, cannot be fired for refusal • If use immunity given, may be fired if continued refusal to answer • Specific, directed questions

10. Uniformed Sanitation Men v. NY • Sanitation employees summoned to testify re: corruption • Fired when refused to relinquish 5th amendment rights

11. Core Principles • Public employees subject to dismissal if refuse to account for performance of their public trust, after proper proceedings, which do not involve attempt to coerce relinquishment of constitutional rights. • Because state wished to use answers for criminal proceeding, and not merely account of public trust, employees could not be dismissed

12. Lefkowitz v. TurleyUS Supreme Court • NY statutes required public contracts to provide that if contractor refuses to waive immunity or testify concerning his state contracts, existing contracts may be cancelled & could be disqualified for 5 years

13. Lefkowitz v. TurleyUS Supreme Court • NY licensed architects refused to sign immunity waivers for grand jury subpoena • Contracting authorities notified of the conduct • Architects challenged statutes as violating privilege against compelled self-incrimination

14. Core Principles • Extends Garrity to contractors

15. US v. McKinney (Eastern District of PA) • Physician charged with distribution of a controlled substance • Appeared before ALJ to address the suspension of his DEA registration, testified as an adverse witness. • Registration formally revoked.

16. Core Principles • Choice: Assert 5th amendment and ALJ could draw negative inference, or testify and risk incriminating statements • Distinguishable: in Garrity refusal to waive alone resulted in loss of employment • Potential silence only one factor to be considered by ALJ when making determination

17. US v. McKinney, cont • Notice: Not a public employee involved

18. US v. Lamb(Northern District of WV) • Fire Dept Employee questioned by federal agency after supervisor told him they were downstairs • Employee answered questions • Then argued for suppression of answers based on Garrity

19. Core Principles • Interrogation did not violate Garrity: • Statements not obtained under threat of removal from fire department position • Neither agents nor Supervisor mentioned to defendant that refusal to answer would result in removal from employment

20. People v. CareyIllinois Appellate Court • Police Officer charged with DUI • Argued to bar admission of breath test results arguing that he provided sample only under threat of termination

21. Core Principles • Fifth Amendment applies only to testimonial or communicative evidence, not physical evidence • Bisard

22. Harmon v. OgdenUtah Court of Appeals • Fire Dept Capt accused of sexual harassment • 2 hearings held resulting in termination

23. Core Principles • Garrity does not protect public employees from having to answer questions concerning their conduct at their own termination hearings in non-criminal investigation

24. OIG Criminal Case • FSSA Caseworker • D interviewed separately: OIG special agents then agency personnel

25. What Could Happen? • Motion to Suppress • “Fruits” inadmissible also

26. Impact on Agency: • Internal investigation? • Criminal investigation? • Training key

27. The Bottom Line • A public employee’s statement, given during an internal investigation, cannot be used against him in a later criminal proceeding. • Keep internal and criminal investigations separate

28. Questions? Thank you! Office of Inspector General 315 West Ohio Street Room 104 Indianapolis, IN 46202 (317) 232-3850 www.in.gov/ig