Kent County Deputy - Kent County Law Enforcement Association - Garrity Rights and the Right to Union Representation

Garrity Rights and the Right to Union Representation

Thursday, 14 February 2008

By Frank A. Guido, POAM General Counsel

The right to union representation in an employer conducted meeting or interview was established in the landmark decision in NLRB v J. Weingarten, Inc., 420 US 251 (1975). The Court held that an employee has a statutory right to insist on the presence of a union representative in an interview which the employee reasonably believes might result in disciplinary action. While the Weingarten decision dealt with the National Labor Relations Act (NLRA) and its application to the private sector, the principle has been adopted and applied to public employee rights under PERA by the Michigan judiciary and MERC. Regents of the University of Michigan v Local 1583 AFSCME, 1977 MERC Lab Op 496; Wayne-Westland Education Association v Wayne-Westland Community Schools, 176 Mich App 361, 439 NW2d 372 (1989).

The right to union representation and assistance during an interview is founded in the employee's right to act in concert with other employees for mutual aid and protection. Section 9 of PERA, therefore, recognizes the same principle found in section 7 of the NLRA.

The purpose of union representation in an interview is to safeguard the employee's interest as well as the interest of the entire bargaining unit to insure the employer does not impose punishment unjustly. A knowledgeable union representative can assist the employer by listing favorable facts which an inarticulate or fearful employee may omit. E.I. DuPont DeNemours, 289 NLRB 627 (1988). There are two threshold requirements that must exist to invoke the Weingarten right: (1) The employee must have a reasonable belief the interview may lead to discipline, and (2) The employee must demand a union representative.

Applying the first requirement, the employer's statement of intention is controlling. When an employee is called in for a meeting without a union representative, the employee should ask whether it is about anything that could possibly lead to discipline. If the employer responds in the affirmative or responds in away that allows for the possibility of discipline resulting, the employee should demand a union representative. If the employer responds that there is no possibility that the meeting will result in discipline, then the Weingarten right does not apply since the assurance of the employer negates existence of a reasonable belief that discipline may result.

Under the first requirement, the threatened discipline must be of the employee, not discipline of another employee. There is no Weingarten right when the employer is interviewing an employee about another employee who is subject to possible discipline. The "reasonable belief" standard which determines the propriety of an employee's request for union representation, is not applicable to an employer giving of instruction, training, or correction of work technique, Weingarten, 420 US at 257-58; giving of notice of discipline, Baton Rouge, 246 NLRB 995 (1979) [Note: Due process rights at termination, Cleveland Board of Education v Loudermill, 470 US 532 (1985).]

The selection of a particular representative is the right of the employee. The employer may not designate its preference of which union representative can appear. City of Fraser, 1992 MERC Lab Op 279. Where a union representative is not immediately available, the employee does not waive the right to have union representation, City of Fraser, 1993 MERC Lab Op 304; Supervalue Xenia, 236 NLRB 1581 (1978). The employer's denial of an employee's representative of choice is not a violation of PERA if the demand is for a representative from a far-away worksite and other representatives are readily available. City of Muskegon, 1994 MERC Lab Op 92.

POAM has been at the forefront of fighting for Weingarten representation rights. For example, in Township of Redford, 1984 MERC Lab Op 1056 an interview was being conducted by the Civil Rights Commission in the presence of the employer with questioning by the employer's attorney. The employer denied a request for a union representative which was a direct violation of PERA. The violation of PERA occurred despite discipline not issuing to the employee.

In other decisions it has been held that an employee is not entitled to a union representative where meetings were held for the purpose of obtaining written statements and the employee was given several days to prepare responses. No questions were asked to the employee during the meeting, hence a "reasonable belief" was absent. Flat Rock, 1996 MERC Lab Op 455. Where an employee was subjected to a sergeant's loud and threatening manner and the sergeant took offense to a question raised by the officer during the meeting, the employee possessed a reasonable belief the sergeant intended to discipline, therefore, the officer was entitled to a representative. Charter Township of Clinton, 1995 MERC Lab Op 415.

An employee has a right to seek union representation upon realizing during the course of an investigation that he is not a mere witness but the target of an investigation, even though the request was not made at the inception of the interview. Penn-Dixie, 253 NLRB 91 (1980). Once an employee makes an initial request for a union representative, it need not be renewed in subsequent interviews. Ball Plastics, 257 NLRB 971 (1981).

The right to union representation also exists where an employer has made only a tentative decision to impose discipline prior to an interview. Ohio Masonic Home, 251 NLRB 606 (1980). The announcement by an employer prior to a meeting of the intention to discharge an employee, which results in further questioning of the employee concerning the incident during the course of a meeting which results in institution of lesser discipline, still entitles the employee to union representation. EPG Industries, Inc., 251 NLRB 1146 (1980).

A meeting scheduled to inform an employee of discipline would not prohibit entitlement to union representation where, during the course of the meeting, the employer advised of its intent to discuss the conduct, thereby suggesting the employee respond, which invoked a reasonable fear that additional discipline might be imposed upon the attempt of the employee to defend his actions. City of Kalamazoo, 1996 MERC Lab Op 556.

Members are encouraged to assert their Weingarten right due to the valuable protection it affords:

The union representative can serve as a witness to prevent the giving of a false account of the interview.
The union representative can object to intimidating or confusing questions.
The union representative can warn an employee against losing his or her temper.
The union representative can raise extenuating factors at the conclusion of the interview.

When the right to union representation exists, the next question is what is the role of the union representative.

The Union representative is not allowed to interfere with questioning by answering on behalf of the employee. City of Oak Park, 1995 MERC Lab Op 576. In NLRB v Southwestern Bell Telephone Company, 730 F2d 166 (5th Cir, 1984), it was held that a union representative must be afforded an opportunity to participate in the investigatory interview, however, the meeting is not to be transformed into an adversary contest. An employer may insist that the union representative not answer questions put to the employee, however, the representative is allowed to consult with the employee and is permitted at the end of the interview to make additions, suggestions or clarifications. In addition, the employee cannot be prohibited from consulting with the representative during the interview. Southwestern Bell Telephone Company v NLRB, 667 F2d 470 (5th Cir, 1982).

Removal of a union representative from an interview subsequent to advice to an employee to only answer questions once, is not a violation of representation where such rigid limitation converts the interview into a formalized adversarial forum contrary to Weingarten. The representative does have a right to object to questions which may reasonably be construed as harassing. New Jersey Bell Telephone Company, 308 NLRB 277 (1992).

A representative during an interview has a right not only to be present but also to participate. As a result, an employer improperly advised a union representative that he was not allowed to speak but could only write notes and whisper in the employee's ear. Saginaw Township, 1989 MERC Lab Op 1158. Where an employer advised the union representative that his presence was only a courtesy and that the representative had to remain silent and could not interrupt, but had to sit down or be put out, the employer was deemed to have committed an unfair labor practice. Citing National Labor Relations Board decisions under Weingarten, an ALJ held that preventing a union representative from participating or ordering a representative to remain silent conflicts with the Weingarten rule, which contemplates meaningful representation as the role of the representative is to provide assistance and counsel to employees. City of Detroit Recreation Department, 1990 MERC Lab Op 388.

As a matter of practice, POAM recommends that an employee always demand union representation as many employers will allow representation even in situations where no discipline is contemplated. Where representation is denied under questionable circumstances, POAM will consider filing an unfair labor practice charge. In addition, the union representative and employee should be aware of the implementation of Garrity rights during the interview process and be ready to assert the Garrity protection where appropriate.

Garrity Right: Protection and Prohibition Triggered by Compulsion

Why employers and labor unions get it wrong

By FRANK A. GUIDO
POAM General Counsel

A recent article, Take the Garrity Quiz, Do You Know Your Rights?, which appeared in the Winter 2004-2005 edition of The Peace Officer , a publication of the Fraternal Order of Police, has raised concern amongst POAM members who have been confronted by employer representatives touting the article as a vindication of their interpretation of Garrity .

At the request of POAM, a memorandum, consisting of a detailed legal opinion, was prepared analyzing the article and exposing its erroneous conclusions. The legal opinion is reproduced here in its entirety:

MEMORANDUM
I. Introduction
Having reviewed the article, Take the Garrity Quiz, Do You Know Your Rights?, it is my legal opinion that reliance should not be placed on the conclusions reached, as they misrepresent rights emanating from Garrity and its progeny. The entire POAM membership and, in fact, the entire law enforcement community, should be warned that many of the conclusions within the article are incorrect, consequently a risk exists that short-sighted employer representatives may attempt to use the inaccurate representations against the interest and rights of our law enforcement brethren. To properly expose the author's misunderstanding, requires a thorough analysis of the Garrity decision and subsequent United States Supreme Court decisions, which are referred to as the progeny of Garrity . For purpose of this legal opinion, where reference to Garrity is made, it specifically means Garrity and its progeny.

II. Analysis of Garrity and its Progeny
In Garrity v New Jersey , 385 US 493 (1967), the U.S. Supreme Court addressed a law enforcement officer's dilemma of having to choose between maintaining employment versus exercise of the Fifth Amendment privilege against self-incrimination. In Garrity , police officers were interrogated about an alleged conspiracy to fix traffic tickets. The officers were warned their answers might be used against them in a criminal proceeding, they had the right to remain silent, but if they asserted the right, they would be subject to termination. The officers answered questions and the information provided was used against them in subsequent criminal proceedings on conspiracy to obstruct the administration of traffic laws. The officers were convicted. The U.S. Supreme Court reversed the convictions, finding a Fifth Amendment violation, stating that "the choice imposed on petitioners was one between self-incrimination or job forfeiture." Garrity , 385 at 496. The Fifth Amendment to the United States Constitution provides, in relevant part:

No person ... shall be compelled in any criminal case to be a witness against himself ... (Emphasis supplied). The Fifth Amendment privilege, therefore, includes the "right to remain silent," as well as immunity from use in a criminal proceeding of information which is compelled by government. Lefkowitz v Turley , 414 US 70 (1973) [citing Kastigar v United States , 406 US 441 (1972)]. The Fifth Amendment privilege is applicable to the states through the Fourteenth Amendment. Malloy v Hogan , 378 US 1 (1964). The Fifth Amendment privilege against self-incrimination, therefore, protects an individual from being forced to give information which may later be utilized against him in a criminal proceeding. Kastigar , 406 US at 444.

The Court in Garrity , 385 US at 497, also 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 to remain silent.

The Court further remarked at 498: Where the choice is "between the rock and whirlpool," duress is inherent in deciding to "waive" one or the other. The Court in Garrity made it clear that the Fifth Amendment privilege is never forfeited by accepting public employment as a law enforcement officer, stating at 499-500:

Our question is whether a state, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.

We held in Slochower v Board of Education , 350 US 551, that a public school teacher could not be discharged merely because he had invoked the Fifth Amendment privilege against self-incrimination when questioned ...

We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights. (emphasis supplied).

In conclusion, the Court in Garrity at 500, stated: We now hold 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, that it extends to all, whether they are policemen or other members of our body politic.In another case issued the same day as

Garrity , the Court continued the Garrity analysis, stating that an individual cannot enjoy the constitutionally-guaranteed, unfettered exercise of the right to remain silent, if there may be a penalty for asserting that right, Spevak v Klein , 385 US 511 (1967).

The reverse situation, or flip side to Garrity , is where an officer, under threat of discipline, is compelled to give information, and at the same time is compelled to waive the immunity of the privilege, yet refuses to give information and by not giving up the privilege, is thereafter disciplined. The U.S. Supreme Court addressed this reverse scenario in Gardner v Broderick , 392 US 273 (1968).In

Gardner , a police officer was subpoenaed to testify before a Grand Jury investigating police corruption and bribery stemming from illegal gambling. The officer was advised that if he did not waive his right to remain silent by signing a waiver of immunity from use of information given in response to questions, he would be discharged. Unlike Garrity , in which the threat of discharge led to the officer making a statement, in Gardner the officer asserted his Fifth Amendment privilege against compelled self-incrimination and refused to waive that immunity and, therefore, refused to make any statement, which resulted in discharge. The Court concluded that a "chilling effect" on constitutional rights existed, reasoning that an unsuccessful attempt to coerce is just as unconstitutional as a successful one. Gardner , 392 US at 279. The Court held that disciplining an officer for asserting the privilege against compelled self-incrimination is just as much a Fifth Amendment violation as coercing the officer into making a statement under threat of dismissal, and then using the statement against the officer in a criminal proceeding. The Court in Gardner additionally stated at 277-278:

It is true that Garrity related to the attempted use of compelled testimony. It did not involve the precise question which is presented here: namely, whether a State may discharge an officer for refusing to waive a right which the constitution guarantees to him.... He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination ... He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege.The United States Supreme Court then provided language which has long since become the guidepost in internal affairs investigations of law enforcement officers relative to

Garrity rights, stating, Id at 278:

If appellant, a policeman, has refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to use of his answers, or the fruits thereof in a criminal prosecution of himself, Garrity v State of New Jersey , supra, the privilege against self-incrimination would not have been a bar to his dismissal. (emphasis supplied).This statement by the Court made clear that where a public employer seeks information, it may order it under threat of discipline, so long as the information sought is specific, direct, and narrowly related to performance of official duties and the individual is not compelled to waive the immunity of the privilege "with respect to use of his answers or the fruits thereof in a criminal prosecution of himself." As such, the Court in

Gardner declared that if a waiver is compelled and a refusal to speak occurs, termination for refusal to waive the immunity is constitutionally defective, whereas if the waiver is not compelled and refusal to speak occurs, termination for such refusal to answer questions (assuming they are specific, direct and narrowly related to performance of official duties) will not be deemed constitutionally defective. In stirring language, the Court in Gardner concluded, Id at 279:

In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. (emphasis supplied).

Subsequent to Garrity and Gardner , the U.S. Supreme Court in Lefkowitz v Turley , 414 US 70, 84 (1973) (herein referred to as " Lefkowitz I ") stated: ... the State must recognize what our cases hold: that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence, hence, if answers are to be required in such circumstances, states must offer to the witness whatever immunity is required to supplant the privilege and may not insist that the employee ... waive such immunity. (emphasis supplied).The Court's emphasis that the "state must recognize what our cases hold" was a clear message that

Garrity and its progeny are to be adhered to and not thwarted by argument that government's operational interests supersede the employee's constitutional right. As emphasized by the Court, balancing of those interests is afforded so that government can obtain information, yet the individual is protected by the immunity of the privilege, with respect to use of that information against the individual in a criminal proceeding.

The Fifth Amendment right is not a self-executing mechanism. Maness v Meyers , 419 US 449 (1975) [quoting Kastigar v United States , 406 US 441 (1972)].This means that an officer must invoke the privilege of the Fifth Amendment, as the privilege does not automatically attach. The Federal District Court, Eastern District of Michigan, has acknowledged this requirement in the October 24, 2001 Consent Judgment, issued by then Chief United States District Court Judge, Lawrence P. Zatkoff, in an action brought by the POAM against the Livingston County Sheriff to clarify

Garrity rights. The Court, in paragraph 1g of the Consent Judgment, stated: The Sixth Circuit has specifically held that the privilege is not self-executing and that the person claiming the privilege must affirmatively assert it. Morgan v City of Columbus , No. 92-4086, 1993, US APP LEXIS 25698 at 17-18 (6 th Cir, October 1, 1993). (emphasis supplied).

Note: the jurisdiction of the Sixth Circuit includes Michigan.

It is equally significant to recognize that assertion of the privilege is applicable "to every means of government information gathering." Selective Service System v Minnesota Public Interest Research Group , 468 US 841 (1984). As stated by the Supreme Court in Maness , "... it is very clear that the coverage of the Fifth Amendment is not to be determined by the nature of the proceeding in which it is asserted. The Fifth Amendment applies to all proceedings ... it applies to interrogation by police officers out of court. It applies across the board." Maness , 419 US at 493-494. These holdings, therefore, recognize that the privilege of the Fifth Amendment may be asserted in any information gathering setting, be it a statement, report or answer to questions. (See also, paragraph 2a of the Consent Judgment in POAM v Livingston County Sheriff .) Three years after Lefkowitz I , the Supreme Court decided Lefkowitz v Cunningham , 431 US 801 (1977) (hereinafter referred to as " Lefkowitz II "). In this decision, the Supreme Court stated:

The government has compelling interest in maintaining an honest police force and civil service, but this court did not permit those interests to justify infringement of Fifth Amendment rights in Garrity , Gardner , and Sanitation Men, where alternative methods of promoting State aims were no more apparent than here. Lefkowitz II at 808. The Supreme Court then remarked that the critical concern of constitutional infringement is the act of compulsion as opposed to the level of the penalty, stating:It is true, as appellant points out, that our earlier cases were concerned with penalties having a substantial economic impact. The touchstone of the Fifth Amendment is compulsion, and direct sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the amendment forbids (emphasis supplied).

Lefkowitz II , 431 US at 806.

Where employers and even some labor unions commit error in their application of Garrity , is the failure to understand the significance of compulsion , as well as the failure to recognize the distinction between what Garrity protects and what Garrity prohibits . These errors are manifested by an impermissible mixing of the components of protection and prohibition . While the two components under Garrity are mutually exclusive, they share a common link which triggers the constitutional protection or constitutional prohibition , being compulsion .The

Garrity protection arises, meaning that an officer has the right to assert the Fifth Amendment privilege to protect information given from use against the officer in a criminal proceeding, when compulsion exists. Compulsion is present when the employer has ordered production of information under threat of discipline . Once compulsion occurs, the officer has the right to invoke the Fifth Amendment. The Garrity prohibition also arises when compulsion occurs. Compulsion in this context is different, as it is determined by whether the employer has ordered an officer, under threat of discipline, to waive (compelled to give up) assertion of the Fifth Amendment. This compulsion triggers two prohibited results. First, if the officer involuntarily waives assertion of the Fifth Amendment and produces an unprotected statement, report or answers to questions, then the information given will be subject to suppression in a criminal proceeding if the officer is charged with a criminal offense. In addition, if the information is actually used against the officer in a criminal case, any conviction which occurs will be overturned (this is what happened in the Garrity case).

Second, if the officer refuses to waive assertion of the Fifth Amendment and the Employer issues discipline due to such refusal, then the discipline imposed will be set aside by an arbitrator or court (this is what happened in the Gardner case).

III. Summary of the Garrity Right

The legal conclusions which are derived from Garrity and its progeny as to Fifth Amendment rights of law enforcement officers are summarized as follows:

Garrity Right

1. Definition of the right:

A. When an officer is compelled (ordered under threat of discipline) to produce information (statement, report or answer to questions), the information produced is protected from use against the officer in a criminal proceeding, if the officer invokes the protection of the Fifth Amendment. The employer is prohibited from compelling (ordering under threat of discipline) the officer to waive assertion of the protection of the Fifth Amendment. The information may only be used against the officer in an internal proceeding.

B. The Garrity right must be interpreted as consisting of two principles, protection for an officer and prohibition against an employer . Both principles are triggered when compulsion occurs.

2. Compulsion triggers protection for an officer:

A. Compulsion: An employer orders an officer, under threat of discipline, to produce a statement, report or answers to questions.

B. Protection: When compulsion occurs, an officer has the constitutional right to assert the protection of the Fifth Amendment privilege against self-incrimination, to protect the information produced from use against the officer in a criminal proceeding (paragraph 2a, Federal Court Consent Judgment - POAM v Livingston County Sheriff , October 24, 2001). note: When an officer invokes the protection of the Fifth Amendment, the employer may only refuse acceptance of the information provided if it rescinds the order made under threat of discipline to produce the information, thereby removing the trigger of compulsion.

Without an order and threat of discipline existing, the officer is at liberty to refuse production of information, as no employment sanction may attach. note: If an officer wants to protect a statement, report or answers to questions and the employer's representative is without authority to issue an order under threat of discipline, the officer retains the right to invoke the Fifth Amendment and to remain silent, until such time as compulsion occurs (someone who is empowered with authority orders production of information under threat of discipline).

3. Compulsion triggers prohibition against an employer:

A. Compulsion: An employer orders an officer, under threat of discipline, to waive (give up) assertion of the privilege.

B. Prohibition: The employer is prohibited from this form of compulsion as it cannot order an officer, under threat of discipline, to waive the immunity (protection) of the asserted Fifth Amendment privilege against self-incrimination with respect to a submitted statement, report or answers to questions (paragraph 2e, Federal Court Consent Judgment - POAM v Livingston County Sheriff , October 24, 2001). C. Result of prohibition: first result: If an employer orders a report, statement or answers to questions under threat of discipline and the officer's attempt to invoke the Fifth Amendment protection under Garrity is met by an employer threat of discipline if the officer does not waive (compelled to give up) assertion of the Garrity protection, then the information given by the officer as a result of the compelled waiver is deemed obtained in violation of the Fifth Amendment privilege against self-incrimination.

The compulsion in this situation triggers the Garrity prohibition, resulting in suppression of the information or overturning of a conviction in the event of a criminal proceeding against the officer ( Garrity holding). second result: If an employer orders a report, statement or answer to questions under threat of discipline and the officer asserts and refuses to waive assertion of the Garrity protection, despite an employer threat and/or subsequent imposition of discipline for such refusal to waive the Garrity protection, then adverse personnel action (for example: suspension, demotion or discharge) is deemed a constitutional violation, due to the chilling effect upon the Fifth Amendment privilege ( Gardner holding). The compulsion in this situation triggers the Garrity prohibition, resulting in the discipline being overturned.

holding). second result: If an employer orders a report, statement or answer to questions under threat of discipline and the officer asserts and refuses to waive assertion of the protection, despite an employer threat and/or subsequent imposition of discipline for such refusal to waive the protection, then adverse personnel action (for example: suspension, demotion or discharge) is deemed a constitutional violation, due to the chilling effect upon the Fifth Amendment privilege (holding). The compulsion in this situation triggers the prohibition, resulting in the discipline being overturned.As a result of the constitutional violation, just cause for discipline would not exist. As a side note, this is similar to the circumstance which existed in the POAM v Livingston County Sheriff federal lawsuit which resulted in the Consent Judgment for POAM.

The collateral arbitration decision applied the federal court decision and determined that just cause for discipline did not exist, therefore, the employer's issuance of a suspension and transfer due to the officer's assertion of the Garrity protection and his refusal to waive the protection, was overturned.

4. Garrity Warning:

If an officer is compelled to give information (order and threat of discipline to give information) but is not compelled to waive assertion of the Garrity protection (no order and threat of discipline to waive assertion of Garrity ), and the officer thereafter refuses to answer questions specifically, directly, and narrowly related to official duties, any adverse personnel action taken against the officer is not unconstitutional. note: This is the so-called Garrity warning. In this situation, the employer recognizes the Garrity protection may be asserted such that information produced cannot be used against the officer in a criminal proceeding but only in an internal proceeding, however, the officer refuses to give information.

If an officer is compelled to give information (order and threat of discipline to give information) but is not compelled to waive assertion of the protection (no order and threat of discipline to waive assertion of protection may be asserted such that information produced cannot be used against the officer in a criminal proceeding but only in an internal proceeding, however, the officer refuses to give information.

Discipline in this situation, absent other legitimate reasons, is not an unconstitutional act on the part of the employer.

5. Employer's control versus Officer's right:

An employer controls whether compulsion occurs which triggers the protection for the officer and the prohibition against the employer. The invoking or asserting of the Garrity protection, however, is exclusively reserved for the affected officer, not the employer. The Garrity protection must be invoked by the officer to be effective, as the Fifth Amendment is not self-executing.

IV. Analysis of the Article

Having discussed Garrity and its progeny, I will now analyze the author's four questions and answers.

The article, after discussing a brief history of Garrity and several other decisions, poses several questions to test the readers understanding of the application of Garrity . The author then answers the questions, concluding that Garrity does not protect the individual in any of the four questions presented. Because the questions posed have minimal factual development, the author's legal conclusions are neither instructive nor beneficial to the law enforcement community. As a result, I will address each question posed, with further factual development, to determine proper application of Garrity .

The first question states:

You're called into the captain's office on short notice. The captain starts a tape recorder, tells you of a serious allegation against you, and says, "You answer me this minute, or you're gone from this department now!"

The author, in answer to the first question, concludes that Garrity does not protect the officer, stating:

The Garrity warning must be an explicit warning to give up the Fifth Amendment. A "routine order" is not considered a Garrity warning.The answer given reflects a fundamental misunderstanding of the application of

Garrity . The author not only has failed to understand that the precursor to existence of the Garrity right is whether compulsion exists, but the author has also erroneously mixed the components of protection and prohibition. The author assumes that because a Garrity prohibition issue did not arise (employer did not compel waiver of the assertion of the Fifth Amendment right), that the Garrity protection (officer's right to assert the protection that the statement cannot be used against the officer in a criminal proceeding due to compulsion) does not exist. This is an impermissible mixing of the two mutually exclusive components.

Under the facts of the first question as posed by the author, the Garrity protection exists if the employee, in response to the captain's statements, asserted the Fifth Amendment protection, since compulsion triggers assertion of the protection due to the captain's order to provide information and the threat of discipline ("You're gone from this department now!"). As a result, in answer to the first question, it is improper for the author to state that because the Garrity prohibition was not at issue (that is, no compelled waiver of assertion of the privilege), that automatically no Garrity protection existed. If, however, the author intended the facts to reflect that after the compulsion by the captain, that the officer did not assert the Garrity protection, then the proper answer to the question is that by such failure to invoke his Fifth Amendment right, the information given is not protected under Garrity . The author's answer, however, does not reach that logical conclusion, instead, it only deals with the component of the Garrity prohibition, which is an irrelevant consideration, given the absence of facts establishing that the captain was compelling (ordering under threat of discipline) waiver of the Garrity protection.

protection, then the proper answer to the question is that by such failure to invoke his Fifth Amendment right, the information given is not protected under . The author's answer, however, does not reach that logical conclusion, instead, it only deals with the component of the prohibition, which is an irrelevant consideration, given the absence of facts establishing that the captain was compelling (ordering under threat of discipline) waiver of the protection.The author's answer to the first question contains several additional errors. Any order, whether characterized as "routine" or not, to give information, made in conjunction with a threat of discipline, constitutes compulsion, which triggers the Garrity protection, allowing the officer to invoke the Fifth Amendment, thereby protecting the compelled information from use against the officer in a criminal proceeding. What is significant, therefore, is not the existence of a routine order or one of more stringent directive but, instead, the compulsion which exists (order plus threat of discipline) which gives rise to the Garrity right.

If the author's first question and answer are an attempt to distinguish between an "express" threat of discipline versus an "implied" threat of discipline, the author is addressing circumstances present in U.S. v Indorato , 628 F2d 711 (1 st Cir, 1980). In Indorato , a police officer was convicted of conspiracy to commit an offense against the United States, theft of property and perjury. During the investigation, he responded to questions. The statements were then used against him at his criminal trial and he was convicted. On appeal, the defendant claimed violation of the Fifth Amendment by use of the statements against him, citing Garrity . The First Circuit held that only an implied, not overt or express, threat of dismissal existed for refusal to obey an order of the supervisor. As a result, the Defendant's statements were admissible as he was not subjected to an overt threat, nor did he even assert the privilege. See also: People v Jobson , 205 Mich App 708 (1994) (police officer not threatened with discharge when responding to investigatory questions); People v Coutu , 235 Mich App 695 (1999) (relying on Indorato , threat of discharge was only "implied" when responses were given during departmental investigation); and People v Wyngaard , 462 Mich 659 (2000) (prison inmate not threatened with penalty for refusal to speak; statements made do not violate the Fifth Amendment privilege). Because the facts of the author's first question are so deficient, a determination of implied versus express threat issues is of little significance. In any event, Indorato , as held by the Federal District Court, Eastern District of Michigan in POAM v Livingston County Sheriff , is limited to its own facts. ( Federal Court, July 11, 2001, ruling on motions for summary judgment).Based on the aforesaid, the answer given to the first question, as posed by the article, provides no guidance to law enforcement in determining application of

Garrity .

The second question posed in the article states as follows: You're on a multi-department apprehension team, and the suspect has been injured. A supervisor from a different department conducts a formal interview with all team members. He begins your interview by carefully reading the Garrity warnings.The author to the article, states in answer to the second question: The

Garrity warnings involve a threat of discipline, up to discharge. Only your employer can discipline you, not an officer from another agency. While the answer to the second question is somewhat accurate, it fails to properly instruct law enforcement officers as to how to handle the situation posed. Only an employer, or those acting under delegated authority of an employer, can create the compulsion necessary for an officer to invoke the Garrity protection. More significant, however, is that officers working in a multi-department setting cannot be compelled to provide information from individuals, regardless of rank, who have no employment, supervisory or management, authority over the officer.

Since it is presumed the inquiry in the second question is not a criminal investigation, there is not even a necessity to assert the Fifth Amendment, as the officer may simply refuse to answer any questions, as no disciplinary employment sanction can be imposed or sustained.

The third question posed states:

Your department orders that in-car cameras and microphones will be turned on at all times. Each day, you record a statement that you use the tape because you are under a direct order, but you do not surrender Garrity .

The author's answer to the third question states: Michigan courts have ruled that all police reports and documentation kept in the normal course of business are not protected by Garrity .The author has given an answer that does not address the question and is, for many reasons, misleading. The question is so factually deficient that a broad answer as to whether a

Garrity right is at hand is not instructive. If, in fact, the department order of in-car cameras and microphones includes a direct representation to officers that they will be subjected to discipline for failure to comply with such orders, then the author's broad answer that no Garrity right exists is incorrect, to the extent of any statements made (but not the physical actions engaged in which are visually recorded). The author's answer that "all police reports and documentation kept in the normal course of business are not protected by Garrity ," is only correct if what is meant by the term "normal course of business" is that such report did not arise from a direct order under threat of discipline, such that an absence of compulsion exists. If the report or statement is compelled, then it is most certainly protected by Garrity if the officer asserts the Fifth Amendment privilege. It is at this juncture that "protected by Garrity " as referenced by the author's answer should be discussed.

The author appears to be confusing "release" of a Garrity statement to third parties with "use" of a Garrity statement against an officer in a criminal proceeding. As a matter of law, a Garrity statement can be released through discovery in a civil proceeding or request of a prosecutor. Garrity does not protect release of a statement to a third party, instead it protects against use of the statement against the officer in a criminal proceeding. This is another critical distinction which the author does not identify nor apparently recognize. This lack of understanding, unfortunately, also forms the underpinning to the legal action in the "Garden City" matter referenced in the article. POAM predicted and cautioned, prior to filing of the lawsuit in Garden City, that it would foster confusion as to the Garrity right, especially since rights under Garrity had already been clearly set forth in the Federal Court decision in POAM v Livingston County .

The fourth and last question posed states: You are ordered to write a statement concerning an allegation against you that involves missing evidence. You attach a "rights" sheet to the top of the statement, clearly stating that you surrender no rights under Garrity .

The author's answer to question four states: Again, Michigan courts have decided that police reports and documentation kept in the normal course of business are not protected by Garrity . Only the employer can invoke the Garrity warnings and threaten your discharge; you cannot self-invoke Garrity .The answer to the fourth question is patently incorrect, assuming the order to write the statement was made under threat of discipline. If the order included the threat of discipline, compulsion exists, triggering the officer's right to assert the

Garrity protection. The author's answer is also misleading as it implies that the Garrity right can only be invoked by an employer. While it is correct to assert that an employer controls whether compulsion (order and threat of discipline) occurs, once compulsion does exist, the employee has the right to invoke the Garrity protection, not the employer. This is mandated, as previously indicated, in Michigan (Sixth Circuit), as the Fifth

Amendment is not self-executing and must be asserted by the person desiring the protection, not by a third party employer.

In addition, the context in which the author refers to a Garrity "warning" is misleading. The so-called Garrity "warning" is the stated recognition by the employer that it cannot compel an officer to waive assertion of the Fifth Amendment right and that the compelled information given by the officer cannot be used against him in a criminal proceeding, only in an internal departmental matter. The misleading aspect of the author's use of the term "warning," is the false impression that giving of a "warning" is tantamount to the employer having control over the actual invoking of the Garrity protection. The term "warning" is not interchangeable with the constitutional right to assert or "invoke" the protection which Garrity affords under the Fifth Amendment, which is reserved exclusively to the officer, not the employer. It is this confusion of terms and concepts which has caused some employers to misconstrue application of the Garrity right.

Without debating semantics, therefore, the employer only controls Garrity to the extent it decides, in the first instance, that the order to produce a statement or report or to answer questions, is combined with a threat of discipline for failing to comply. Once the employer goes down the path of compulsion, it has triggered the right of the officer to assert the protection of the Fifth Amendment as set forth in Garrity . It matters little, therefore, to debate if the employee or employer has the right to invoke Garrity . What is significant is if compulsion exists, thereby affording the officer the right to assert the protection of the Fifth Amendment privilege to any information given and prohibiting the employer from compelling waiver of the asserted protection.

V. POAM's Leadership Role in Garrity Right

Issues

After addressing the four questions, the article continues with a discussion of an incident involving the Garden City Police Department. POAM's membership and all interested parties are directed to the POAM web site, "poam.net," for a thorough discussion of the Garden City matter and the unfortunate actions of several misguided labor organizations and the danger their equally misguided litigation has brought to the Garrity right issue. It is fortunate that POAM has taken the leadership role in clarifying and fortifying the Garrity right in the Federal Court decision in POAM v Livingston County Sheriff , the substance of which can also be found on the POAM web site. POAM, as part of its comprehensive service to its membership, conducts both seminars and in-service training to instruct the membership when and how to assert the Garrity protection, using the form recommended by POAM. This form requires identification of the supervisor who has the authority to create the compulsion allowing the officer to invoke the Garrity protection. Our local representatives are instructed to clarify with a supervisor that the affected officer is being ordered to submit information and that the failure to do so will result in discipline up to and including discharge. Upon that procedure being followed, the existence of such compulsion triggers the right to invoke the Garrity protection. If the employer, through its supervisory personnel, does not order the report, statement or answer to questions under threat of discipline, then the Garrity right will not be present. In that situation, however, the officer will not be at risk of discipline if a refusal to give a statement, report or answer to questions occurs, due to the absence of a specific order and threat. If the officer gives information, however, it will be deemed voluntary and may be used in an internal as well as criminal proceeding.

It is difficult to comprehend that the article has been written in support of the law enforcement community.

To the contrary, the article reads as a management oriented propaganda piece giving a slanted interpretation of Garrity which, to the credit of even the vast majority of public employers, is not an accepted interpretation.Representations by the author which suggest that "only the employer can invoke ...

Garrity " and that officers "cannot self-invoke Garrity " are misleading, at best.

While it is true that an officer cannot simply assert the protection of Garrity absent compulsion by the employer, the statement remains misleading, as it fails to state the equally obvious standard that an officer has the right to invoke the Garrity protection (as the Fifth Amendment is not self-executing) when compulsion exists.The article is, in several respects, a mirror image of the incorrect position taken by a few public employers who claim that even after they have ordered a statement under threat of discipline, only they can invoke

Garrity , not the employee. This is, quite simply, incorrect. It flies in the face of the Constitution, Garrity and its progeny, as well as basic logic. It is the same tortured approach which was attempted by the Livingston County Sheriff, resulting in the federal court action in which POAM obtained the first Consent Judgment in the state delineating not only rights under Garrity ( The components of protection and prohibition triggered by compulsion ), but also the actual procedure to be followed.

Paragraph 2 a through f of the Consent Judgment, which can be found on the POAM web site, specify the exact step-by-step procedure to invoke Garrity . The procedure codifies POAM's own language found on its membership card which should be attached to a compelled statement or report.

VI. Conclusion

The article serves little purpose other than to draw a clear distinction between those labor organizations, who for self-serving purposes, paint a dire picture of Garrity to insulate themselves from scrutiny for failing to fight for the protection Garrity affords, and those organizations, such as POAM, who have been at the forefront of protecting and enhancing the Garrity right.

While the article makes a laudable statement concerning proposed legislation, it misses the more important point of instructing law enforcement officers how to protect themselves in the here and now. Every law enforcement officer, whether POAM member or not, should keep a copy of the Consent Judgment from the Federal Court, as it delineates the scope of the Garrity right and how to properly put it into effect.

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