A Firefighter’s Right to Remain Silent

No aspect of firefighter discipline is more misunderstood, misquoted and maligned than the “Garrity Rule.” Yet the Garrity Rule and the rights it provides are vitally important for firefighters, union representatives and fire service leaders to...


The following is a quote from an appeals court case upholding the termination of a fire captain who refused to answer questions during a disciplinary proceeding: “(Captain X) argues that his failure to respond to specific inquiries by the hearing panel was an invocation of (his Garrity...


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The following is a quote from an appeals court case upholding the termination of a fire captain who refused to answer questions during a disciplinary proceeding:

“(Captain X) argues that his failure to respond to specific inquiries by the hearing panel was an invocation of (his Garrity rights)…and that the commission failed to recognize or address his right to invoke his privilege to remain silent. Instead, he asserts, the commission wrongly considered his actions to be indicative of his dishonesty. However, (Captain X) misinterprets Garrity, which has no bearing on this matter. …Garrity does not protect public employees from having to answer questions concerning their conduct at their own termination hearings in a noncriminal investigation.”

 

Introduction

No aspect of firefighter discipline is more misunderstood, misquoted and maligned than the “Garrity Rule.” Yet the Garrity Rule and the rights it provides are vitally important for firefighters, union representatives and fire service leaders to understand. Firefighters have lost their jobs and fire department investigations have been mishandled – all because those involved misunderstood the Garrity Rule.

To understand the Garrity Rule, and Garrity rights, we need to review some basic concepts about the nature of the employment relationship and the origins of the Garrity Rule itself. It is helpful if we review this information in light of five common misunderstandings about a firefighter’s right to remain silent.

• Common misunderstanding 1 – A firefighter has a right to remain silent any time he or she chooses. An employment relationship is essentially a contract between an employer and an employee. While often the exact terms of the agreement are not clearly spelled out, certain fundamental concepts are embodied in the relationship. Contrary to popular belief, an employer has a legitimate right to ask an employee questions related to his or her work, and an employee who refuses to answer legitimate questions posed by his or her employer may be disciplined for insubordination. Answering job-related questions is not optional and insubordination for refusing to answer legitimate questions about a job-related matter may result in termination.

However, when a public employee such as a municipal firefighter is under an obligation to answer job-related questions, and the answers may potentially implicate the employee in criminal conduct, a constitutional dilemma arises. The 5th Amendment to the U.S. Constitution provides that: “No person…shall be compelled in any criminal case to be a witness against himself.” The 5th Amendment is the basis for our constitutional right to remain silent. So how does that right square with the obligation of a public employee to answer an employer’s legitimate questions?

In 1967, the U.S. Supreme Court decided the case of Garrity v. New Jersey, 385 U.S. 493 (1967). Garrity involved police officers who were accused of fixing traffic tickets. During the investigation, the officers were informed of their right to remain silent, but they also were told that if they remained silent they would lose their jobs. The Supreme Court ruled it is unconstitutional for a police department to order police officers to answer questions under threat of losing their jobs and then use the answers to incriminate them. The department, as an employer, has a choice: compel the employee to answer questions, in which case those statements may not be used in the criminal prosecution of the individual officer, or allow the employee the right to remain silent without penalty or threat of penalty.

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