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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While Garrity involved police officers, the principle applies equally to public-sector firefighters and other public employees. Garrity applies only when public employees are asked legitimate job-related questions by superiors and when the answers may incriminate them in a criminal matter. A firefighter in a Garrity situation has the right to remain silent, but only to the extent he or she is not ordered or compelled to answer questions. If compelled to answer legitimate job-related questions, the firefighter must do so. Any information resulting from the compelled questioning may not be used in a criminal prosecution against the firefighter. This limitation on the use of compelled information in a criminal case is often referred to as immunity.
There is a limitation on the ability of an employer to compel answers from an employee when the employee is represented by a duly authorized collective-bargaining representative. Known as the “Weingarten Rule,” an employee who reasonably believes the questioning may lead to disciplinary action, and who requests the presence of a union representative, can refuse to answer questions until he or she has had the opportunity to confer with a union representative.
The Weingarten Rule arose out of the U.S. Supreme Court ruling in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The Court upheld the National Labor Relation Board’s ruling that an employer commits an unfair labor practice if it denies an employee’s request for union representation under such circumstances. The NLRB’s penalty for the unfair labor practice is the same today as it was in 1975: the employee cannot be disciplined. States have universally applied Weingarten to public employees.
Thus, firefighters who have a duly authorized collective bargaining representative have the right to have a union representative present during questioning. The right must be exercised by the firefighter, and with the exception of states that have a firefighter bill of rights, the department is not obligated to warn the firefighter about the right prior to questioning. Once the union representative has had the opportunity to confer privately with the employee, the employee must answer the employer’s legitimate questions.
• Common misunderstanding 2 – The option to remain silent or accept immunity protection under Garrity rests with the firefighter. The Garrity case clearly states that the option to compel an employee to answer questions or be allowed to remain silent rests with the employer. When questioned, an employee may choose to invoke Garrity, but it is ultimately the employer who chooses whether to let an employee remain silent.
In some cases, an employer may decide not to compel an employee to answer questions. In such a case, the employee’s exercise of his or her right to remain silent cannot be used against the employee for any purpose. This is true even if the employer offers the employee the opportunity to voluntarily make a statement. But if the employer compels an employee to answer questions, the information may not be used in any subsequent criminal case against the employee, except for perjury. Once compelled to answer questions, the employee cannot refuse, and any refusal constitutes insubordination. Bad advice from union officials or attorneys to remain silent is not a defense.
• Common misunderstanding 3 – Once a firefighter is compelled to answer questions, the firefighter has immunity and cannot be charged with any criminal offense that he or she discloses. An employee compelled to answer questions after invoking Garrity may be charged with the crimes that are disclosed. Garrity protects the statements made during a compelled interrogation. Any such statements are entitled to the equivalent of what lawyers call “use/derivative-use immunity.” In other words, the information provided cannot be used directly by police nor used indirectly to develop other evidence in the criminal case. However, police are entitled to develop a case independently of the compelled information.
• Common misunderstanding 4 – Compelled answers cannot be used to discipline the firefighter. There is nothing in Garrity that prohibits an employer from using compelled statements to discipline an employee.
• Common misunderstanding 5 – An employee can refuse to answer questions that may incriminate him or her for having violated departmental rules. The 5th Amendment right to remain silent, and the rights recognized under Garrity, apply to cases where an employee potentially faces criminal charges. There is no constitutional right to remain silent simply because answers may lead to a disciplinary action against the employee nor because they may incriminate another employee.