It has been a while since we discussed the Garrity rule and its impact on a firefighter’s right to remain silent. The previous column, titled “A Firefighter’s Right to Remain Silent,” ran in July 2011 and explained the foundation for understanding Garrity:
“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.
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.”
The Garrity rule is complicated. Mistakes can be costly. This column will focus on one specific facet of Garrity: What constitutes a legitimate job-related question that an employer can ask and the employee is required to answer? Put another way: When does Garrity apply, and when does a firefighter have a right to remain silent?
Samples cases
The application of Garrity in real life confronts firefighters, union representatives and fire department investigators with a very difficult challenge. On the one hand, failing to answer questions when ordered to do so can result in the firefighter being terminated for insubordination. On the other hand, answering questions that are not protected by Garrity immunity can lead to the answers being admissible against the firefighter in a criminal case.
The importance of this distinction cannot be overstated. There are fire chiefs who believe that they can demand answers to any questions they desire from a firefighter. There are firefighters who believe they do not have to answer any questions posed by department superiors. The reality rests somewhere in between.
The U.S. Supreme Court and various other courts that have wrestled with a public employee’s right to remain silent have made it clear that an employee can be compelled by their employer to answer questions, provided those questions are “specifically, directly and narrowly relating to the performance of his official duties.” On the other hand, providing answers to questions that do not qualify under the above-quoted language are not entitled to Garrity protection. In other words, there are questions that a firefighter does not have to answer even if ordered.
Cox v. Chattanooga
Let’s start with an early Garrity case, Cox v. Chattanooga, 516 S.W.2d 94 (Tenn. Ct. App., 1973). Chattanooga detectives were investigating a murder. When they apprehended the prime suspect, he had an address book that listed a contact for Chattanooga Fire Captain Raymond Cox.
Detectives went to Captain Cox’s house and asked him to come downtown to assist with their investigation. He complied, but after arriving at police headquarters, he was escorted into an interview room and read his Miranda Rights. Realizing he was now a target of the investigation, Captain Cox refused to answer questions. The police-fire commissioner came into the interview room and as a ranking officer ordered Captain Cox to answer the detectives’ questions and threatened him with termination if he refused. Captain Cox was allowed to speak with his attorney and again refused to answer questions. He was then terminated.
Captain Cox filed suit to get his job back claiming he was terminated for exercising his Fifth Amendment right to remain silent. The case went up to the Tennessee Court of Appeals, which ruled that because the murder was in no way related to Captain Cox’s employment, the order for him to answer questions was illegal, unenforceable and in violation of the Fifth Amendment. The court therefore ordered him reinstated.
In explaining its ruling, the Court of Appeals stated: “[A] public employee may be discharged for failing to give an account to his superiors for matters directly relating to the performance of his official duties but not to matters outside the scope of his duties. In this case there is no claim or contention the investigation of the murder was in any way related to or within the scope of duties of Captain Cox. Thus, as distasteful as it may be to some, Captain Cox had the constitutional right under the Fifth Amendment to remain silent. His discharge from his employment, as found by the chancellor, is illegal and in violation of his rights under the Constitution.”
As the Cox case demonstrates, there are limits to the scope of questions that a firefighter can be compelled to answer.
Ronayne v. Lombard
Ronayne v. Lombard, 400 N.Y.S.2d 693 (NY Supreme Court, Monroe County, 1977) is another instructive case. A deputy sheriff became aware of criminal misconduct by others in the sheriff’s office. After consulting with his attorney, he secretly began working with the FBI and the local U.S. Attorney who began investigating the corruption. When his bosses found out, they ordered him to disclose what he told the FBI and his attorney. When he refused, he was suspended, and disciplinary charges filed. He filed suit to block further disciplinary proceedings against him.
Arguably the information that the sheriff’s office sought was work-related. However, the court drew a very narrow but important distinction:
“Based on this record, it appears that he was asked questions about discussions he had with Federal officials—not questions "specifically, directly and narrowly" relating to his duties. He [therefore] had a right to exercise his privilege against self-incrimination. [P]etitioner cannot be compelled to disclose the content of his conversations with his attorney. Not only is the subject matter outside the scope of his official duties, but all attorney-client conversations are privileged.”
The Matter of Kelvie
Another instructive case is In The Matter of the Recommendation for Discharge of Kelvie, 384 N.W.2d 901, 904 (Minn. App. 1986).
Kelvie was a firefighter in Minneapolis who, along with his girlfriend, was arrested on drug-related charges. The fire department initiated an investigation during which Kelvie was ordered to answer questions about the drug charges. Despite being given an assurance that his Garrity rights would be respected, Kelvie invoked his Fifth Amendment right to remain silent. He argued that because the drug offenses were not work-related, the Garrity assurance was meaningless and therefore he could not be compelled to answer questions. The department argued that the charges went to his character and fitness to be a firefighter and were therefore job-related.
Kelvie was terminated both for the drug-related charges and for refusing to answer questions. The drug charges were subsequently dismissed when his girlfriend pleaded guilty. On appeal of his termination, a hearing officer ruled that the primary reason Kelvie was discharged was because he invoked his Fifth Amendment privilege, which he had a right to do. As a result, the hearing officer ordered him reinstated.
The fire department appealed the decision into the court system claiming Kelvie’s refusal to answer questions about a work-related matter was grounds for termination. The Minnesota Court of Appeals held that under Garrity and the cases that followed, the fire chief was only authorized to give a grant of immunity for questions that were specifically, directly and narrowly related to the performance of the employee's official duties. In this case, the investigation was not “specifically, directly and narrowly related” to Kelvie’s official duties. Therefore, Kelvie did not have to answer questions and should be reinstated.
As these cases demonstrate, the line between work and non-work-related questioning is not always clear. In close cases, a detailed factual inquiry must be made. Notwithstanding those close cases, the overriding principles relative to Garrity are clear: A firefighter can be compelled to answer questions that are specifically, directly and narrowly related to the performance of his official duties. Questioning that goes beyond the scope of official duties is unprotected by Garrity, and the firefighter therefore has a Fifth Amendment right to refuse to answer questions.
Advice for fire personnel
For those tasked with investigating off-duty misconduct or conduct that involves matters on the edge of being duty-related, my advice is this: Take a step back and determine whether the firefighter’s compelled testimony is necessary to the case. Often the same information can be obtained through other sources without provoking a Garrity confrontation. If the determination is made that the testimony is necessary, consult legal counsel before compelling the answers.
For accused firefighters and their union representatives, understand that a mistake made here may cost the member their job and perhaps carry criminal consequences. Any time a firefighter may suffer criminal consequences as a result of their answers to questions, legal counsel should be retained. Let the lawyers make the decision as to whether to comply with an order to answer questions into matters that are not directly work-related.
