FIFTH AMENDMENT APPLIES TO INTERROGATIONS OF PUBLIC EMPLOYEES
Public employees have certain constitutional rights that apply in their
employment that may not apply to private employees. For
example, in Garrity v. New Jersey ,
the Supreme Court held that statements obtained in the course of an
investigatory interview under threat of termination from public employment
couldn’t be used as evidence against the employee in subsequent criminal
proceedings. If, however, you refuse to answer questions after you have been
assured that your statements cannot be used against you in a subsequent
criminal proceeding, the refusal to answer questions thereafter may lead to the
imposition of discipline for insubordination. Further, while the statements you
make may not be used against you in a subsequent criminal proceeding, they can
still form the basis for discipline on the underlying work-related charge.
To ensure that your Garrity rights are protected, you should ask the following
1) If I refuse to talk, can I be disciplined
for the refusal?
2) Can that discipline include termination from employment?
3) Are my answers for internal and administrative purposes only and
are not to be used for criminal prosecution?
If you are asked to provide a written
statement regarding the subject of the interview, the following statement
should be included in your report:
“It is my
understanding that this report is made for internal administrative purposes
only. This report is made by me after being ordered to do so by my supervisor.
It is my understanding that refusing to provide this report could result in my
being disciplined for insubordination up to and including termination of
employment. This report is made pursuant to that order and the potential
discipline that could result for failing to provide this report.”