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
, 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
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?
you are asked to provide a written statement regarding the subject of the
interview, the following statement should be included in your report:
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.”