As a Broward County criminal defense lawyer, I occasionally receive phone calls from public employees (typically teachers, firefighters, and police officers) concerning whether as a condition of their employment, they are required to answer their employer’s questions regarding alleged/charged criminal behavior either within the scope of their employment (i.e. alleged assault of a student) or outside of the scope of their employment (i.e. arrest for DUI or possession of drugs). Not surprisingly, these public employees are concerned that any incriminating statement they provide to their employer could be used against them in a subsequent criminal proceeding.
As a condition of employment, employees may be required to answer their employer’s narrowly tailored questions regarding conduct on the job. If an employee invokes the Garrity Rule (sometimes referred to as the Garrity Warning or Garrity Rights) before answering their employer’s questions, then those answers cannot be used against them in a criminal prosecution. This principle was developed in Garrity v. New Jersey, 385 U.S. 493 (1967).
The basic rule prescribed in Garrity is: (1) if a [teacher] is compelled to answer questions as a condition of employment or face discipline (i.e. termination), the [teacher’s] answers and the fruits of those answers may be not used against the [teacher] in a subsequent criminal proceeding; (2) the [School Board] is limited as to the questions that may ask – such questions must be narrowly tailored.
Regarding public employees, “The government is not allowed to force a [teacher] to make a statement (even out of court) that might be used as evidence that he/she had committed a crime. It is not even allowed to pressure him/her into cooperating by threatening to fire him/her for refusing to provide such evidence … The employer has every right to investigate allegations of misconduct, including criminal misconduct by its employees, and even to force them to answer questions pertinent to the investigation, but if it does that it must give them immunity from criminal prosecution on the basis of their answers.”
It should be mentioned, however, that if a [teacher] refuses to answer questions after he/she has been assured that their statements cannot be used against them in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to termination for insubordination. Additionally, while the statements a [teacher] makes cannot be used against them in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying charge.
In the event a public employee (teacher, police officer, firefighter) is summoned or compelled by their employer to provide a statement, the [public employee] should read into the record the following statement (if recorded) or insist that the following statement be included in the record (if handwritten or typed) to ensure their Garrity Rights are protected.
“On (date & time) at (place), I was ordered by [Broward County School Board] to submit this statement. I give this statement as a condition of employment. I have no alternative but to abide by this order or face termination.
It is my belief and understanding that the [Broward County School Board] requires this statement solely and exclusively for internal and administrative purposes and will not release it to any other agency or be used for criminal prosecution.
As such, I rely specifically upon the protection afforded me under the doctrines set forth in Garrity v New Jersey (also called the Garrity Rule).
For any and all other purposes, I hereby reserve my Constitutional right to remain silent under the Fifth and Fourteenth Amendment of the United States Constitution.
If you or a loved one is a public employee (i.e. police officer, firefighter, or teacher) who is summonsed or compelled to answer their employer’s questions regarding alleged/charged criminal behavior it is imperative to consult with a Union Representative and an experienced criminal defense attorney familiar with the Garrity Rule.
Martindale “AV” criminal defense lawyer Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida. Fort Lauderdale criminal defense attorney Philip M. Snyder handles all criminal defense matters including, DUI, possession of cocaine, possession of marijuana, possession of oxycodone, battery, grand theft, petit theft, and fraud. The Fort Lauderdale criminal defense law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316. Telephone: 954.462.8035. http://www.lyonssnyder.com/