In 1967, the relationship between government management and public employees changed forever. Garrity v. New Jersey, a landmark decision, forever changed the way public employees were interviewed while under investigation. The case started as most internal investigations do. Officers in a New Jersey borough were being questioned about their involvement in a ticket fixing scheme. Sound familiar? Forty years later, and we still hear of these. The officers were told in interviews with investigators that anything they said could be used against them in a criminal case. Furthermore, if they chose not to answer the questions, they could be discharged from public employment. The officers gave statements to the investigators and were subsequently removed from office and criminally charged.
The statements were used against the officers in criminal proceedings and they were convicted. The New Jersey Supreme Court upheld the convictions on appeal, not taking into consideration the statements having been obtained by coercion. If the defendants refused to answer under the New Jersey forfeiture-of-office statute, they would lose their jobs. The New Jersey statute provided that any public employee would be discharged from employment if they refused to testify or answer any question relevant to their office before any entity with the right to inquire about matters relating to their office or employment, even if the answer given might incriminate them. The court only looked at the voluntariness of the statements, not at the constitutionality of the statute. This was in error, as the voluntariness of the statements that were used to convict the officers was relevant for the purpose of the criminal case. The court ruled the officers were under coercion when they answered the questions without immunity, in that their jobs were in jeopardy.
The case was presented to the United States Supreme Court by the officers on appeal. Justice Douglas wrote the eloquent opinion. The decision by the court was to overturn the officers' convictions based upon the finding that they were coerced under the threat of the loss of their positions as public employees, specifically as police officers. The officers had a vested interest in their jobs, as it was their livelihood. The decision, needless to say, put public entities on notice that, although they have the right to compel employees to give a truthful statement to authorities about their actions as public servants, they could not also use the statement against them in a criminal action. The officers were entitled to immunity, as is any public servant.
Over the years, there have been many ideas thrown about as to who, what, when, where, and how Garrity applies. I have interviewed officers who demanded a Garrity warning prior to any investigation. I have had supervisors who expect Garrity to be read to all officers involved in any investigation. The essence of the Garrity warning is simple. It applies only under an administrative investigation into a criminal act. If at any time during the course of an investigation it is determined that there has been a criminal act, Garrity will apply and will be read to the officer. A Garrity warning will contain the following:
- The employee will be ordered to answer questions.
- The investigation is administrative and not criminal.
- Questions will be narrowly and specifically regarding their actions while in the administrative, not criminal, investigation
- All answers will be used administratively, not criminally.
- They may be disciplined if they fail to answer questions.
This is the core of Garrity. It is short, sweet, and to the point. The court ruled that the officers were under coercion when they answered the questions without immunity. The officers involved in Garrity were not afforded this protection. Garrity is not required in a non-criminal investigation. If a governmental employee is questioned about their fitness for duty in a criminal investigation they must be given the Garrity warning. If the investigation is not criminal, Garrity does not apply.