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March 24, 2018
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Police Officers Rights

As an American citizen you have the CONSTITUTIONAL RIGHT to remain silent and offer no testimony which will incriminate yourself.

With that being said, as a public servant there may come a time during your career when you will be required to provide testimony to Internal Affairs for the condition of your employment.

If you are contacted by Internal Affairs in person or via a Charge Letter, you should contact a member of your Lodge Executive Board immediately so they can be present during any interviews.

                                  OFFICER INVOLVED SHOOTINGS

An officer involved shooting can be a very stressful and confusing situation.  Upon being involved in a shooting, an officer must take the following steps:

           -Contact a member of your Lodge Executive Board so they can get an attorney on their way.

            -Provide your immediate supervisor the facts surrounding the incident

            -Follow standard departmental policy in reference to urinalysis.

When you are involved in the incident, it may seem like you are being spoken to by a lot of people all at one.  The following are some things you should remember:

-Do not speak with CID until both your Lodge Representative and attorney are present.

-If Internal Affairs must talk to you, ensure that your Garrity Warning is read to you prior to the interview and your Lodge Representative is present.

-Do not conduct any “walk throughs” of the scene until both your Lodge Representative and attorney are present.

Your Lodge Representative will stay with you throughout the entire process.  Your Executive Board is there for you no matter what.  We will see you through this process TOGETHER!

                                            THE GARRITY RULE

Officer Doe, please report to internal affairs to provide the I.A. investigator with a statement regarding an incident.  Every experienced police officer has faced the unsettling prospect of being interviewed as part of an internal affairs investigation. It is impossible to work for long in the current police environment without being
called into the department to give a statement to Internal Affairs-- whether the request is well founded or not; whether it was generated by a citizen complaint, an incident on the street or the police administration; or whether it is directed to the individual officer, other officers, or at unidentified people.

The Garrity Rule or Garrity Warning is a protection that is utilized by many law enforcement officers each year. Simply put, Garrity is a statement that should be made to an officer who is being questioned during a departmental disciplinary proceeding or internal affairs investigation.  The Garrity Rule prohibits the officer’s statement(s) from being used against him or her in a subsequent criminal prosecution.  Remember, the
statement(s) can be used against an officer in subsequent disciplinary proceedings and civil lawsuits.  

However, an officer is required to follow departmental rules and regulations and provide statements pursuant to an order of a superior or face disciplinary action up to and including termination.  

In essence, Garrity comes into play when an officer is actually being compelled (ordered) under threat of departmental discipline to make a statement.  If an officer is compelled to give statements under threat of discipline, up to and including termination for failure to provide a statement(s), the statement(s) may not be used in a subsequent criminal prosecution of the individual officer.

Basically, the Garrity Rule only protects an officer from criminal prosecution based upon statements he or she might make under threat of discipline or termination.  It is also important to understand that the officer must announce that he or she wants the protections afforded to them under Garrity because Internal Affairs is not obligated to inform you of your Garrity rights.

Furthermore, Garrity is not automatically triggered simply because questioning is taking place.  If an officer makes a statement to an investigator(s) when he or she is not compelled to do so, Garrity will not apply. Therefore, if an officer is asked a question, formally or informally, that could lead to criminal charges being filed against the officer, do not simply answer the question without determining whether the officer is being
ordered to answer the question under the threat of discipline or termination.

The statement below should be prepared in writing, and the officer should obtain a copy of it. If a written statement is being taken from an officer, the officer should insist that the Garrity Rule actually be typed in the statement.  If not, an officer should recite the statement when giving a taped interview and/or write it on all statements they sign.

On ___________(date)_____________(time) at _______________(location), I,
____________________________(name), was ordered to submit this report by
____________________________(name and rank).  I submit this report at his order as a condition of my employment.  In view of possible job forfeiture, I have no alternative but to abide by this order.

It is my belief and understanding that the department requires this report solely and exclusively for internal purposes and will not release it to any other agency.  It is further my belief that this report will not and cannot be used against me in any subsequent proceedings.
I retain the right to amend or change this statement upon reflection to correct any unintended mistake without subjecting myself to a charge of untruthfulness.

For any and all other purposes, I hereby reserve my constitutional right to remain silent under the Fifth and Fourteenth amendments to the U. S. Constitution and any other rights prescribed by law.  Further, I rely
specifically upon the protection afforded me under the doctrines set forth in Garrity v. New Jersey, 385 U. S. 493 (1967) and Spevack v. Klien, 385 U. S. 551 (1956), should this report be used for any other purpose of whatsoever kind or description.

Finally, you may want to add the following statement at the conclusion of the interview or statement:   

I have answered every question honestly and to the best of my ability. If at any time during this investigation, it appears that any of my answers are seemingly in conflict with the facts of the case, please provide me with the opportunity to address those issues.

                                                WEINGARTEN RIGHTS

In 1975 the United States Supreme Court, in the case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation at investigatory interviews. These rights have become known as the Weingarten Rights.

-You have the right to the presence of a union official whenever you are requested or required to give a statement which could result in your discipline or discharge.

-Unless you request the presence of a union official you will be deemed to have waived that right.

-Prior to, or during your interrogation, you may review any reports or statements you may have made on the subject of your interrogation.

-During the interrogation, you may consult with your Union Representative in the absence of the interrogator.

-You are not required to answer any questions concerning your off duty conduct during the interrogation, unless your off duty conduct involves action regarding your Capacity as a police officer.

What situations give rise to Weingarten rights?

  • Where the employee has a reasonable expectation that discipline may result; for example, where the meeting is part of the employer's disciplinary procedure.
  • Where the purpose of the meeting or interview is to investigate an employees allegedly inadequate work performance or other misconduct, where discipline of any kind is a possible result.
  • Where the purpose of the interview of meeting is to elicit facts, the employee's "side of the story," or obtain admissions or other evidence either to determine whether or not discipline is warranted OR to support a disciplinary decision already made.
  • Where the employee is required to explain or defend his/her conduct in a situation which the employee reasonably fears could affect his/her working conditions or job security.

What situations DO NOT give rise to Weingarten fights?

  • Where the meeting or discussion is merely for the purpose of conveying work instructions, training, or needed corrections.
  • Where the purpose of the meeting is simply to inform the employee about a disciplinary decision that has already been made and no information is sought from the employee.
  • Where the employer has clearly and overtly assured the employee prior to the interview that no discipline or adverse consequences will result from the interview.
  • Where any discussion that occurs after the employer has notified the employee of the discipline has been initiated by the employee rather than the employer.

Does the employer have to inform you about your Weingarten rights before conducting the meeting or interview?

Absolutely not. It is up to employees to know their rights and ask for representation in investigatory or disciplinary interviews.

How and when should an employee request representation?

As soon as the employee becomes aware that the employer is seeking information that may result in discipline, or to support a disciplinary decision, the employee should state his/her desire for representation.

The employee's request does not have to be in any particular form nor does it have to be in writing. Even words such as, "Shouldn't I have a representative here?" have been considered sufficient to assert Weingarten rights.

As to when, the employee can make the request at any time, even in the middle of the meeting. (However, the employer will be permitted to use any information obtained before the request has been made, as long as the employer provides Weingarten rights promptly upon the employee's request.)

What are the Weingarten rights that the employer must offer, after an employee has requested representation?

The employer has three lawful options:

  • Grant the request and delay the interview or meeting until the representative arrives and has a chance to consult privately with the employee; or
  • Discontinue the meeting or interview; or
  • Allow the employee to choose whether to continue with the interview unrepresented or forego the interiew entirely

If the employer insists that the meeting continue without a representative, may the employee refuse to answer questions or even leave the meeting?

Arguably yes. An employer cannot discipline or discharge an employee for refusing to surrender his Weingarten rights to representation. If it is truly a Weingarten situation, the employee may remain silent or even leave and return to his/her normal work duties. However, given the complexity and unpredictability of the law, it is often more prudent for the employee to comply with the employer's directives, knowing that s/he might later be able to overturn any discipline that results from the unlawful meeting. Otherwise, the employee risks being disciplined for insubordination.

Can the employee insist on a particular representative? Does it have to be a union representative?

The employee may choose his/her own representative, whether it's a union official or another employee, without the employer's interference, as long as the choice does not unduly disrupt the employer's ability to conduct the investigation. In practice, this usually means that the employer should try to comply with employees request, even if it means some delay in scheduling the meeting. On the other hand, the employee can't expect the employer to postpone the meeting unreasonably. The reasonableness of either the employer's or the employee's behavior can only be measured on a case by case basis.

What are the representative's role, rights, and duties at a Weingarten meeting?

While Weingarten meetings are not "bargaining sessions," the union representative has the following rights:

  • To be informed about the subject matter of the meeting;.
  • To consult privately with the employee before the meeting;
  • To speak and be proactive during the interview, as long as doing so does not interfere with or disrupt the meeting;
  • To advise and counsel the employee;
  • To provide additional information to the employer at the end of questioning.
  • To bear witness to the proceedings, take notes, etc..

If an employer has provided all the necessary Weingarten rights, may an employee refuse to answer questions?

No, unless the matter under discussion has criminal implications. Generally, an employee generally does not have the right to remain silent, as long as his/her representational rights have been honored, nor may the union representative direct the employee to remain silent.

Can an employee "waive" his/her Weingarten fights? How?

If an employee does not affirmatively ask for representation, s/he will be considered to have "waived" his/her rights. However, as noted earlier, the request for representation does not have to comprise any "magic words," as long as it puts the employer reasonably on notice that the employee would prefer representation.

If the employer claims that the employee chose to continue the interview without representation the employer must demonstrate that the choice was voluntary, clear, and unmistakable. For example, if the employee elected to go forward without a representative only after the employer told him "things will be worse for you if you insist on having the union present," then the choice would not be deemed "voluntary."

What remedy is available for violation of Weingarten rights?

An employer commits a prohibited practice under Chapter 150E if it (1) refuses an employee's request for representation during an investigatory or disciplinary meeting or otherwise withholds the full panoply of Weingarten rights; (2) disciplines an employee for asserting his/her Weingarten rights; (3) threatens or coerces an employee exercising Weingarten rights; or (4) threatens or disciplines a union representative for assisting an employee in a Weingarten meeting.

The Labor Relations Commission will order the employer to rescind any retaliatory threats or discipline imposed because an employee or union representative exercised Weingarten rights. Moreover, if, the Commission finds that the discipline ultimately imposed by the employer was affected by the information obtained at the unlawful meeting, or was affected by the fact that no union representative was present, then the Commission will also order that discipline rescinded. The Commission will also order the employer to post a notice of the violation.

Arguably, information obtained at a meeting in violation of Weingarten rights should be excluded from any eventual discharge or discipline arbitration

Page Last Updated: Dec 14, 2012 (00:30:04)
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