Protecting your rights, preserving your
job
It is an unfortunate fact of your profession: education employees
face many potential complaints and investigations. These potential
complaints include everything from allegations of physical
and sexual abuse to civil lawsuits alleging negligence and
claims of misappropriation of funds. There are many potential
sources of investigation, including the police, the school
district, and Children’s Division. The question inevitably
arises: to what extent must the employee cooperate in these
investigations?
No one is under a duty to cooperate with an investigation
of possible criminal misconduct. Therefore, if a police officer
or child abuse investigator contacts an employee asking for
a statement regarding an incident in which it is alleged that
the employee committed a crime, the employee should refuse
to make any type of statement—verbal or written—until
the employee has had a chance to speak with an attorney.
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On
_______ (date), _________ (time), at _____________ (place),
I was ordered to give this statement by _____________________
(name and position). Consequently, I give this statement
involuntarily and only because of that order as a condition
of continued employment. In view of likely job forfeiture
or termination of employment if I refuse to cooperate
and provide this statement, I have no alternative but
to abide by this order, and I am submitting this statement
involuntarily.
It is my
belief and understanding that my employer requires this
statement solely and exclusively for internal purposes
and will not release it to any other agency or authority.
It is my further belief and understanding that this
statement will not be released to or provided to any
subsequent proceeding other than disciplinary proceedings
within the school district.
For
any and all purposes, I hereby specifically reserve
my constitutional rights to remain silent under the
Fifth and Fourteenth Amendments to the United States
Constitution, under the Missouri State Constitution
and under all other rights provided by law. Further,
I rely specifically upon the protection afforded to
me under the doctrines set forth in Garrity v. State
of New Jersey, 385 U.S. 493 (1967), Spevack
vs. Klein, 385 U.S. 511 (1967), Gardener vs.
Broderick, 392 U.S. 273 (1968), and other cases,
should this statement be used for any other purpose
of any kind or description.
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The situation becomes more complex, however, when it is the
employer requesting a statement regarding an incident. Failure
to cooperate with the employer in an investigation could constitute
insubordination and lead to possible termination of employment.
However, a statement given to the employer could then be turned
over to the police or the child abuse investigator, thus subverting
the employee’s right not to cooperate in criminal investigations.
Is the employee, therefore, put in the position of choosing
between his constitutional right to remain silent and his
job?
The answer to that question is “No!” The United
States Supreme Court, in the case of Garrity vs. State
of New Jersey, 385 U.S. 493 (1967), held that if an employee
is faced with that choice, the employee can take certain steps
to protect herself in both areas. In short, the Garrity doctrine
states that an employee cannot be forced to provide a statement
in order to preserve her job and then have that statement
used against her in a criminal proceeding.
In order for the Garrity doctrine to apply, the
statement must have been compelled by the employer and not
voluntarily given by the employee. Therefore, when an employee
is asked to make a statement regarding an incident that might
possibly result in criminal charges, the employee should first
be clear about who is requesting the statement. If it is the
police or a child abuse investigator making the request, the
employee should simply refuse to make a statement until she
has had a chance to talk to an attorney. If it is the employer
who is requesting the statement, the employee should ask whether
refusal to make a statement will be considered insubordination
by the employer; if the answer is no, then the employee should
simply decline to make a statement. In most situations, however,
the employer will confirm that the statement is required and
that the employee will face consequences for failure to comply.
In that situation, the employee should ask to make a written
rather than a verbal statement. If the employer insists on
a verbal statement, the employee should comply. In either
situation, however, whether a written or a verbal statement
is given, the employee must preface her statement with the
following:
Following these steps will ensure that an employee will not
jeopardize either her right to remain silent or her job. As
always, when an employee is asked to make a statement regarding
any type of alleged incident, he should always contact his
UniServ director for specific advice.
by Jacquie
Shipma
MNEA manager of legal services and human resources
sb,
fall '08
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