Protecting your rights, preserving your job (Part I)

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.

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.

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.

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:

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.

By Jacquie Shipma, former manager of legal services and human resources