The Garrity Rule and Government Employees

The Garrity rights/protection stems from the SCOTUS case Garrity v. New Jersey. The Garrity rights are protections only afforded to public employees. This includes federal government employees, state government employees, local government employees, and any other government agency employee. These rights are not extended to private sector employees. The Fourteenth Amendment is what extended this right from just federal employees to all other government employees. The main reason why the Garrity rights only apply to government employees is that anytime a government employee is being questioned by their employer, they are being questioned by a state actor. Similar to a citizen being questioned by law enforcement during a criminal investigation.

These protections are relevant when a workplace investigation discovers the employee may or may not have committed a crime. During the investigation the employer, the government, may ask the government employee questions concerning their investigation that may incriminate the employee depending upon the question or answer given.

Garrity protections will depend upon whether the government employee is ordered or compelled to answer questions, whether the answers to those questions could incriminate the government employee, and whether there is a severe penalty – typically termination – for refusing to answer the questions. If the employer makes a statement that does not state that the employee could possibly be terminated for their refusal to answer, then the Garrity rights are not implicated nor activated; they are only applicable if the employer is compelling the employee to answer and a refusal will explicitly result in their termination.

Garrity rule protections provide use/derivative use immunity. The immunity for compelled statements only applies to the use of the statement itself and to any evidence that is gained as a result of the protected statement. However, the government employee can still be prosecuted for the offense under investigation as long as the prosecution relies solely upon evidence other than the protected statement and any fruit resulting from the protected statement.

Once the government employee is protected by the Garrity rights, protected by the use/derivative immunity, the employee is no longer able to refuse to answer the question or they will/could be terminated by the employer. SCOTUS stated that by being provided the Garrity rights, the employee, in this situation, would no longer be providing any incriminating evidence since the protected statement, and any resulting fruit, can not be used by the prosecution when prosecuting the criminal offense.

Garrity rights do not apply false statements given by the government employee; similar to how the Fifth Amendment does not protect false statements given by a lay person when being questioned by law enforcement. A government employer can also never force or require a government employee to waive their Garrity rights or protections; also similar to the protections provided to everyone by the Fifth Amendment.

In the state of Indiana, government employees have an affirmative duty to ensure the government employee is aware of their Garrity rights but only in situations where the Garrity rights could be applicable.

The Garrity rights are a crucial protection provided to government employees. Navigating these situations can be complex and technical. The municipal attorneys at Banks & Brower are ready and eager to help any municipal unit or government agency concerning any issues stemming from Garrity rights or how to ensure strict compliance with these protections.

Give the municipal attorneys at Banks & Brower a call at 317-870-0019 to start discussing your Garrity issues today.