On Thanksgiving Day, November 23, 2000, while off duty, an officer with the City of Palm Beach Gardens, Florida was involved in an altercation with her husband in their bedroom during which she shot and killed him. She was arrested that day. While in custody at the City of Riviera Police Department, she told her Police Chief and Palm Beach County detectives that she was being beaten up, that she feared for her life, and that she shot in self defense.
The City placed the officer on administrative leave with pay. On March 13, 2001, a prosecutor charged the officer with the second-degree murder of her husband. The Department then activated an Internal Affairs investigation and on March 27, 2001, directed the officer to appear at an investigatory interview on April 10, 2001. The Department sent the officer a so-called “reverse Garrity warning” that ordered her to respond to questions, and provided that “if you do answer, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent proceeding.” The interview was to be based on 114 questions prepared by a major regarding her relations with her husband and the details of the altercation and shooting.
The Palm Beach County Police Benevolent Association (PBA), which represented the officer, advised the Department that the officer would not appear for the interview, stating in part that “the criminal charge is too serious and the stakes are too high to risk her liberty in order to attempt to keep her job.” The Department then terminated the officer for insubordination. A jury later found the officer not guilty of second-degree murder. An arbitrator then considered the PBA’s challenge to the officer’s termination.
The Arbitrator started by acknowledging the legitimate interest of the City in conducting internal affairs investigations so long as employees were not “required to surrender their constitutional right against self incrimination.” The Arbitrator admitted that “on the surface the legal authority affirming the right to terminate in such circumstances looks compelling. But what does it really say? It says that the City has a legal ‘right’ to terminate in those circumstances, if certain conditions are met, but that is all. It does not say that the City ‘must’ terminate, that it is compelled to do so, that it has no choice in the matter. Rather the City can choose to exercise that right, or not to.”
The Arbitrator was clearly skeptical of the immunity provided under the Garrity rule. The Arbitrator observed that “like all rules, exceptions tend to emerge over time that have the unintended consequence of eroding the seeming ironclad protection of the rule.”
As the Arbitrator phrased it: “Here is the scenario. The officer is indicted for second-degree murder in late March 2001. Her internal affairs interview is immediately scheduled for April 10, 2001. The officer is threatened with job loss if she does not appear and answer questions. The interview is to be based on 114 questions that delve in detail into the officer’s relations with her husband and with the events surrounding his death. These questions are available to the prosecutor, as would have been the answers. Many of them are subsequently asked at the criminal trial when the officer testified in her defense.
“Clearly the potential for impeachment on the basis of inconsistency in recollection, delayed recollection of events, etc., does exist. If there is a prosecutorial propensity to use the exception to the rule, as had been the experience of her criminal defense attorney in the county and had been acknowledged subsequently as possible by the state attorney’s office, then the Garrity rule sent to the officer is incomplete, if not untrue, in that the officer’s right against self incrimination is not preserved. In essence, if the answers to the compulsory internal affairs interrogation can be used to impeach, then the answers could be self incriminatory.”
The Arbitrator found that while the officer definitely disobeyed a lawful order, she did so “reluctantly” while facing a “lose-lose dilemma. In fact, there would be universal agreement among reasonable persons that the officer had no choice in the circumstances she found herself in but to decline to answer potentially incriminating questions at the internal affairs interview.” The Arbitrator was also critical of the City’s decision to immediately question the officer, referring to the City’s approach as a “rush to terminate.”
The Arbitrator concluded that the City had no just cause to terminate the officer. The Arbitrator ordered the officer’s reinstatement, with a limited back pay award (the officer’s attorney sent a letter to the City offering to suspend back-pay rights).
City of Palm Beach Gardens, Florida (Redwood, 2004)(unreported decision; copies available from LRIS).
Note: Thanks to Gary Lippmann, attorney for the PBA, for providing LRIS with a copy of the Arbitrator’s opinion.
This article appears in the May 2005 issue