Q&A

From Iowa

Question: Do Garrity rights apply during an internal investigation (administrative investigation) for police officers who are not the subject of the investigation but may merely be witnesses? For instance, I sat in on a series of interviews today, and for the first one, the sergeant stated that he understood Garrity only applied to those who were the subject of the investigation, and not witnesses. I asked if he would advise the Union member of his Garrity rights, and he declined to do so. I then asked if the member could leave and refuse to answer any questions without facing discipline (specifically termination) for that action, and was advised he could not. The sergeant eventually realized that he was, in effect, giving the Garrity rights anyway. In a case like this, what could the statements made by this witness be used for? Are they ultimately only good to protect the employee making those statements and could they be used in a criminal court proceeding at a later date, against another member of the department?

Answer: You’re right – what the sergeant did by ordering the officer to answer questions was to effectively immunize the officer under Garrity. The significance of that is that the officer’s statements and the fruits of those statements cannot be used to criminally prosecute the officer. However, because Garrity’s Fifth Amendment privilege is personal to the individual who is compelled to make a statement, and assuming that hearsay hurdles could be cleared, the officer’s statement could be used in the criminal prosecution of other officers.


From Montana

Question: An employee has exhausted all leave time including 12 weeks of FMLA. The employee cannot return to work because of serious back problems. Can the employer terminate the employee due to the fact she cannot return to work? The injury was not work-related. The prognosis is not good, and there are no plans to return to work anytime soon.

Answer: Our take on this is that the situation is much more one with ADA than FMLA implications. It sounds like the employee has exhausted FMLA leave and is unable to return to work, a combination that would effectively terminate the employee’s FMLA rights. However, it also sounds like the employee may have a permanent disability, one that might well qualify as a protected disability under the ADA. That would mean the employer would have the obligation to begin what the ADA calls the “interactive process” to see if it can reasonably accommodate the employee’s disability.


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