The employer, superior officer, orders the other officer/union official to write a letter about what the conversation was about.

The officer/union official alledgly told the other officer some negative comments regarding a supervisory officer.

Does the officer have a right to have a conversation with another officer, with no others present in private while on duty, with out being compelled to write a statement of what was said?

Your question also referred to the duty to provide a report within 24 hours of a supervisor’s request. Do not operate on the assumption that the Garrity right (protection against use of a compelled statement against you in a criminal proceeding) will automatically be applicable to the report you submit within the 24 time period. Under both Garrity and the Michigan statute which has somewhat codified the Garrity right, the requirement of “compulsion” must exist before a report (or any form of information) is given to the employer, to have the Garrity protection activated.

Compulsion exists when the order to provide a report (this can exist as a stated duty by rule, regulation of policy) is accompanied with a threat of adverse job action (such as discipline, which includes discharge or any other employment sanction, i.e. suspensions). Absent an express threat by a supervisor, the existence of the Garrity right will be subject to unnecessary scrutiny if a circumstance later arises in which the prosecutor attempts to use the information given by the employee against him/her in a criminal proceeding. Often we have to prime the pump, so to speak, to make sure the employer’s order includes the threat of a job sanction. This is accomplished by asserting the 5th Amendment right to remain silent when ordered to give the report. It is at that point that the employer has the right to demand the report under threat of job action. We will often tell the employer after asserting the 5th Amendment right to remain silent that we will provide the information sought by the employer if there is a threat of job sanction because we will then be relying on the Garrity right which we, of course, expressly invoke at that point in time.

Once an order to give information (report/statement, etc.) is given along with an express threat of employment sanction for failure to provide information, you must invoke your Garrity right by an affirmative statement to the employer representative that you are asserting the Garrity right (while the statute creates a form of automatic attachment of the right at the point when compulsion occurs–it is recommended that the 5th Amendment principle, that the right must be invoked or it does not attach, should still be adhered to).

Follow our Garrity quick reference guide which is included in our website for the proper procedure to follow to protect your rights.

Frank A. Guido, POAM General Counsel

The City of Detroit Fire Department EMS Division, is oft-times a volatile place to work. As such, we might find ourselves in situations where criminal charges are possible, as a direct result of the performance of our jobs. First, consider that as EMT’s and Paramedics, we have a legal obligation to act in the presence of a need for emergency medical assistance, and in some cases, even where there is not a need for emergent medical care. Further, that as the inherent nature of our jobs require us to make split second decision that may have a long lasting effect, and possibly even a permanent effect on the people whom we serve. The probability for legal action is definitely high.

Now, as I read through the article, and I see the title ‘officer’ used instead of something more universal, like ‘public employee,’ I wonder if Garrity might apply to EMS employees, and possibly ALL public safety professionals, to include fire fighters.

We have a policy that compels our Technicians, and Medics to submit a written report, or letter of explanation, within twenty-four hours of a request made by supervision. If it has not happened already, it is possible that our administration could use such a report, letter or statement to seek legal action against one of us.

In short, would the Garrity Right belong to us as well as a police officer? After all, our employer is the government, too.

Miranda is different. Miranda attaches to an “in custodial” interrogation of a suspect in a criminal investigation. Miranda provides among others things the right to remain silent. Under “Garrity” when an individual is compelled, as a condition of employment, to provide a statement then that person must comply with the order if they hope to keep their employment.

In your scenario above, the order of events renders the two rights incompatible because “Garrity” orders you to make protected statement that can not be used against you and Miranda provides you have the right to remain silent and if you chose to make a statement it can and will be used against you. The more likely scenario is that an individual is read Miranda and he invokes his right to remain silent. Then the Employer reads “Garrity” or orders him under threat of discipline to provide some information. This is allowable, but ill advised. If there is a criminal investigation then it could be tainted by the “Garrity” protected statement and as such prosecution may be problematic or even barred.