By Frank Guido, General Counsel
It has been a pleasure representing the POAM membership for the past 25 years. Despite having written many articles for the Law Enforcement Journal, I have resisted the temptation to pontificate from a regular column. With the POAM legal staff running like a fine tuned machine, I now have the opportunity to reflect on our accomplishments and the bright future for this organization, from a legal perspective.
The message for this edition of the LEJ is the leadership role POAM has taken over the years. Our battles with public employers over a variety of labor related issues are a matter of judicial, administrative and arbitration record. It is the battleground over Garrity rights where POAM has progressed from a leader in judicial battles to correcting legislative language to now, hold your breath, being requested by a management oriented entity, the Michigan Municipal Risk Management Authority, to speak across the state to Employer representatives to give instruction on the proper application of procedural and substantive requirements of the Garrity right.
When I first started with POAM in 1982, application of the Garrity right in a critical incident, whether a shooting or a matter involving physical force, was an ongoing fight with a number of public employers. I can state with the support of history that we never backed down from asserting your rights and that we were always successful in making sure officers were protected when speaking through compelled statements, reports or in verbal answer to questions.
In 2001, the battle could no longer be won with words, requiring litigation to be filed because of a blatant violation of the Garrity right. The facts of the incident were very straight forward. A Livingston County deputy was ordered to produce a statement concerning his conduct in a particular incident involving an altercation with a citizen. The order included a threat of discipline for failure to comply, however, the employer refused to allow the officer to assert, in writing, his Garrity protection, demanding that the written assertion of the Garrity right be removed and waived. The Employer took the action knowing that at the same time a criminal investigation was on-going, admitting in deposition that it would turn over the reports to the criminal investigator. The deputy, due to the threat of job termination, produced the statement removing the written Garrity assertion of right, yet he was still issued a suspension for alleged insubordination for having demanded his rights under the Fifth Amendment and the Garrity decision.
POAM filed suit in State Court which was then removed to the Federal Court. The matter was assigned to the Chief Judge of the United States District Court for the Eastern District of Michigan. After extensive depositions and filing of Motions for Summary Judgment by both parties, the court issued an opinion supporting POAM’s legal position that the Fifth Amendment right as enunciated under the Garrity decision, may be asserted by an employee whenever an Employer compels (through order and threat of sanction), production of information, such that the statement, report or answers to questions may not be used against an officer in a criminal proceeding, but only used in an internal administrative inquiry.
The court scheduled the matter for trial on the basis that factual issues in the case were in dispute. On the eve of trial, the employer conceded to entry of a detailed Consent Judgment reflecting the court’s affirmation of the entire legal position asserted by POAM, leaving the facts of the underlying dispute regarding the suspension of the officer to an arbitration proceeding. The Consent Judgment delineates the procedural and substantive rights under Garrity for law enforcement officers identical to what POAM has advocated since my arrival in 1982. The Consent Judgment can be found on the POAM’s website, POAM.net. In the subsequent arbitration proceeding, POAM prevailed with the suspension being rescinded and the officer being made whole.
POAM’s leadership role in litigation, as reflected in the Consent Judgment, has had a positive impact on POAM’s membership and its growth. When an organization is as aggressive as POAM has been in matters of vital concern to the protection of the membership, such as Garrity rights issues, not only does the existing organization gain solidarity, but, in addition, a portal is created through which other non-member groups of employees seek to pass to join the ranks of POAM membership.
The flip side to POAM’s growth has been the reduction in size of other organized and independent labor organizations. Because of POAM’s success in matters, such as Garrity rights issues, a number of smaller unions attempted to band together to file Garrity based litigation involving an incident concerning POAM’s own membership group in Garden City. Without going into the history and ramifications of that incident which can be found in detail on the POAM website, suffice to state that these organizations banded together in a futile attempt, not understanding that under existing law a Garrity statement could be released to a prosecutor. These other organizations misunderstood that Garrity’s protection runs to “use ” and not to “release. ” The primary feature of the Fifth Amendment, as enunciated in the Garrity protection, is that compelled information cannot be used against an officer in a criminal proceeding. There was never a prohibition against release of the statement to, for example, a prosecutor’s office. Clearly a prosecutor’s office that received released information would be at risk of a suppression motion, not only as to the statement itself but any fruits derived therefrom, if it attempted to use the statement or any information derived from the statement.
POAM cautioned the little band of organizations that they misunderstood the law and that their litigation would fail. As predicted, the little band of organizations lost in Court. As a result, the little band of organizations then pushed for legislation to prohibit disclosure of a Garrity statement to a prosecutor. Unfortunately, the proposed legislation was poorly drafted. The original draft of the legislation so confused the definitions of the Garrity right that they were unworkable. Consequently, the proposed legislation floundered. POAM was asked to fix the definition and we provided a workable provision establishingthat an “involuntary statement ” consists of any form of information which is compelled, meaning an order with threat of any form of sanction. The original purpose of the proposed legislation was supposed to fix what the little band of organizations failed to accomplish in litigation, being a prohibition on release of a statement to the prosecutor. The statute, as enacted, does not accomplish that goal, as a statement can be released to a prosecutor through subpoena or other court ordered mechanism. The only real value of the legislation is that POAM was able to correct a definition which, in essence, codifies the Garrity right.
We have now progressed beyond judicial and legislative success into the realm of instructor and teacher, not just to our membership, but also to public employers, at the request of a significant public employer oriented entity. The Michigan Municipal Risk Management Authority, which represents the vast majority of public employers in the state in liability insurance matters, has requested the POAM participate in a training panel for public employers to explain the procedural and substantive aspects of Garrity. The town hall type meetings will begin in October of 2007 and continue across the state through the end of the year. We look forward to sharing our expertise, so that we can minimize conflicts with Employers in the future.