FIFTH AMENDMENT APPLIES TO INTERROGATIONS OF PUBLIC EMPLOYEES
Public employees have certain constitutional rights that apply in their
employment that may not apply to private employees. For example, in Garrity v.
New Jersey , the Supreme Court held that statements obtained in the course of an
investigatory interview under threat of termination from public employment
couldn’t be used as evidence against the employee in subsequent criminal
proceedings. If, however, you refuse to answer questions after you have been
assured that your statements cannot be used against you in a subsequent criminal
proceeding, the refusal to answer questions thereafter may lead to the
imposition of discipline for insubordination. Further, while the statements you
make may not be used against you in a subsequent criminal proceeding, they can
still form the basis for discipline on the underlying work-related charge.
ensure that your Garrity rights are protected, you should ask the following
1) If I refuse to talk, can I be disciplined for the refusal?
2) Can that
discipline include termination from employment?
3) Are my answers for
internal and administrative purposes only and are not to be used for criminal
If you are asked to provide a written statement regarding the subject of the
interview, the following statement should be included in your report:
“It is my understanding that this report is made for internal administrative
purposes only. This report is made by me after being ordered to do so by my
supervisor. It is my understanding that refusing to provide this report could
result in my being disciplined for insubordination up to and including
termination of employment. This report is made pursuant to that order and the
potential discipline that could result for failing to provide this