LEGAL: Garrity & Kalkines Rights -- Compelled vs Non-compelled Testimony

[Mellie]

Readers of theysaid first heard about Garrity, a relatively recent ruling (late '60s), in discussions following the Cramer Fire Investigation. Thanks to Guns-n-Hoses, a new LEO who had been a wildland firefighter for bringing Garrity to our attention. It took the Garrity ruling plus one other court case to get these self-incrimination protections into law.

In the case of Cramer, firefighters were compelled to provide testimony in a Forest Service internal investigation (or risk loosing their job). Following this, their testimony was picked up to be used it against them in criminal proceedings. This, in essence violated the constitutional 5th Ammendment clause protecting citizens against self-incrimination. [Those who had Professional Liability Insurance and lawyers versed in this law and the workings of the federal system benefitted from that knowledge and were not charged. The Incident Commander Type 3 who did not (and did not have financial or social resources to fight the impending charges) ended up taking the equivalent of a plea bargain. Not justice by any means...]

Here's the link to the Garrity ruling as it relates to that first Law Enforcement case and subsequent cases:

http://www.wildlandfire.com/docs/2007/garrity.htm

For those of you State and County firefighters reading this and thinking it doesn't apply to you, be forewarned. It does apply to you as well.

"The due process clause of the Fourteenth Amendment makes this requirement applicable to the states."

However, you have the advantage of a Union. Before you say anything under pressure of "you could loose your job" that could later be incrimnating, consult your Union.

I recommend that all firefighters understand the current state of legal affairs in our litigation-happy world. If you have knowledge, you're more likely to know what you're getting yourselves into before you make statements.

It's almost impossible to have and to foster a lessons learned environment when firefighters are afraid of self-incrimination.

[Mellie]

Here is a link to a site describing different kinds of rights we're afforded:

http://www.pgh-metro.net/weingarten.html
Your Rights: Weingarten, Garrity, Kalkines

Basically Weingarten Rights says you may have a union representative present if you ASK for one.

With respect to Garrity and Kalkines Rights...
Google Garrity and Kalkines and study up.

I've heard, as with fire, the test is often administered before the lesson.
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The issue for firefighters is whether a compelled administrative investigation (non-criminal) which preceeds an OIG investigation is privileged or whether what you say in that prior investigation can be used against you in a subsequent OIG investigation leading to criminal charges.

In contrast, if you know it's a criminal investigation, you can "plead the 5th" as a constitutional right. If you think it's only administrative (agency) or if it's lessons learned, you may say more than you should, especially if some uneducated lawyer decides to go after you. OIG does not have much experience in other than white collar crime. It has no experience in fire behavior!
~~~~~~~~~~~~~~~~~

Here's more description of types of warnings (from the Pgh Metro link above).

"Your Rights During an OIG Investigation: Garrity and Kalkines

The Postal Service has been transitioning from Postal Inspector investigations to Special Agents in Charge of the Office of Inspector General investigations for over a year now. While Weingarten and Miranda Rights will still be afforded, Special Agents use Kalkine or Garrity warnings in interrogations that everyone should become familiar with.

Garrity Rights:

Protects the employee from having to choose between self incrimination and job forfeiture for failing to cooperate. The individual has the right to not be threatened with discharge in order for the OIG to secure incriminating evidence that would be used against them for arrest and prosecution. Miranda Rights would be applicable here.

Kalkines Rights:

If the individual is given immunity from criminal prosecution, the employee is required to cooperate in the investigation even if the information solicited could be used for discharging the employee.

Special Agents do not have the authority to grant immunity from criminal prosecution. However, if Special Agents provide the form "Administrative Warning: Duty to Cooperate" that means that the OIG has obtained such a waiver of prosecution."

[Mellie]

Here's what I had to say about Cramer and OIG in 2004

http://www.wildlandfire.com/docs/cra...amer-legal.htm

and 2005.

http://www.wildlandfire.com/docs/cra...mer-legal2.htm

Mellie

[Mellie]

Information on OIG. Note that their expertise is usually white collar crime.

From
http://www.cncsig.gov/PDF/OIGHandbook_18Oct05.pdf
Your Guide to OIG (the excerpt below starts at p 19)

INVESTIGATIONS
The Office of Inspector General supports integrity and efficiency in Corporation programs by providing timely, objective, and independent investigative reports.

What is an OIG Investigation?
An investigation is a planned, systematic search for relevant, objective evidence derived from individuals, documents, tangible objects, and data. In addition to documentation of evidence discovered, an investigation typically includes identifying the basis for the original complaint, the issues involved, and citation of relevant statutes.

What does the OIG Investigate?
The jurisdiction of the OIG extends to all matters relating to fraud, waste, and abuse by Corporation employees, grantees, contractors, and other recipients of funds under or relating to Corporation programs and operations. Investigations focus on violations of law or misconduct by employees and contractors, as well as allegations of irregularities or abuse in programs and operations.

These investigations may involve one or more of the following violations of laws or regulations:
• Theft, conversion, misappropriation, embezzlement, or misuse of Government funds or property;
• False claims or statements;
• Forgery, falsification, or unauthorized destruction of Government records;
• Bribery, extortion, or blackmail or attempted bribery or blackmail of, or by, a Corporation employee;
• Violation of employee standards of conduct, conflict of interest; and
• Mismanagement, fraud, waste of Government funds, or abuse of authority relating to the Corporation’s programs and operations.

There are also sections on
What are the Guidelines for an Investigation?
What is the Investigative Process?
What Access does the OIG have to Documents?
What Access does the OIG have to Individuals?
and

What Employee Rights and Warnings Cover Interviewees?
Office of Inspector General interviews are conducted in compliance with applicable laws, regulations and policies. Before beginning an interview, OIG investigators identify themselves and state the nature and purpose of the interview. When applicable, a statement of the individual’s alternatives with regard to remaining silent and obtaining legal counsel are provided directly and personally to each interviewee. Statements of rights are referred to as “warnings.”

There are four basic types of warnings, commonly referred to as: Miranda, Garrity, Kalkines, and Administrative. The substance of each is summarized as follows:

1. Miranda: Given when an individual is being interviewed concerning his or her own potentially criminal misconduct and is taken into custody or deprived of freedom in a significant way. This warning advises, in accordance with the Fifth and Sixth Amendments to the Constitution, that the individual is entitled to remain silent or otherwise not incriminate himself or herself, and is entitled to the assistance of an attorney.

2. Garrity: Informs Federal employees who are subjects of investigations that, although they would normally be expected to answer questions regarding their official duties, refusal to answer on the ground that the answers may tend to incriminate them will not subject them to dismissal.

3. Kalkines: Advises Federal employees that the possibility of criminal prosecution has been removed, usually by a declination to prosecute by the Department of Justice, and that the employee is required to answer questions relating to the performance of their official duties or be subject to disciplinary action, including dismissal.

4. Administrative: Given when a Federal employee is the subject of an inquiry that is purely administrative in nature. Informs the employee that he or she is required to answer questions relating to the performance of their official duties or be subject to disciplinary actions, including dismissal.

Legal Representation
Office of Inspector General policy is to allow an interviewed employee who requests legal representation to have an attorney present. Employees who make such a request are allowed a reasonable amount of time to arrange this representation. Legal representation is at the expense of the individual employee or as allowed by law.

Bargaining Unit Employees — Union Representation
The Office of Inspector General is not obligated to advise an employee of their right to union representation during an interview. Bargaining unit employees have the right to union representation during OIG interviews if the employee reasonably believes that the examination may result in disciplinary action against them and the employee requests representation. Even an employee who is not considered a “subject” of an investigation has the right to union representation if the employee reasonably believes there is a possibility of disciplinary action. It is the individual employee’s responsibility to obtain Union representation. Employees are given a reasonable amount of time to arrange for union representation.

Union Representative Role
The union representative’s role during an OIG interview includes conferring with the employee, clarifying matters and advising on union issues. The OIG investigator is responsible for conducting and controlling the interview. In the event of a dispute, the OIG investigator may give the employee the choice of proceeding without union representation or terminating the interview.

[Mellie]

For CALFIRE firefighters only:

From theysaid 10/14/07:

CA Assembly Bill 220, Firefighters Procedural Bill of Rights

Beginning January 1, 2008 all firefighters employed by a California Public Agency will be covered. The provisions of the bill (AB 220) signed into law are similar to the Peace Officer Bill of Rights.

Great Job CPF!! (It has taken CPF over 20 years to get this bill passed.)

SoCal CalFire
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Landmark Firefighter Procedural Bill of Rights Signed by Governor

Assembly Majority Leader Karen Bass (D-Los Angeles)

CPF-sponsored legislation giving firefighters administrative safeguards in instances where they are being investigated, interrogated and, as a result subjected to unwarranted punitive action, has been signed by Governor Arnold Schwarzenegger

AB 220, authored by Assembly Majority Leader Karen Bass (D-Los Angeles), was approved 29-11 by the Senate on September 11th and unanimously by the Assembly in June. It was signed October 13th, less than a month after winning overwhelming, bipartisan support in the Legislature.

The action by the governor and the legislature caps a 20-year struggle to extend common-sense job protections to all first responders. Currently, these protections apply only to law enforcement.

What the Bill Does

AB 220 extends procedural protections to firefighters that are similar to those afforded peace officers and arson investigators under the existing law provisions of the Public Safety Officers' Procedural Bill of Rights Act (POBR). Currently, firefighters are extended certain due process protections, as determined by the California Supreme Court in the landmark Skelly case, but, with the exception of arson investigators, they are excluded from POBR.

Firefighters may find themselves in a number of situations where their sworn duty commands appropriate steps to ensure the safety of the public. As such, firefighters who trust their instincts in volatile emergency situations deserve of the same level of administrative protection as their peace officer and arson investigator colleagues when administrative action is taken against them.

A handful of jurisdictions in California have locally negotiated firefighter agreements in place that grant their firefighters administrative protections similar to those proposed in AB 220. In these few jurisdictions, the collectively bargained agreements have helped stabilize employer-employee and community relations. This is due, in part, to the fact that such agreements reflect joint decision-making and consultation between labor and management, which is an essential element to assuring that stable relations are continued and that effective services are provided to the communities that these firefighters serve.

AB 220 specifies:

* The conditions under which investigations and interrogations that may lead to punitive action of firefighters must be conducted;
* That a firefighter will not be subject to punitive action for exercising his or her rights under this bill or for any alleged misconduct if the investigation of the allegation is not completed within one year of discovery;
* That an administrative appeal by a firefighter will be conducted in conformance with rules and procedures adopted by the applicable local agency, consistent with the Administrative Procedures Act;
* That a firefighter be allowed to read and sign any adverse comment before it is entered into their personnel file. If the firefighter refuses to sign a comment, it will be noted and the firefighter will be required to initial it. The firefighter will also have 30 days to file a written response to the adverse comment entered into their personnel file;
* That a firefighter cannot be compelled to submit to a lie detector test against their will and that no disciplinary action can be taken against the firefighter for refusing to submit to one;
* That a firefighter cannot be required to disclose financial information unless otherwise required by law or court order; That a fire chief, prior to removal, must be provided with written notice stating the reasons for removal and an opportunity for administrative appeal;
* That a firefighter's locker or other storage space cannot be searched except in the firefighter's presence, or with their consent, or if a valid search warrant has been obtained; and
* That it is unlawful to deny a firefighter the rights and protections afforded under this bill.

"AB 220 grants firefighting personnel needed safeguards against unwarranted punitive action where they can not otherwise defend themselves," said CPF President Lou Paulson. "We are appreciative that the Governor has signed this important measure into law."

[abercrombie]

from theysaid:

The Ellreese trial questions today and the OIG on Esperanza got me checking around again for legal protections for federal wildland firefighters.

Upshot is that I heard that the San Bernardino NF firefighters involved in the Esperanza tragedy are currently being interviewed by OIG.

FEDS founder lawyer Tony Vergnetti plus lawyer Debra Roth presented info within the last week at the BDF Module meetings: They covered such legal topics as Criminal vs Civil cases; Garrity & Kalkines Rights -- Compelled vs Non-compelled Testimony; Public Law 107-203; etc, all that legal beagle stuff.

I hope everyone on the BDF is studied up and on the same page. I hope all fed managers have excellent professional liability insurance (PLI) coverage.

I also heard Casey talked with Feinstein's Regional Director in San Diego suggesting that OIG shouldn't be conducting investigations unless and until OIG has established policies on Investigation Team composition, Fire Training, etc. Makes sense.

As a result of my current little research project, I went to the FEDS website. (Its link is listed on the Classifieds page.) Their offer of 6 months free professional liability insurance coverage if you switch from "another company" was extended until the end of this month. Sounds like a good deal to me, knowing Tony's expertise and passion for wildland firefighters and the fact that he did most of the legal defense work for the "other company" you'd be switching from!

Here's the FEDS article on why PLI is necessary today.
The MEAT of it -- the part that should be read by all wildland firefighters -- begins on page 3. (Pages 1 and 2 introduce Tony, what their FEDS PLI offers, costs, etc...)

fwfsa-feds-article.pdf (101K pdf file)

If anyone wants to chime in with first hand reports, feel free.

Mellie