Threats, Investigations, Garrity, and Public Records

The strange case of a female battalion chief in Montana is back in the news again… and back in court.

Recall last winter, Frenchtown BC Jenny Ross claimed that Fire Chief John Bibler threatened to kill her, her dog and her children. Some of the threats were made via Facebook under false identities. Chief Ross sought a restraining order against the chief after the fire board and local police failed to act on her complaints.

On January 24, 2011, the court concluded Chief Bibler made the threats, but declined to issue a restraining order finding them to be in the nature of childish bullying.

That prompted the fire board to hire a private investigator, Jeff Patterson, to look into the allegations. Patterson submitted his report to the board on February 15, 2011, and Chief Bibler resigned the next day.

In May, Chief Ross sought to obtain a copy of Patterson’s report through the open records law. The local newspaper, The Clark Fork Chronicle, has also sought to obtain a copy. The fire board is thus far unwilling to release the report, and has now gone to Montana’s Fourth District Court to obtain a protective order to prevent its release.

An article today by John Q. Murray in The Clark Fork Chronicle seems to make a compelling case for the release of the report based on public policy grounds. He cites comments by Ross’s attorney, Bryan Spoon, alleging that “concealment of the Report is a clear attempt to limit their exposure for serious and damaging mistakes made in the hiring, retention and supervision of Mr. Bibler”.

Spoon is further quoted: “It would be a gross miscarriage of justice if public officials could conceal evidence of their crimes and escape liability for their wrongs by using the right to privacy as a shield against inquires made by those who put them in office or those injured by their wrongdoings.”

My take on this case is somewhat different.

Fire department administrative investigations are serious business. In this case, the rights of both Chief Ross and Chief Bibler are at stake and before anyone suggests that Chief Ross’s rights take precedence over Chief Bibler’s rights – consider this: Chief Bibler’s Garrity rights may have been invoked during the course of the investigation. What are the consequences of his invocation of Garrity?

When a public employee is compelled to give a statement under Garrity, the contents of the statement, along with any information that investigators develop as a result of that statement is (for the sake of simplicity) immunized. It cannot be used in any criminal prosecution of the employee. The employee can still be charged with a crime – but information obtained from the questioning cannot be used.

If Chief Bibler was compelled to answer questions asked by Patterson and the report is released to the public (whether by Chief Ross or the Clark Fork Chronicle), any prospect for criminal charges against Chief Bibler will be compromised. A police agency seeking to charge Chief Bibler with offenses that had been disclosed during the course of compelled interrogation would have to prove that its entire case was developed without any reliance on the Constitutionally protected information contained in the report.

How could a police agency possibly prove it did not use information contained in the report if the report or excerpts of the report appear in a newspaper or on line? It can’t be done. Releasing the report would effectively immunize Chief Bibler for any criminal wrongdoing he admitted to during questioning.

This is admittedly a convoluted situation, where respecting Chief Bibler’s Garrity rights actually benefits Chief Ross and the public by preserving the ability of law enforcement to bring criminal charges against a wrongdoer.

Does that mean the report should never be produced? No, not at all. At some point the report should be produced but that certainly should not occur until law enforcement has made a final decision to charge or forego charging Chief Bibler with criminal offenses.

Incidentally, we cover these issues in the 2 day program Fire Department Administrative Investigations and Discipline, being held in Indianapolis on July 26-27, 2011 and Las Vegas August 2-3, 2011. Please join us. Fire chiefs, fire service leaders, and union representatives need to understand how an investigation should be conducted, and the impact of Garrity.

The truth is most lawyers and judges do not understand Garrity. Let me explain it to you in a straightforward manner.

Here are the details on the course:

The course will cover:

• Five common complaints about fire service disciplinary processes
• Six steps to create the ideal professional standards system
• Respecting the Weingarten and Garrity Rights of firefighters
• Three key questions to be answered in any due process proceeding
• Firefighter “Bill of Rights Laws” – what you need to know
• The challenges associated with “Conduct Unbecoming” allegations
• Five steps in the investigative process
• Four policies that every fire department needs (but probably don’t have)
• Enhancing interviewing skills
• Three important rules for interviewing the complainant
• Tips for dealing with a hostile or angry witness
• 7 Essential components of due process
• The Code of Silence: Addressing it in a reasonable manner
• Three necessary components for establishing the chain of custody of evidence
• Seizure and documentation of evidence
• Use of photo and video to document evidence
• The law governing workplace search & seizure, including the June, 2010 US Supreme Court decision in City of Ontario v. Quon
• Chemical testing of employees: pitfalls and precautions
• Drafting the investigative report
• Understanding what the pre-disciplinary hearing is and isn’t
• The three burdens of proof
• The corrective action balancing act: determining what penalty is appropriate for a particular individual
• How to prevent disciplinary actions from being overturned
• Use of last chance agreements
• How to handle resignations and retirements in lieu of disciplinary action
• Effective use of pro-active tools to help firefighters avoid rule violations