Today’s burning question: I hoped you may be able to shed some light on a problem we have. Last week one of our drivers was written up. When the employee in question went before the Chief and asked to appeal the disciplinary action, he was threatened with a harsher discipline if he chose to move forward with his appeal. Is there a chance this violated the employee’s Garrity rights?
Answer: This factual scenario does not appear to raise a Garrity issue, let alone constitute a violation of the driver’s Fifth Amendment rights. However, there may be other problems with that kind of threat.
Let’s talk about the facts of life. There is nothing wrong as part of a plea bargain discussion, for a chief to say: If you accept this penalty and waive your right to appeal you will get a reprimand. If not, then the penalty may be harsher, up to and including termination.
That is the nature of a plea bargain.
However, the same statement made outside of a plea-bargaining session can be problematic. If a FF is found to have violated a rule (ie the disciplinary charges were found to be sustained), and the FF has a right to appeal that decision through a collective bargaining agreement, civil service laws, or comparable process, then threats to punish the FF more harshly for exercising those rights could violate either the CBA, or civil service laws. A factor here is whether the chief actually has some ability to control that appellate decision to increase the penalty (ie does the chief serve as the hearing officer on appeal?).
Notice that there are several factual questions here: Was the chief’s statement made as part of plea bargaining? Was it really a threat intended to punish the exercise of a right, or was it simply a statement of fact? Does the chief have the ability to carry through on the threat or is the chief suggesting that the department will seek a stiffer penalty from a neutral hearing officer (something he may be entitled to ask for). In some situations a disciplinary appeal is merely an opportunity to ensure that the imposed penalty was appropriate (ie. that the accused did in fact violate a rule and that the penalty appropriate). In such a case, the appellate hearing officer has no ability to increase the penalty.
However, some appeals are what we call “de novo” reviews. De novo means we are starting all over anew. What that means is the firefighter who appeals could conceivably get a harsher penalty (or no penalty at all). That decision is up to whomever is hearing the appeal. As such, a chief who merely points out to a firefighter that a neutral hearing officer has the ability to increase a penalty, is simply making a statement of fact, not a threat.
So there’s actually a lot of factual issues that would need to be resolved in order to answer your question. However, one thing for sure is that Garrity is not a concern based on the information provided.
We will be discussing Garrity this week in Advanced Garrity Issues: Firefighters and the Right to Remain Silent, December 1, 2021, 1 PM. One of the predicate issues that triggers a Garrity problem is a possible criminal offense. If the firefighter committed a criminal act while driving the apparatus, Garrity could be implicated when the firefighter is questioned about what occurred. More on that topic.