E-Newsletter Edition: January 23, 2008
Response Provided By: Lou Reiter and Jack Ryan, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
Does the Garrity decision apply to EMS workers when they are asked to write up an event, for example a medical error that was made that contributed to the death of a patient or a fleet accident that causes injury or death to an occupant of the ambulance or another vehicle? I ask because agencies (including my own), frequently ask their personnel to document events without legal representation present; many of these events may later expose the individual to significant legal jeopardy once the case goes to court.
The question presented raises three distinct issues. The first concerns employment status as an EMS (emergency medical services) employee and whether Garrity would apply to such an employee. Assuming that the EMS employee is employed by a public entity and not a private contractor, then all of the rules concerning public employment apply. Garrity protection does not apply to employees of non-governmental entities. In several states law enforcement personnel are covered by a law enforcement officers’ bill of rights, these provisions generally do not extend to other public employees. All public employees are entitled to a Garrity admonishment and the immunity it provides for any questioning during an investigation that has the potential of criminal exposure. Garrity and its subsequent case Gardner v. Broderick guarantees that in cases involving potential criminal allegations, public employees are entitled to the protection of the 5th Amendment against self incrimination in any criminal matter. But as a public employee, these cases allow an agency to compel the employee to answer questions that are “directly, narrowly and specifically related” to your performance of duties or fitness to perform. The statements that are taken under this scenario can only be used administratively and cannot be used against the employee in a criminal prosecution. The scenarios presented in this legal question would certainly be applicable to these rules even though they have some potential criminal implication since they certainly pose a legitimate concern for the agency from an administrative point of view.
The second issue is the requirement to submit a report regarding the specific incident. Employees and agencies have to consider two (2) aspects of this. Are employees required to submit a report for an incident such as this as a normal and required report in your duties as an EMS employee? If so, then the employee would be required to complete this report; however, the employee may be allowed to consult with a representative before completion of the report. On the other hand, if this is a “special” report based on a risk management issue or the anticipation of an investigation or lawsuit, then it would normally allow the employee to seek representation before completion of the report.
A case in Maryland is supportive of this position. In Maryland Aviation Administration v. Noland, 873 A. 2d 1145; 2005 Md. LEXIS 252, a paramedic was accused of striking a patient and not reporting it. The agency eventually decided to terminate him. While the termination was initially changed to a suspension, it was eventually upheld by the Maryland Appeals Court as not being arbitrary.
There are a couple of caveats to this requirement. The first would be whether the employee is represented by a collective bargaining agreement. In most states the employee who is part of a CBA would be covered under the provisions of the Weingarten rule. That allows the employee to seek representation when they are questioned in a matter that could lead to disciplinary sanctions. If the employee is not covered under a CBA, then the employees would normally not have this protection under that provision, but most likely would still be allowed reasonable representation.
Since the preparation of a report, whether a routine or “special” report, could expose you to criminal potential, the employee should be allowed to seek assistance of legal counsel or a representative. A case in point is Watson v. County of Riverside, 97 F. Supp. 951; 1997 U.S. Dist. LEXIS 13797. Readers might recall that several years ago there was a long pursuit, over one hour, in Southern California of a bunch of undocumented aliens in a pick-up truck. At the end of the pursuit one Deputy Sheriff used his PR24 repeatedly on some of the occupants of the truck. When he came into the station his watch commander ordered him to prepare the required use of force report. The Deputy’s union attorney appeared at the station. The watch commander refused to allow the Deputy to consult with the attorney before he prepared his report. The court in California issued an injunction to restrict the admission of the report based upon the refusal to allow the employee to seek counsel before the preparation of the report even though he would still be required to be prepared. “Without such advice of counsel, there is a substantial risk of Watson’s being deprived erroneously of his interest in not being fired from his employment and not being prosecuted for criminal offenses. Defendants provided no additional or substitute procedural safeguard against such a deprivation.”
The third issue is what level of representation would be allowed. The representative can’t impede, obstruct or delay the normal process. But the representation has to be real. A case in point occurred in Maryland. In Ocean City Police v. Marshall, 158 Md. App. 115; 854 A.2d; 2004 Md. App., a municipal police officer was accused of some form of excessive force and ordered to appear to answer questions by his agency. The agency wouldn’t provide the employee or the representative with the nature of the allegation or any specifics of the allegation. The court found that the agency failed to allow the employee reasonable representation. “The result…left to speculate whether the complaint related to his apprehension of the suspect, whether it was criminal or non-criminal, whether it related to physical conduct or administrative actions, when and where it occurred…In short, the nature of the investigation was not disclosed…“Appellee had a right to counsel, but that right was compromised under the circumstances here. Had the interrogation gone forward, there was insufficient information for counsel to consult meaningfully with appellee and to make an intelligent decision whether and when to object, or even to determine whether a particular question was sufficiently related to the subject matter of the investigation to be a proper question.”
In the end the EMS employee under this set of events would have to comply with the agency’s order to prepare the report.