Public safety employees are held to higher standards. As a result of your unique work, it is not uncommon for your actions on or off the job to be questioned.
So, what should you do if management asks questions about an incident or conduct that could get you in trouble? What if you are being questioned about off-duty criminal activity or encounter with law enforcement?
What should you do if management directs you to write a report, email, memo or some other document about an incident that they may discipline you over? Some agencies have internal forms or memos that employees are required to fill out to document their involvement in a particular incident. Sometimes, however, there may be underlying policy violations or allegations that have come to your Department’s attention that can result in discipline.
What if, under these circumstances, management orders you to provide answers, and you don’t have time to contact your union representative or attorney? Should you refuse and risk being found insubordinate? Should you comply?
These situations may arise in the course of your employment. We understand the employment relationship can be complicated. In public safety, you’re instructed to follow the chain of command. You may feel compelled or obligated to answer questions asked by those in your chain of command. Alternatively, you may feel like your explanations may “clear the air” and resolve any potential issues. Sometimes, your management may even lull you into a sense of security by telling you things to encourage your responses: “this isn’t a big deal,” “we just want to hear your side of the story,” “this probably isn’t going anywhere, we just have to look into it.” However, it is important to protect your rights.
If you face a situation where you are concerned your responses may lead to discipline, you should seek clarification. First, you can ask whether the questions could lead to discipline or whether management is concerned about any policy violations. If you think the questioning may lead to discipline, you can ask for your representative. Second, if management insists you provide immediate answers, you should clarify that they are ordering, not just asking, you to provide them.
Then, in order to preserve all of your rights, you can make a non-waiver statement. The non-waiver statement ensures you do not waive any of your rights provided under your Fifth Amendment right against compelled self-incrimination, rights to counsel, and statutory rights.
You can read the non-waiver statement, preferably on a recording, or include it in any written response you’re ordered to provide. Even if you feel like you have done nothing wrong, it is important for you to preserve all the rights afforded to you under the law.
The non-waiver statement is as follows:
“I have been refused the right to have a representative of my choice. I understand that I am being ordered to make a report or answer questions and if I do not comply with that order, I may be disciplined for insubordination. Therefore, I have no alternative but to abide by the order. However, by doing so, I do not waive my constitutional rights to remain silent or any of my other rights afforded to be by law.”
Thereafter, you should contact your union representative or attorney as soon as possible. Your union representatives can help get you get in contact with attorneys from our firm who are experienced in litigating violations of the POBR. Similarly, Mastagni Holstedt, A.P.C. has experienced criminal attorneys who understand the interplay between criminal and administrative investigations, the different procedures, and unique legal remedies of both.