Need for OPBA Representation? Know the Continuum
by S. Randall Weltman, Esq.
It has been a long time since a summary of representation responses has been provided to the OPBA’s membership. Representation responses can be broken down into “levels” just like the use of force continuums that OPBA members should know all too well.
Different levels of management action require different levels of OPBA representation. The management actions that are to be considered range from the casual conversation with a supervisor or investigator to either a criminal or internal investigation where the Miranda warnings are read.
As a general yet fundamental rule, whenever anyone reads a member their Miranda warnings that member must invoke their right to remain silent. A member in this situation probably either already has an OPBA attorney present or has been in touch with one so this response may already be known but if not, always remain silent when given the opportunity.
Of course there are exceptions to every rule. In some cases your OPBA attorney will advise you to waive Miranda and provide a statement. This happens in many cases involving BCI investigations of police involved shootings.
The BCI is a law enforcement agency that is in business to investigate matters that are “criminal”, whether obviously so or even remotely so. Thus all BCI investigations are necessarily criminal investigations and thus all of the statements that they take must be taken only after the waiving of Miranda.
Despite what the public may think, virtually all police involved shootings are good shoots, justified by the evidence in light of the use of force continuums. In these cases there is no reason to reject the BCI’s request for a statement because of Miranda waiver fears.
Between the OPBA’s attorneys, the Department’s OPBA Reps and the shooter there is enough competency to assess and measure the quality of the shoot. Once it is determined that the officer’s account will prevail at any level of review, then the waiving of Miranda becomes an appropriate response.
Short of this or another situation determined by an OPBA attorney that it makes sense to waive Miranda, Miranda should never be waived. Management and/or the investigatory authority understands this. Indeed they expect such a response because it is an intelligent response. In any case your OPBA attorney can take the blame because invoking Miranda is a golden rule in best defending a criminal case.
Again, never waive your right against self incrimination unless you have been advised to do so. You will not be stigmatized or blamed and you can always waive it later.
The Garrity warning is another management action that normally warrants the attention of an OPBA attorney. Unlike Miranda, which is a constitutional right extended to everyone, the Garrity warning is a court created right that is granted to only police officers and other employees of a public law enforcement agency. Garrity was created as a counter or protection against the public law enforcement agency’s awesome power to conduct internal investigations.
Law enforcement agencies are structured just like a military organization and are widely known as para-military organizations. This type of organization is built on layers and divisions of authority.
Individuals who are empowered with authority possess the ability to order their subordinates to perform an act, such as to answer questions. There are individuals in every law enforcement agency that can legally order any subordinate to participate in an internal investigation and to truthfully answer any question posed which relates to the subordinate’s work performance.
How can such an order be lawful when the U.S. constitution guarantees everyone the right against self incrimination? How is it fair that in one instance your department safeguards and offers to you your constitutional right and then effectively negates that right with its ability to force you to truthfully answer questions?
Over the years the courts have resolved this dilemma by creating what has become known as the Garrity warning/right. Garrity has evolved into a right to be invoked/provided in order to immunize or otherwise protect the answers to a compelled statement from being used in any subsequent criminal investigation and/or prosecution.
Garrity balances the needs of a para-military organization when it comes to gathering pertinent information pursuant to an internal investigation with the constitutional rights of a law enforcement officer. Garrity is a crucial right but in some cases it can be abused by deceitful prosecutors and police administrators.
In most cases, OPBA members who are given the Garrity right have been in contact with an OPBA attorney. If not there is every reason for which to get in contact with an OPBA attorney.
Virtually all instances where Garrity is issued occur pursuant to an internal investigation. While all non-criminal investigations are “internal” investigations, an internal investigation is a term of art describing an investigation that is formal or official and normally directed at a “subject” or a “target”.
In Ohio, there is an established “right to counsel” for any target or any witness questioned pursuant to an internal investigation performed by a police department. Any witness or subject of an internal investigation can delay their interrogation until they can arrange for counsel to attend (subject to a reasonable amount of time, of course). As such it is suggested that before entering into any statement where Garrity has been cited that the member contact an OPBA attorney for advice and/or attendance at the interrogation.
OPBA representation is also appropriate during any other questioning by a supervisory authority where you, the employee, feel that an outcome of your questioning will be the issuance of discipline. In these situations it is the employee’s obligation to request the presence of an OPBA representative.
If such a request is made the questioning officer is to stop and allow you to secure union representation. Unless this questioning is pursuant to an internal investigation you are only allowed to interrupt until a local OPBA Representative, and not an OPBA attorney, can be present.
It is not always clear when this kind of request for representation is proper. This is because it is not known what the questions will be about or whether they are of consequence. Situations that start off innocent may turn adversarial but keep in mind that at any time the questioning can be, and should be, stopped until representation arrives.
We do know that the discipline that must be feared can not be a simple “word to the wise” or a counseling or coaching, it has to be true discipline from oral reprimand on up. And we know that the fear of being disciplined is a subjective fear, unique to the individual. So if these elements are present at any time be sure to request union representation.
If a request for union representation is made during a questioning session and the questioner does not stop, an unfair labor practice has been committed. The remedy for such a ULP will likely be the vacation of any discipline that was issued, so it makes sense to err in favor of requesting representation, even when you are not sure.
As with the use of force continuum the movement from one level of response to the other is not always clear-cut. This is why it makes sense to know the continuum of the need for OPBA representation and in all instances of doubt call the OPBA for guidance and answers.