Expert: Loren Stevens - 1/9/2008

Question
I am a 15 year veteran, my question is regarding the garity warning. After being advised of an internal interview relating to a citizen complaint am I allowed to have an attorney present for the first interview?  Thanks

Answer
Hello John,
This is not an area that I have a great deal of expertise in, but do enjoy a little knowledge of it.
On internal investigations, much of the process is structured on what your agency has formalized in writing. Usually, the process and protocol is a blend of agency oriented concerns, and those interests advanced by your labor organization.
Also, you'll find case law and other materials on the subject in administrative law.
My understanding of Garrity, is that you are compelled to respond, and that the inquiry is administrative oriented. Your response(s), are not to be used against you in a criminal proceeding, if that is how the case will evolve.
From my readings on the subject, most agencies allow a representative to be present, like a union rep. or supervisor.
I know of no inquiry/investigative process where sanctions are possible, that an attorney cannot be present, except in a Grand Jury probe, and even then, the attorney can be outside the Grand Jury room and available to be consulted by their client after every question.
However, An Internal affairs inquiry under Garrity is not adversarial at that juncture, and the attorney is more of an observer, and to counsel you relative to the parameters of Garrity.
In other words, your attorney is not there to cross examine, interview witnesses, of enjoy the fruits of discovery.
These preliminary interviews are usually pretty limited in what they can really achieve.
I think your agency would be in a tough spot, if they deprived an employee of counsel at any time during an accusatory process.
So, I would check you agency manual, and your labor contract for relevant language, then do some research on Garrity v. New Jersey  in general, as well as "past practice" in your jurisdiction, concerning employee representation on an administrative inquiry.
Hope this is helpful, and that I haven't confused it for you.
Good Luck, and regards,'
loren