Investigators should consult with their department's policies and procedures and labor attorneys before implementing any changes based on any information provided in this website.

One of the concerns that often come up with even the most experienced law enforcement managers and supervisors when ordering employees to appear at an investigative interview is: "Where is the line between ordering an employee and compelling them?"

Law enforcement managers and supervisors can order a public employee to appear at an investigative interview under the threat of serious disciplinary sanctions if they fail to appear as long as they are clear that the order and threat of discipline applies to the ‘requirement to appear’.

Compelling an employee to appear is not the same as compelling an employee to answer questions. Employers should look to the Massachusetts Appeals Court’s decision in Massachusetts Parole Board v. Civil Service Commissioner (716 N.E.2d 155r 47 Mass.App.Ct.760) (Mass.App.Ct1. 999) to answer many of the questions concerning how to get an employee to cooperate in an investigative interview where a criminal act may be in the picture.

The court in that case answered many of the questions that investigators have concerning questioning public employees where serious misconduct or a criminal act may be in the picture.
Ordering an employee to appear at an investigative interview with disciplinary ramifications if they fail to appear is well within the rights of an employer.

The appeals court held that the: “(1) Board’s letter to officer ordering him to appear at investigatory interview was sufficient to give him notice that his refusal to appear could result in his discharge; (2) Board had no obligation to tender an offer of Transactional immunity to officer; and (3) officer’s good faith reliance on erroneous advice of his attorney did not bar his discharge.

Ordering an officer to appear is not the same as ordering them to answer questions and employers should address both issues when serving an employee with a notice to appear at an investigative interview. The Court ruled that the Parole Board’s letter to the parole officer ordering him to appear at the investigatory interview was sufficient to give him notice that his refusal to appear could result in his discharge, where the letter informed the officer that he could “be subject to disciplinary action by the Parole Board in the form of a discharge for his failure to answer material and relevant questions relating to the performance of his duties”

In this case the courts gave many opinions about the parole officer's failure to appear and whether he had a constitutional right to refuse to answer any and all questions put to him by his employer: (1) "In sum, we do not construe the Carney, decision to permit an employee to circumvent an investigatory proceeding by claiming generalized constitutional rights prior to the time the inquiry has advanced to a level of specificity where the claim can be properly evaluated in a particularized context.” (2) Further, because the inquiry had not yet advanced to a level of specificity in which the competing concerns of immunity could be evaluated, the board had no obligation as a matter of law to tender an offer of transactional immunity to the employee. (3) "In our opinion, the failure to appear is tantamount to a refusal to answer."

The court was very clear that an employee must appear at an investigative interview when ordered to do by his/her employer or face disciplinary action when the employee is properly advised and served notice that failure to appear will result in discipline. Properly advising and serving notice to the employee is the key to holding them accountable, if they fail to comply with your lawful order.

The next question and/or concern that most law enforcement managers, supervisors and investigators express concern over regarding this issue is how to compel employees to answer specific questions without triggering immunity or incurring unnecessary delays in the investigative process. The Massachusetts Parole Board case answers those questions.

The Court stated that "the letter to Maurice specified that the area of inquiry the board would pursue concerning Maurice’s precise involvement in the matter of the probationer’s surrender hearing". It is not self- evident from the letter that the board would have asked Maurice any questions that would have triggered his right to invoke the privilege against self -incrimination, which we assume is the constitutional right being asserted by Maurice.

Certainly, the Board would have had the right to ask him questions relating to his alleged role in securing the probationer’s absence from a counseling program and Maurice would not have had any right to refuse answer those questions. The Court also stated “there is a real difference between refusing to answer a specific question during a proceeding and a blanket refusal to answer all questions before a proceeding has advanced to a level of specificity in which the competing concerns of the employer and the employee can be addressed in a meaningful way”.

The Court has indicated and given direction to law enforcement managers and supervisors about the correct way to compel employees to appear and cooperate at investigative interviews in this decision. They felt that the language used by the Chairman of the Parole Board in his letter to Maurice was proper and contained all of the necessary elements needed to compel and employee to appear and cooperate at an investigative interview. The letter contained the following elements necessary to compel an employee:

1) The letter contained a specific instruction (order) to compel the employee to be present at a specific time, date and location. “I require your Presence participation and cooperation in an interview to be conducted at the Parole Board's Central Office at 27-43 Wormwood Street, Boston, Massachusetts on, November 4, 1988 at 10 A.M.”

2) The letter contained a brief explanation of what the meeting would be about. "The interview will be solely administrative in nature. Its purpose will be to discover facts and to offer you an opportunity to explain events relating to the performance of duty. The interview will not seek a final determination or adjudication as to whether you ought to be removed from your job, but rather will be investigative in nature.”

3) The letter gave the employee an advisement of his rights. "Additionally, please be advised that you have all the rights and privileges guaranteed by the laws of the Commonwealth of Massachusetts and the Constitution of this State and of the United States including the right to be represented by counsel, at this inquiry.”

4) The letter advised him that answers that he would give could not be used against him. This may not be necessary if the right language is used to fully explain that the employee does not have to answer questions that they reasonably believe would tend to incriminate them. "I further advise you that the answers you may give to the questions propounded to you at this interview, or any information or evidence which is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to criminal prosecution for any false answer that you may give under any applicable law of either the Commonwealth or the United States of America.”

5) The letter advised him that he had a right to remain silent. "You have the right to remain silent."

6) The letter advised him of the exact form of discipline he would face if he failed to answer specific types of questions. "but may be subject to disciplinary action by his employer in the form of discharge for your failure to answer material and relevant questions concerning the performance of your duties as an employee of the Commonwealth .”

7) The letter advised him that there would be no rescheduling of the interview unless approved by the Chairman in writing. "No rescheduling of the interview will be effective unless approved in writing by me"

Investigators should consult with their department's policies and procedures and labor attorneys before implementing any changes based on any information provided in this website.

The Appeals Court in the Massachusetts Parole Board v. Civil Service Commissioner set the guidelines for ordering employees to appear and cooperate in an investigative interview. There is no easy way to explain this very complex matter.

The easiest way to explain the right way to order your employees to appear and cooperate at an investigative interview is to be specific about what they are being order to do. They must appear and answer narrowly and specifically defined questions that are material and relevant, regarding the performance of their duties and responsibilities, that they do not reasonably believe would tend to incriminate them.

You should also advise them that they have the right to remain silent about any information that they may have, that they reasonably believe would tend to incriminate them. The fact that you advise them that they must answer questions that they do not reasonably believe would tend to incriminate them is a key factor. Also a key factor is that you serve them with the proper notice of the exact type of discipline that they will face if they fail to appear or if they fail to answer those specific types of questions.

The Carney v. Springfield case (below) told law enforcement managers and supervisors that they must advise an employee of the precise repercussions for failing to answer questions during an investigative interview. The employee has a right to know what sanctions they will be facing before answering questions so that they can make an informed decision as to whether they should answer the question put to them.

In the Carney case a police officer appealed two five-day suspensions and discharge from the police department for refusal to answer questions during internal investigation of alleged narcotics violations by members of the department. The Civil Service Commission approved the suspensions and discharge and police officer sought judicial review.

The District Court upheld the Commission's decision. The police officer filed action in the nature of certiorari. The Superior Court Department, Hampden County, John F. Murphy, Jr., J., granted summary judgment for city. The police officer appealed and the case was transferred. The Supreme Judicial Court, Nolan, J., held that: (1) the department did not properly advise the police officer of his options and specific consequences of his refusal to answer questions put to him and (2) the department did not adequately assure the officer of the scope of his immunity from subsequent criminal prosecution if he answered the questions.

A general warning that the police officer would be subject to "departmental disciplinary proceedings" if he did not answer questions regarding his fitness to perform official duties was insufficient to satisfy employer's obligation to specify precise repercussions that would result if officer failed to respond to questions. The officer's refusal to answer resulted in two five-day suspensions and discharge for insubordination, neglect, disobedience of orders, and act contrary to the good order and discipline of the department.

Where a public employer compels answers in an investigation, the employee's awareness that other employees have been punished in similar circumstances does not render unnecessary the employer's recitation of a warning of precise repercussions that will result if the employee fails to respond to questions. The burden to inform remains on the employer at each appropriate stage of the questioning.

Under the Fifth Amendment an employer may compel an employee under the threat of discharge to answer questions reasonably related to job performance. However, any answers obtained involuntarily may not be used against employee in subsequent criminal proceeding because of the Fifth Amendment privilege against self-incrimination. The Fifth Amendment right against self-incrimination applies only to criminal prosecution, it does not transfer to administrative disciplinary procedures. In other words, information obtained under the Fifth Amendment privilege may be used against an employee in an administrative disciplinary hearing.

One of the biggest questions that arises in these type of situations is: "If the employer directs the employee to answer questions that they (the employee) does not reasonably believe would tend to incriminate them without invoking the constitutional privileges against self-incrimination guaranteed by the United States Constitution and the Massachusetts Bill of Rights?”

This writer believes that the Massachusetts Parole Board Case decides this issue and provides law enforcement personnel with guidelines on how to accomplish this task. A sample letter ordering an employee to appear and cooperate in an investigative interview is available in the next tab.

Investigators should consult with their department's policies and procedures and labor attorneys before implementing any changes based on any information provided in this website.

TO: Officer James Smith

FROM:

Date:

Officer Smith,

This department has received an allegation of misconduct regarding the performance of your duties in relationship to an incident at the Memorial High School on March 24, 2011 at approximately 8pm. Your patrol log for that night indicates that you responded to the scene and handled the incident.

As a result of a preliminary inquiry by the shift supervisor, I believe further investigation into the allegation of misconduct is warranted. Therefore, I require your presence, participation and cooperation in an interview to be conducted at the (Insert Name) Police Department at 919 Main Street, Your Town, Massachusetts, on March 30, 2011 at 10am.

The interview will be solely administrative in nature. Its purpose will be to discover facts and offer you an opportunity to explain events relating to the performance of your duties regarding the incident. The interview will not seek a final determination or adjudication as to whether you ought to be removed from your job, but will be investigative in nature.

Please be advised that you have all the rights and privileges guaranteed by the laws of the Commonwealth of Massachusetts and the Constitution of this state and of the United States, including the right to the union representation of your choice at the inquiry.

I would like to advise you that you have a right to remain silent about any matter that you reasonably believe might tend to incriminate you, but this must be done on a question by question basis when you appear at the interview.

I would also like to advise you that you will be required to answer narrowly and specifically designed questions that are material and relevant to the performance of your duties that would not tend to incriminate you at the interview. Failure to appear at the interview or answer questions that are material and relevant to the performance of your duties that would not tend to incriminate you, may result disciplinary action by the department in the form of discharge.

As you are aware as a law enforcement officer, you are held to the highest standard of ethical conduct and behavior. You are required to answer questions that would not tend to incriminated you directly, truthfully and to the best of knowledge and recollection. The intentional omission of significant and pertinent facts will be considered untruthfulness. The intentional making of untruthful statements or answers to questions will result in discipline with my specific recommendation of discharge from service.

Also be advised that no rescheduling of the interview will be allowed unless it is approved by me in writing 24 hours prior to the time of the interview.