UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN – SOUTHERN DIVISION
POLICE OFFICERS ASSOCIATION OF MICHIGAN
and its member,
|v.||Case No. 00-CV-75339-DT
Hon. Lawrence P. Zatkoff,
DONALD HOMAN, in his official
capacity, LIVINGSTON COUNTY
through its BOARD OF COMMISSIONERS
|Magistrate Wallace Capel, Jr.
On removal from Livingston
County Circuit Court
Case no. 00-18228 CL
FRANK A. GUIDO (P32023)
Police Officers Association of Michigan
27056 Joy Road
Redford, MI 48239-1949
JOHN R. McGLINCHEY (P39178)
Cohl, Stoker & Toskey, P.C.
Attorneys for Defendants
601 N. Capitol Avenue
Lansing, MI 48933
At a session of said court, held in the
United States Courthouse, in the City of
Detroit, State of Michigan, on 24 OCT 2001
LAWRENCE P. ZATKOFF
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
CHIEF UNITED STATES DISTRICT JUDGE
The Court, upon being advised that the parties stipulate and consent to entry of judgment in the above-captioned matter, and upon being satisfied that the terms and conditions of the stipulation and consent to entry of judgment are within the jurisdiction of the Court to order and are in compliance with existing law, and upon being otherwise fully advised in the premises,
NOW, THEREFORE, it is the judgment of the Court, as follows:
1. The Court, by its opinion and order of July 11, 2001, issued the following findings of law:
a. The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself …”
b. The privilege protects individuals from being compelled to answer questions in any type of proceeding where the answers may incriminate him or her in future criminal proceedings.
c. When public employees are questioned about the performance of their public duties, courts must balance the well-recognized principle behind the privilege against self-incrimination and the government’s need to obtain information “to assure the effective function of government.” Therefore, “immunity is required if there is to be ‘rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.'”
d. In Garrity v New Jersey, 385 US 493 (1967), the Supreme Court held that the Fourteenth Amendment “prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office and that it extends to all, whether they are policemen or other members of our body politic.”
e. In Gardner v Broderick, 392 US 273 (1968), the Supreme Court opined that “the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment.”
f. Public employers can question employees about the performance of their duties as long as the employees are not compelled to waive immunity from criminal prosecution based on the statements given.
g. The Sixth Circuit has specifically held that the privilege is not self-executing and that the person claiming the privilege must affirmatively assert it. Morgan v City of Columbus, No. 92-4086, 1993 US App LEXIS 25698, at 17-18, (6th Cir. Oct. 1, 1993).
2. The parties shall comply with the following procedure:
a. When the employer orders an officer to submit a report, statement, or answer questions pertaining to conduct, subject to discipline for failure or refusal to submit a report, statement, or answer to questions, the officer has the constitutional right to assert the Fifth Amendment privilege against self-incrimination with respect to use of the information submitted against the officer in a criminal proceeding.
b. The information submitted may be used against an officer in an internal disciplinary proceeding.
c. The employer may disclose the information to third parties, consistent with law; however, disclosure to third parties by the employer shall not constitute a waiver of the asserted privilege by the employee.
d. Assertion of the Fifth Amendment privilege against self-incrimination shall, if made in writing, be submitted separate from the report or statement, in a format the same as or substantially similar to, the following:
“On _____________ (date) __________ (time), at _____________ (place) I was ordered by __________________ (superior officer, name & rank) to submit this report (statement) as a condition of continued employment. In view of possible job forfeiture, I have no alternative but to abide by this order and to submit this compelled report (statement).
It is my belief and understanding that this report (statement) will not and can not be used against me by any governmental agency or a related entity in any subsequent proceedings, other than disciplinary proceedings within the confines of the department itself.
For any and all other purposes, I hereby assert my Constitutional right to remain silent under the FIFTH and FOURTEENTH AMENDMENT to the UNITED STATES CONSTITUTION and any other rights prescribed by Michigan laws. Further, I rely specifically upon the protection afforded me under the doctrines set forth in Garrity v New Jersey, 385 US 493 (1967), Gardner v Broderick, 392 US 273 (1968), and their progeny, should this report (statement) be used for any other purpose of whatsoever kind or description.”
e. The employer shall not order or otherwise compel an officer, under threat of discipline, to waive the immunity of the asserted Fifth Amendment privilege against self-incrimination with respect to any submitted statement or report or answers to questions.
f. Employees shall not condition their compliance with a lawful order to submit reports, statements, etc. on non-disclosure to third parties by the Employer.
3. The propriety of the discipline imposed on Plaintiff, shall be determined through the collective bargaining agreement grievance arbitration process.
4. By entering this stipulation and consent to entry of judgment, neither party admits any wrongdoing in connection with the alleged misconduct or disciplinary action involving Plaintiff,; nor should this stipulation and consent to entry of judgment be construed as either an admission of wrongdoing by either party or as a waiver of any claim of wrongdoing by the other party.
IT IS FURTHER ORDERED, in accordance with the Stipulation and Consent to Entry of Judgment of the Parties, that no costs or attorney fees are awarded to either party.
Approved by counsel
Approved by counsel for Plaintiff for Defendants
Frank A. Guido (P32023) John R. McGlinchey (P39178)
General Counsel Cohl, Stoker & Toskey, P.C.
Police Officers Association Attorneys for Defendants
HON. LAWRENCE P. ZATKOFF
CHIEF UNITED STATES DISTRICT JUDGE