Judge Stahl Notes Split Re Disclosure Obligation of Government Employers Interrogating Employees Granted Immunity

Per Judge Stahl, dissenting in Sher v. U.S. Department Of Veterans Affairs, --- F.3d ----, 2007 WL 1532655 (May 29, 2007):

Given the complexity of this area of the law, it is not surprising that the circuits are split as to whether a government employer is required to advise an employee of his rights and obligations before he can be disciplined for maintaining his silence. As I read the cases, three circuits-the Fifth, Eighth, and Eleventh-have arguably held that the government employer does not have a disclosure obligation. See Hill v. Johnson, 160 F.3d 469, 471-72 (8th Cir.1998) (“[T]he mere failure affirmatively to offer immunity is not an impermissible attempt to compel a waiver of immunity.”); Hester v. City of Milledgeville, 777 F.2d 1492, 1496 (11th Cir.1985) (“We fail ... to see how the city's failure to offer the plaintiffs use immunity could make any constitutional difference.... [A]ny grant of use immunity to the plaintiffs would have been duplicative.”); Gulden v. McCorkle, 680 F.2d 1070, 1075 (5th Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983) (“Failure to tender immunity was simply not the equivalent of an impermissible compelled waiver of immunity.”). However, even among these circuits, the answer at least in the Fifth and Eleventh circuits is not wholly clear.

In contrast, three circuits--the Second, Seventh, and the Federal Circuit--have concluded that the government has a disclosure obligation. See Atwell v. Lisle Park Dist., 286 F.3d 987, 990 (7th Cir.2002) (“[T]he government employer who wants to ask an employee potentially incriminating questions must first warn him that because of the immunity to which the cases entitle him, he may not refuse to answer the questions on the ground that the answers may incriminate him.”); Modrowski v. Dep't of Veterans Affairs, 252 F.3d 1344, 1351 (Fed.Cir.2001) (“Invocation of the Garrity rule for compelling answers to pertinent questions about the performance of an employee's duties is adequately accomplished when that employee is duly advised of his options to answer under any immunity actually granted or remain silent and face dismissal.”); Sanitation Men, 426 F.2d at 627 (permitting the firing of an employee for remaining silent where “only pertinent questions” are asked “about the performance of his duties” and he is “duly advised of his options and the consequences of his choice.”). In addition, the Tenth Circuit has suggested the same result in dicta. See In re Grand Jury Subpoenas Dated December 7 and 8 v. United States, 40 F.3d 1096, 1102 n. 5 (10th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1957, 131 L.Ed.2d 849 (1995) (“While this case does not require us to decide whether the government must affirmatively advise [an employee of his rights under Garrity ], other circuits arguably have adopted such a requirement.”).