In March of 2016, the Alaska Department of Corrections (DOC) received a complaint from one of Sergeant David Wilson’s subordinates alleging, among other grievances, that Wilson had pressured a second subordinate to provide him with her prescribed narcotic medications. When interviewed, the second subordinate confirmed she provided Wilson with Oxycodone and Methadone on seven or eight occasions between 2011 and 2014. She alleged that on days when she had called in sick Wilson came to her house during work hours and entered without knocking. She believed Wilson “took advantage of her vulnerability by targeting his requests when he knew she would be medicating and compromised.” In a later deposition, Wilson admitted he had asked for and accepted medication from his subordinate, explaining he “was challenged with pain issues” at the time.
On March 8, 2016, DOC investigator Terrence Shanigan called Wilson to request an “entirely voluntary” interview. Wilson retained counsel who spoke with Shanigan by phone later that day. Wilson’s counsel asked whether the interview had “anything to do with any potential job discipline,” and Shanigan replied, “No.” Shanigan identified himself as a commissioned officer rather than a Human Resources representative and said, “I’m only interested in anything that potentially has any criminal nexus to it.” Shanigan told Wilson he was free to not answer any questions, and if he came, he could leave at any time.
DOC’s initial plan was to allow the criminal investigation to run its course; only after that would DOC “move on the personnel matters.” But DOC quickly changed its approach to pursuing concurrent criminal and administrative investigations.
The following day, Wilson received written notice from DOC’s human resources division that he was required to report to a March 14 interview to discuss multiple allegations of misconduct. Bold lettering stated that “due to the potentially criminal nature” of these allegations, Wilson was permitted to “choose not to answer specific questions” which would “not result in negative inferences made against him.” But the notice also informed Wilson that DOC Standards of Conduct required him to “fully cooperate by providing all information that he may have concerning the matter under investigation,” adding that “full cooperation involves responding to all questions truthfully and completely.”
In his first interview, DOC gave Wilson inconsistent signals on whether his answers to questions were compelled, prohibiting their use against him in a criminal proceeding. Later, DOC gave Wilson notice of a second interview, stating that he “would be expected and compelled to answer all questions,” and that “refusal to answer a question will be considered insubordination which is also grounds for discipline up to and including dismissal.”
At the start of the second interview, Shanigan ordered Wilson to “fully cooperate,” and indicated that “any statements made by you during these interviews cannot be used against you in any subsequent criminal proceeding nor can the fruits of any of your statements be used against you in any subsequent criminal proceeding. If you refuse to answer questions relating to the performance of your official duties, you’ll be subject to dismissal.” Wilson twice indicated that he understood his rights and participated in the interview. However, during the interview Wilson refused to answer certain questions based on the advice of his attorney, who was not present.
The same scenario played out on the third occasion DOC interviewed Wilson. The investigators ordered Wilson to answer their questions, assuring him that his answers could not be used in a subsequent criminal prosecution, Wilson indicated he understood his rights, and refused to answer specific questions on the basis of advice from his non-present attorney.
When DOC terminated Wilson, he sued, claiming a violation of his due process rights. The heart of his appeal was that DOC’s actions violated his rights under Garrity v. New Jersey.
The Alaska Supreme Court disagreed and upheld Wilson’s termination. The Court found that “the State twice advised Wilson of his immunity. Wilson twice affirmed he understood that advisement and has submitted no evidence to the contrary. Therefore, even if we did require the State to notify employees at compelled interviews of Garrity immunity, Wilson would fail to show a violation of his privilege against self-incrimination.
“Wilson argues only that the State violated his right against self-incrimination by terminating him for refusing to answer questions without notifying his attorney that his answers would not be used against him criminally. Wilson argues that, at least when an employee has retained counsel, the State should be required to provide these notifications in a manner enabling consultation with counsel in the presence of counsel, directly to counsel, or in advance and in writing to the employee.
“Wilson asks us to require more of state employers – either notice to counsel or notice in advance – than any court has yet required. Providing notice of Garrity immunity alongside the advance written notice of a compelled interview would avoid confusion by public employees and forestall any possibility of a successful challenge to a Garrity notification’s effectiveness. But because the State advised Wilson of his Garrity immunity and the consequences of refusing to answer, and Wilson affirmed he understood those advisements and has made no claim of confusion, the State did not violate Wilson’s privilege against self-incrimination.”
Wilson v. State of Alaska, 2021 WL 138857 (Alaska 2021).
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