IPMA-HR Joins Amicus Brief in Fifth Amendment Case

The International Public Management Association for Human Resources (IPMA-HR) joined an amicus brief filed by the State and Local Legal Center in a case (City of Hays, Kansas v. Matthew Jack Dwight Vogt, No. 16-1495) that has been accepted for review by the United States Supreme Court. The case raises the issue as to whether the Fifth Amendment’s Self-Incrimination Clause is violated when a compelled statement is used to assess probable cause at a preliminary hearing, but not to adjudicate guilt at a criminal trial. The National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and the National Public Employer Labor Relations Association also joined the brief.


Mr. Vogt, a police officer for the City of Hays applied for a job with another police department where he revealed that he kept a knife for personal use after coming into possession of it while working as a police officer for the City of Hays. He was given a conditional offer of employment on the condition that he informed the City of Hays about the knife. The Police Chief for the City of Hays required Mr. Vogt to document the facts concerning his possession of the knife. Mr. Vogt wrote a one-sentence report related to his possession of the knife and then resigned, giving two weeks’ notice to the City. Further information detailed the circumstances of how Mr. Vogt came into possession of the knife. This led to the Police Chief requesting that the Kansas Bureau of Investigation initiate a criminal investigation resulting in the other police department withdrawing its job offer. Criminal charges were subsequently filed and a prosecutor offered the statements of Mr. Vogt at a preliminary hearing.


The District Court dismissed Mr. Vogt’s claim. The Tenth Circuit reversed finding that Mr. Vogt had presented a monetary damages claim against the city under Section 1983 based on the prosecutor’s use of compelled statements at the preliminary hearing.


The brief states that “Permitting government employers to be held liable for damages in this situation threatens to chill all government employers from properly supervising their employees in the performance of their official duties.” The brief notes that the City of Hays had no control over the decision of Kansas authorities to bring criminal charges against Mr. Vogt. The brief declares that failure to reverse the Tenth Circuit’s decision will result in “litigation against government employers that they cannot prevent, except by being less vigilant in rooting out employee misconduct.”


In questioning the Tenth Circuit’s ruling, the brief observes that the Police Chief could reasonably have relied on Mr. Vogt to assert his Fifth Amendment privilege if the answers might incriminate him. The brief concludes that “Imposing liability on a government employer for the conduct of a prosecutor over whom it has no control significantly threatens to chill government employers from exercising prudent oversight in the workplace.”


The brief is available below. The US Supreme Court will decide this case during its current term that will end in June 2018.