between the Public and Private Sector
2.3 Advantages of the Public Sector
The second most significant difference separating the public and private sector is the enormous power and authority the public sector possesses. Law enforcement and its companion, the criminal justice system, have at their disposal, mechanisms and tools out of reach of those in the private sector. Let’s briefly examine a few.
2.3.1 Powers of Arrest
Designated individuals in law enforcement and the criminal justice system have the incredible power of arrest. Unlike citizens (corporate security professionals among them), the police, district attorneys, and judges can under a host of circumstances arrest people, subject them to custodial interrogations, and even incarcerate them. By fulfilling a few simple requirements and with rather minimal justification, the public
sector has the power to detain, forcibly question, and interrogate. In venues such as a properly convened court, the failure to answer a question or cooperate is a crime. The crime is called contempt of court and can be punished with incarceration. There is no equivalent in the private sector. Citizens can, under very special circumstances, make an arrest, but in doing so incur significant liability. To forcibly question or hold another against his will constitutes false imprisonment and is civilly actionable.
2.3.2 Search and Seizure
The public sector also has at its disposal the power to search people and their belongings and seize property. The law permits one’s person, property, and papers be searched and/or seized by the government. Although the citizenry enjoys con-stitutional protections under the Fourth Amendment of the U.S. Constitution and elsewhere against abuse of this power, it is a critical tool in the conduct of criminal investigations and the enforcement of public law. The closest thing to it in the pri-vate sector is an employer’s search policy. Workplace searches of desks, lockers, and other work areas are permissible only where an employee does not have a reason-able expectation of privacy. The employer can substantially reduce the expectation of privacy by advising employees that such areas are subject to inspection, with or without notice; restricting private use of these areas by issuing its own locks and retaining duplicate keys; and by crafting policies that limit worker’s expectation of privacy and permit searches under any circumstances.
Regardless, the powers available to the employer pale compared to those of the government. The ability to search and seize property in the spirit of a criminal inves-tigation or inquiry creates a huge differentiator between the public and private sector.
2.3.3 Grand Jury and Special Inquiries
The ability to convene a grand jury and forcibly extract testimony, absent represen-tation of even the suspect, is unmatched in the private sector.1 During such pro-ceedings, a citizen’s failure to cooperate may be ruled contempt and her failure to tell the truth may be deemed perjury. Although employees have an affirmative duty to cooperate in an organizationally sanctioned investigation, an employee, in fact, may refuse to cooperate (and face possible discipline) and has no obligation (other than an ethical one) to tell the truth.
Tip: An employee’s refusal to cooperate in her employer’s investigation is action-able. Under some circumstances, the termination of uncooperative individuals can be justified merely on their refusal to participate and answer a fact finder’s questions. The subject’s lack of cooperation is called insubordination.
However, there are limitations to the length an employer can go to get the cooperation of an interviewee. In the private sector, it is universally accepted that employers may not lie, make undeliverable promises, or threaten an employee to obtain her cooperation. Figure 2.1 illustrates those limitations.
These private sector limitations are construed not from law, but policy and ethi-cal restraints imposed on the employer. Some of these restraints are self-imposed, others are industrially or socially imposed. Regardless, their driver is the commit-ment to fairness, integrity, and social responsibility. Interestingly, we do not impose these same values on those who conduct custodial interviews (ahem, interrogations) in the public sector.
2.3.4 Prosecution and Punishment
Employers believe they can prosecute lawbreaking employees, but they cannot.
Unfortunately, it’s a widely held notion even in the private security industry. Only the government can prosecute someone. Even more interesting is the fact that employers cannot even ask the government to prosecute someone. In every jurisdiction of which I am aware, the improper influence of the prosecution is in and of itself a crime.
Public Sector Private Sector Lying Generally acceptable to
the extent the falsehood merely embellishes the quantity or quality of evidence.
Unacceptable and widely considered unethical.
Making promises Generally acceptable if relied upon by a defendant in making a confession. Some promises, however, are acceptable (see Dempsey, page 191 for several examples).
Unacceptable and widely considered unethical.
Threatening The use of threats is considered inherently coercive and their use may render a confession as involuntary.
Unacceptable and widely considered unethical—may even be unlawful if threat is used for the purpose of extortion.
Figure 2.1 Contrasting the lengths to which those in the public and private sec-tor can go to obtain the cooperation of an interviewee.
Furthermore, an employer’s threat of prosecution may constitute criminal extortion.2 Again, contrary to popular belief, the employer can only file a complaint. It is the duty of the government to determine if a law might have been broken and, if so, what charges should be brought based on the evidence available. In property crimes, such as theft, if the employer was the victim, its agent (an owner or manager) could swear out a complaint and ask that the matter be investigated. The authorities would then work the case and hopefully find the suspect and charge him. On the other hand, in matters involving workplace substance abuse, even selling illegal drugs at work, the employer is not the victim. The government is technically the victim and no com-plaint is necessary. It is the sole discretion of the government to pursue the matter or not. The employer cannot decide who or what offenses shall be prosecuted.
Successful prosecutions also result in punishment. The punishment is designed to fit the crime and ranges from something as passive as a suspended sentence up to and including execution. The private workplace has nothing equivalent. And, employees are not punished, they are disciplined. The notion of workplace punishment does not exist in a free society. However, many liberal-minded triers-of-fact consider employee termination the civil equivalent of capital punishment. As such, termination is fre-quently considered extreme discipline and only used in extreme circumstances.
Workplace discipline also does not produce a public record. Criminal prosecu-tion, except that of minors, produces a criminal record capable of following the offender his entire life. Not so in the workplace. Employee discipline is a private matter and rarely should co-workers even be told what discipline was dispensed against a co-worker. In the interest of employee privacy and confidentiality, work-place discipline stays in the workwork-place and any record of it remains under strict employer control. Even prospective employers find it difficult to learn the terms and conditions of an applicant’s separation from a prior employer.
The public sector is not bound by such construct. In addition to some of the most powerful investigative tools available only to it, the public sector is largely uncon-cerned about individual privacy and confidentiality. Of course, its investigations are draped in confidentiality, but the process and results are ultimately disclosed and made available to public scrutiny. In fact, it is this public disclosure that keeps the system sound and its participants honest. The public aspect of a criminal trial is so critical to the fair and proper workings of the process that it is constitutionally protected. The private sector is not bound by such rules and procedures. Only if challenged must the employer make limited disclosures. Even then, special privi-leges abound ensuring certain communications and evidence remains confidential.
2.3.5 Resources
The question of whether it is the public sector or private sector that has greater resources is debatable. Both sectors have operational and fiscal limitations. Both have manpower and technological limitations. But even today, Microsoft® with a reported $80 billion cash reserve and the U.S. federal government with an annual
deficit of something near $1 trillion Microsoft could not outspend the government.
Nor could Microsoft® field more people than the government. The total combined capability of all federal, state, and local law enforcement authorities in the United States is unmatched in the world.
On the micro level, I also would argue that the government, at the federal, state, or local level, can probably throw more resources at any particular case than almost any defendant. These same government resources probably can outgun most corpo-rations as well. There are examples, of course, to the contrary. The federal govern-ment has waged battle against the likes of Microsoft and IBM® (IBM Corporation, White Plains, New York) in federal court and substantially lost in several cases. In several of these instances, the defendant threw more resources at the case than the federal government and effectively overwhelmed the system. One case in point was the IBMantitrust case that finally ended in the 1970s. During discovery, IBM pro-vided over 100,000,000 documents. Analysts at the time speculated that it would take the presiding authority 3,000 years just to read all of the evidence.