Investigations, whether formal or informal, are conducted to impartially gather and compile all relevant evidence to determine if it is more likely than not that misconduct occurred. The Agency and the investigator have the right to full cooperation from all federal employees. Refusal to cooperate is grounds for action, up to and including removal. Employees may also have rights and warnings that should be given prior to interviewing civilians during an investigation.
Weingarten rights apply to all employees who are members of a bargaining unit. This right entitles a bargaining unit employee to union representation during an investigatory meeting. This right is based on a Supreme Court decision in National Labor Relations Board v. Weingarten, Inc., a private sector case.
There are four elements that must be met to trigger the Weingarten right:
- An examination, of a bargaining unit employee by an Agency representative;
- The examination must occur with an investigation;
- The employee must reasonably believe that the examination may result in discipline; and
- The employee must request representation.
The Federal Labor Relations Statute does not require that an employee be advised of the Weingarten right prior to questioning the employee. However, refer to the applicable collective bargaining agreement for any negotiated requirements.
Garrity warnings are given when an employee is requested to give information on a voluntary basis in connection with her own administrative misconduct and the answers might be used in a future criminal proceeding. The employee is informed of her right to remain silent if the answers may tend to incriminate her; that anything said may be used against her in a criminal or administrative proceeding; and she cannot be disciplined for remaining silent. This right is based on a Supreme Court decision in Garrity v. New Jersey, 385 U.S. 493 (U.S. 1967), a private sector case. This is the one time that an employee can choose to remain silent in an investigation and not be disciplined for failing to cooperate with an investigation.
If an employee is given the Garrity warning, he or she will be asked to sign and date the warning. The Garrity warning states in part:
- You are being asked to provide information as part of an investigation being conducted into alleged misconduct and for improper performance of official duties.
- This is a voluntary interview. Accordingly, you do not have to answer questions. No disciplinary action will be taken against you solely for refusing to answer questions.
- Any statement you furnish may be used as evidence in any future criminal proceeding or agency disciplinary proceeding, or both.
In investigations where the government has chosen to forgo any criminal prosecution of an employee, and instead pursue administrative remedies and discipline, the agency may compel the employee to answer questions. If the employee's statement would only be used to determine whether administrative discipline is appropriate, and there is no foreseeable criminal culpability on the part of the employee, then a Kalkines warning would be appropriate.
In Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973), the U.S. Court of Claims held that an employee cannot be disciplined for remaining silent unless he is informed that his responses and their fruits cannot be used against him in a criminal matter. The government cannot discharge an employee based on his refusal to answer questions when he has not been informed that he would be granted immunity from criminal prosecution based on, and as a result of, the answers to such questions.
For administrative investigations, employees are required to cooperate and they may be disciplined if they choose not to cooperate and answer questions. During administrative investigations, an employee’s statement is only used to determine whether administrative discipline is appropriate and there is no criminal culpability on the part of the employee. If an employee chooses not to cooperate during an administrative investigation, he should be informed of the Kalkines warning and if he still chooses not to cooperate, then the employee may be removed from the Federal government, Kalkines v. United States, 107 LRP 36880, 473 F.2d 1391 (Ct. Cl. 1973).
Under the 5th (Fifth) Amendment, Federal employees have the right to remain silent to avoid self-incrimination. However, if the Kalkines Warning is issued and removes the threat of criminal prosecution, the right to remain silent no longer applies. If an employee continues to remain silent after receiving a Kalkines warning, the Agency may pursue removal for failure to cooperate in an investigation as long as the employee was clearly notified to either answer the questions or refuse to answer and they may be removed from Federal service.
The Kalkines warning informs the employee that:
- He/She will be asked a number of specific questions concerning the performance of his/her official duties.
- He/She has a duty to reply to these questions, and agency disciplinary action, including dismissal, may be taken if he refuses to answer, or fails to reply fully and truthfully.
- The answers he or she furnishes and any information or evidence resulting from those answers may be used in the course of civil or administrative proceedings.
- Neither his or her answers nor any information or evidence gained by reason of such statements can be used against him/her in any criminal proceedings, except that if he or she knowingly and willfully provides false statements or information in his/her answers, he or she may be criminally prosecuted for that action.