Most federal agencies have an Office of Inspector General (“OIG”) which serves numerous functions, including investigating alleged misconduct by federal employees. In doing so, OIG agents typically interview witnesses as well as the subject or target of the investigation. Before entering an interview with an IG agent, you should know your rights.
Generally speaking, federal employees have a duty to cooperate with internal investigations that are purely administrative in nature. As a federal employee, you still have the right against self-incrimination guaranteed by the Fifth Amendment and you do not have to answer questions if doing so may have criminal consequences for you.
Because some misconduct can have criminal consequences, it is important to understand whether you are in fact required to cooperate with an IG investigation. There are times when the IG can require you to cooperate and times when it cannot. You need to know the difference before answering questions from an IG agent.
Typically before an IG interview, the investigator will provide you with a written warning – either a Garrity warning or a Kalkines warning.
What is a Garrity warning?
A Garrity warning protects employees from being compelled to incriminate themselves. A Garrity warning will advise you that you can refuse to participate in the investigation without facing discipline under your Fifth Amendment right against self-incrimination. If the employee chooses to voluntarily participate in an interview, their answers can be used in a criminal or administrative proceeding.
A typical Garrity warning may look like this:
“You are being asked to provide information as part of an investigation being conducted by the Office of the Inspector General 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.”
The Garrity warning was born out of the Supreme Court case Garrity v. New Jersey, 386 US 493, 500 (1967). In that case, the New Jersey Attorney General was conducting an internal investigation into a group of police officers. The AG warned the officers that if they refused to answer his questions, they would be removed from their position. The Supreme Court held that coerced confessions obtained under a threat of removal from their position are not valid.
What is a Kalkines warning?
A Kalkines warning grants a federal employee criminal immunity in exchange for his cooperation with an investigation.
The Kalkines warning is the result of Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973). In this case, an employee who worked for U.S. Customs was faced with an allegation of taking bribes. The employee was being questioned regarding a disciplinary matter while he was under federal criminal investigation for the same allegation. Faced with potential criminal prosecution, the employee chose not to answer any questions posed by his employer who subsequently fired him. The Court held that the government could not fire an employee for invoking his Fifth Amendment right against self-incrimination.
When the IG has provided you with a Kalkines warning, then you are required to answer their questions. If you do not, you can be disciplined, up to and including removal, but your answers cannot be used against you in a criminal proceeding.
What should you do if you are asked to be interviewed by the IG?
If you are contacted by the IG’s office and asked to participate in an interview, ask a few key questions:
- Am I entitled to have an attorney present?
- Am I the subject or focus of the investigation?
- Is this a voluntary or compelled interview?
- Am I allowed to refuse to answer questions?
- Will you give me a written notice of my rights?
Regardless of these answers, it is in your best interests to immediately reach out to a Federal Employment Attorney.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.
Published: June 10, 2022 | By: Samantha Nicodemus, Associate, Alden Law Group