No Unfettered Right to Remain Silent

Don’t Let Bad Advice Ruin Your Career

One of the worst pieces of advice I ever heard or read is advice from an employee, or worse, a union representative, telling an employee “you don’t have to answer questions” in response to supervisor questions, administrative fact findings, or other employer type investigations.  Compounding this bad advice is the truly held belief by many there are no repercussions for “remaining silent” when confronted by the Agency concerning questions regarding employment related activity (of course, the Agency cannot ask you about non-work related activity unless nexus exists).  Recently, a large union representing employees of the Veterans Administration issued such guidance on it’s national website (copied and pasted below) in response to the recent patient wait list controversy.  In this example, national teams are visiting Veterans Health Administration sites to investigate whether those sites are engaging in the controversial “secret” wait list controversy.  The union publicly issued the advice below.

AFGE NVAC AFGE NVAC

This post is not intended to present a treatise on the impact of well known cases of Garrity and / or Kalkines on the issue as most federal employees will rarely find themselves in the predicament of deciding between criminal and administrative issues. If you need expert legal advice in this regard, I recommend the law firm of Gattey and Baranic (no affiliation with InformedFed.com ) as they are recognized legal experts in this area and I was very familiar with their practice in the application of Garrity and Kalkines.  Instead, we will cover the simple issue of employee “non-cooperation” and save the detailed Garrity / Kalkines discussion for another day.  We will also not consider various intricacies as to whether a federal employee has a “right” (exclusive of the 5 USC 7114(a)(2)(B)) to be notified of “charges” during an investigation (they do not, see Hannah v. Larche, 363 U.S. 420, 441-42, 80 S. Ct. 1502, 1514-15, 4 L. Ed.2d 1307 (1960)) OR whether a federal employee has a right to “counsel” during an investigation by the employer (they have a right to lawyer but not a non-lawyer), see Wilson v. Swing, 463 F. Supp. 555, 560 (M.D. N.C. 1978); Boulware v. Battaglia, 344 F. Supp. 889, 903 (D. Del. 1972), aff’d, 478 F.2d 1398 (3d Cir. 1973) ; and 5 U.S.C. § 555(b)). Those topics deserve their own attention.

Simply Stated- Federal Employees Maintain a Duty to Cooperate

We could go into vivid detail and hundreds of legal citations (we will avoid them as much as possible), all to tell you the simple truth federal employees do not have a “right to remain silent” without repercussions. Of course, a federal employee could choose to not answer questions, much in the same way they could do the same during a law enforcement criminal investigation.  However, a federal employee refusing to answer questions or otherwise cooperate will likely face removal from employment with an uphill battle on appeal (MSPB does not take kindly to employees in this category).  In fact, as a senior level Employee Labor Relations Consultant,  I routinely advise senior managers to initiate removal proceedings immediately in such instances.  Failing to do so calls into question the integrity of government operations.

As noted by Broida, “The privilege against compulsory self-incrimination may be asserted in any “proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory” where the individual reasonably believes that his statements may be used against him in a criminal proceeding.” See, Garrity v. New Jersey, 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed.2d 562 (1967) in which the Court held,  the court held the threat of removal from one’s position constituted “coercion”, rendering statements compelled under such a threat inadmissible in a criminal proceeding (though intentionally false statements are not immune and can be used against employee).  This is known as the “Garrity exclusionary rule.”  It is important to note the protection concerns the use of information obtained in criminal proceedings and not the security of the employee’s employment; seeking to avoid the employee’s deprivation of Constitutional protections only in criminal proceedings.  This amounts to the functional equivalent of “use immunity” and the employer cannot force the employee to waive it and therefore, the employee is protected against self-incrimination when in such circumstances, but his job is not protected. See,  Uniformed Sanitation Men v. City of New York, 392 U.S. 280, 283, 88 S. Ct. 1917, 1919, 20 L. Ed.2d 1089 (1968)  However,  such immunity is not without repercussion. To remove the employee for refusing to answer questions or otherwise cooperate, the Agency simply needs to advise the employee 1) refusal to answer questions may result in his/her removal and 2) any statement made will not be used against him/her in a criminal proceeding.  We encounter this situation in nearly every case we encounter in that an Agency will so advise an employee and clearly threaten removal.  This action(s) trigger the Garrity immunity whereas an agency simple assurance of immunity would not bind law enforcement. See, Uniformed Sanitation Men v. City of New York, 426 F.2d at 627.  Once Garrity immunity is triggered (or otherwise provided), the agency may lawfully remove the employee. In short, an employee may be removed for not answering questions in an agency investigation if he is adequately informed he is subject to removal for not answering questions (cooperating) and that his replies and their fruits cannot be employed against him in a criminal case. However, an agency could not sustain a charge an employee refused to cooperate in an agency investigation, with potential criminality, when the agency failed to provide the employee a straightforward, unambiguous statement of immunity from criminal prosecution. See, Modrowski v. VA, 252 F.3d 1344, 1347-1353 (Fed. Cir. 2001).

But…..But….I got Bad Advice

Often, employees act on bad advice from friends, family, and union officials.  A federal employee claiming an excuse of bad advice faces a very uphill battle on appeal.  The Merit Systems Protection Board dismissed an argument that the penalty should be mitigated because the appellant received incorrect advice from counsel. See, Weston v. DHUD, 14 MSPR 321 , 326 (1983). Affirmed in Weston v. DHUD, 724 F.2d 943, 949 (Fed. Cir. 1983).  In that case, the Board opined, “We can think of few less serious first offenses than a refusal to cooperate in an agency investigation of abuse of office when criminal immunity has been granted.” Id. at 950. Case law is incredibly supportive of management actions in removing employees who fail to answer questions in any respect.  For example, refusing to answer a supervisor’s questions, refusing to cooperate with an investigation, and refusing to answer questions posed by Agents from the Office of Inspector General.

Summation

Federal employees need to understand they occupy positions of public trust.  Accordingly, they must abide by certain standards.  Even the mere unqualified assertion a federal employee is free “to remain silent” when asked a question by a supervisor, while laughable, can have disastrous personal and professional consequences.  Union officials and representatives should be very careful in the advice they give employees and the context in which they provide such advice.  In fact, the issue of Garrity and Kalkines and any claims of immunity (remember, there is no such “thing” as administrative immunity) are arguably far beyond the scope of most union personnel.  Therefore, they must proceed with caution as should the affected employee.

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