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Advice on the Advisement of Rights

Advice on the Advisement of Rights
By Brian J. Wagner
Past NAPS President

Per Section 651.2 of the Postal Service’s Employee and Labor Relations Manual (ELM), whenever an EAS employee is called to an investigative interview (I&I), they have the right to representation of their choice. This right extends to investigations by the Postal Service Office of Inspector General (OIG).

OIG agents have been trained to comply with all reasonable requests for union or management representation during an investigation. However, are you aware of the Advisement of Rights in an OIG investigation? Here’s the scoop:

Per ELM Section 665.3, Postal Service employees must “cooperate in any postal investigation, including Office of Inspector General investigations.” The USPS OIG initiates investigations based on allegations of fraud and misconduct derived from multiple sources, including its hotline, the Postal Service and Congress.

Whenever the OIG has reasonable grounds to believe there has been a violation of federal criminal law, it makes a report to the attorney general (AG). The AG has issued guidelines for the OIG when conducting investigations, including specific warnings to be used. These warnings are called Advisement of Rights.

The first Advisement of Rights is the Miranda warning. It is given to a subject of an OIG investigation when they are placed under arrest or in custody, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Miranda advises a subject they have the right to remain silent. Any statements the subject makes can be used against them and they have a right to an attorney during questioning. If they cannot afford an attorney, one will be appointed for them.

Per NAPS DDF Provider Al Lum, if a NAPS member ever is read their Miranda rights during an OIG investigation, the NAPS representative should advise the member to request an attorney to be present before the investigation proceeds. The NAPS representative should leave the I&I immediately, as the representative could be called as a witness for the OIG. There is no client-attorney privilege between a member and their NAPS representative, unless their representative also is an attorney, which most likely isn’t the case.

The second Advisement of Rights is a Garrity warning. It is given to subjects in OIG investigations who are not under arrest or in custody, as suggested by Garrity v. New Jersey, 386 U.S. 493 (1967). Garrity warnings are designed to ensure employees’ interviews are voluntary.

A Garrity warning advises subjects they may remain silent on matters where there may be criminal exposure, but must report on activities for which there is no criminal exposure. Subjects also are reminded the interview is strictly voluntary.

Kalkines is the third Advisement of Rights warning. It is given to subjects of OIG investigations to assure employees their statements may not be used against them in any criminal proceeding, in accordance with guidance in Kalkines v. U.S., 473 F.2d 1391 (Ct. Cl. 1973). Courts long have held that, once an individual’s statements are immunized, the employee no longer has the right to remain silent.

When given a Kalkines warning, the employee has a duty to respond to investigative questions; the agency may take disciplinary action if an employee fails to cooperate or answer fully and truthfully. Employees also are told that statements they provide may be used in civil or administrative proceedings, but cannot be used in criminal proceedings.

Today’s takeaway: During an OIG investigation, ask if you are a suspect in a criminal matter. If so, immediately contact a criminal defense attorney who handles federal crimes.

Do not consent to a search of person or property. Ask to see a search warrant. Do not waive any rights, including the right to remain silent. Do not consent to any polygraph or forensic examination. Do not sign a waiver-of-rights form, admit or deny any allegations or make any written or oral statement unless an attorney and/or NAPS representative is personally present.

These are not complete guidelines —always consult with an attorney. Additional information on OIG warnings can be found on the NAPS website at www.naps.org. Finally, be thankful for the rights you have during an OIG investigation, but also be aware how Advisement of Rights may impact you.

I want to thank our military veterans and all the men and women currently serving our great country. Happy Thanksgiving to our entire NAPS family. I am thankful to share my ice-cream-flavor-of-the-month recommendation: Lappert’s Kona Lava Java. Be safe and eat more ice cream.