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Failure to Cooperate After Receiving Kalkines Rights Can Lead to Removal

Failure to Cooperate After Receiving Kalkines Rights Can Lead to Removal
By Glenn Smith

“No person … shall be compelled in any criminal Case to be a witness against himself.”—Fifth Amendment of the U.S. Constitution

“Employees must cooperate in any postal investigation, including Office of Inspector General investigations.”—ELM 665.3

Under the Fifth Amendment of the U.S. Constitution, a person has the right to remain silent and not answer questions when those responses might be incriminating. In the context of employment by the federal government, the Merit Systems Protection Board (MSPB) held in the case Ashford v. Department of Justice this right against self-incrimination attaches when there is a reasonable belief that the elicited statements will be used in criminal proceedings.

Thus, a federal employee has the constitutional right to refuse to answer questions or admit to criminal misconduct when asked by their employer. However, a grant of immunity can be used by the government to overcome this right and compel answers to questions posed, even if they compel admission of the commitment of a crime. In the postal world, this is accomplished by the Office of Inspector General and U.S. Postal Service issuing employees Kalkines “use immunity,” which commonly is referred to as Kalkines rights.

In Garrity v. New Jersey, the Supreme Court held that a government may not support criminal proceedings with statements it obtained from a public employee under threat of removal from office. As a result, the government came up with a way to obtain this information through “use immunity,” which was upheld in Kalkines v. United States.

Specifically, an agency can give an employee adequate notice that they are subject to discharge for not answering questions and that their replies (and their fruits) cannot be employed against them in a criminal case. If the employee fails to answer the questions based on the assertion they do not wish to incriminate themselves, they can be removed from employment if the employee has been granted use immunity.

The question remained, however, whether an agency such as the Postal Service had the authority to grant immunity from prosecution when that prosecutorial authority rests solely with the U.S. Department of Justice. In other words, can an agency grant use immunity without approval of the Department of Justice?

On Jan. 24, 2024, the MSPB held in the case Luna v. Department of Homeland Security that an agency can grant an employee immunity from self-incrimination without Department of Justice approval. In that case, Agent Luna, an immigrant enforcement agent, was being investigated for disreputable associations and illicit activities.

Luna was ordered to appear before the Office of Professional Responsibility for an interview where he was required to cooperate fully and answer all relevant questions. He was warned that if he failed to cooperate, he could face disciplinary action up to and including removal.

DHS further informed Luna that the answers he gave to the questions posed or any information gathered by reason of those answers could not be used against him in a criminal prosecution except if Luna gave a false answer. Luna argued that the notice of “use immunity” was inadequate and that, absent documentation from the Department of Justice, his Fifth Amendment right to remain silent still applied. The MSPB resolved this issue in favor of the government and upheld Luna’s removal for failing to cooperate in the investigation.

So, even absent specific assurance of immunity from the Department of Justice, if you are given Kalkines “use immunity” by the Postal Service, you can be removed if you fail to cooperate. There is one noted exception. When an employee’s criminal conduct constitutes racketeering, an agency will not have the authority to grant use immunity as Title II of the Organized Crime and Control Act of 1970 provides for specific procedures that must be followed before immunity can be granted.

You should note that the receipt of Kalkines rights does not mean you will not be prosecuted. If the government has or can obtain evidence sufficient to prove criminal conduct prior to your interview or even afterward without the use of your statements, it can prosecute you.

For example, if there is video of you stealing funds or the mail, the video could be the basis of a prosecution as it does not flow from your interview. In the case U.S. v. Slough, Blackwater contractors were involved in a deadly shooting in Iraq. The State Department gave the contractors use immunity and collected statements.

Subsequently, grand jury indictments for manslaughter were obtained against the contractors. The appeal court upheld the validity of the indictments because the evidence presented to the grand jury to obtain the indictment was collected independently of the contractors’ statements.

If you are brought into a situation in which you are given Kalkines rights by the OIG special agents or U.S. postal inspectors, you no longer can assert Fifth Amendment rights and remain silent without jeopardizing your job. You still have the right to remain silent, but you likely will be removed for failure to cooperate in an investigation (ELM 665.3).

Remember, if you ever find yourself called in to answer questions by OIG agents or postal inspectors, you always want to ask if you are free to go. If not, it is a custodial interview; you essentially are under arrest and have to be read your Miranda rights.

They may indicate you are free to go, but walking out can lead to adverse action under ELM 665.3. Moreover, if they give you Kalkines rights to keep your postal employment, you will have to answer their questions even though they may elicit information regarding your criminal activity.