Garrity and Kalkines Warnings

What’s a Government Employee to Do?

By Justin Dillon and Anthony F. Vergnetti
Government agents are required in internal investigations to give certain warnings to federal employees

Government agents are required in internal investigations to give certain warnings to federal employees

You’re a federal employee. You’ve got years of experience. You love your job, even if sometimes the bureaucracy can get to you. You’re sitting in your office, halfway through the morning’s first cup of coffee, when all of a sudden two people appear at your doorway.

“Hi,” says the one on the left. “We’re from the Office of Inspector General (OIG). Do you have a few minutes to talk?”

You tense up, your palms start sweating, and you rack your brain for what they could want. You’d been wondering if you should have had that third beer at Bob’s going-away party last month, but you don’t think you said anything you shouldn’t have. And it’s true that you didn’t report up the chain an uncomfortable encounter you overheard in the office the other day. Could that be it? You also went to dinner last month with a contractor who’s done work for your department in the past, but you are pretty sure you went Dutch. (Didn’t you?)

What did you do? What do they think you did? Should you talk? Should you ask for time to get a lawyer? Or will that just make you look guilty? You know you better figure it out because one thing is certain: If OIG thinks you lied to its agents, you could face termination or even a criminal false-statements charge.

If you’ve spent any time watching cop shows, you’d think the answer must be to keep quiet, right? But the short answer is — as with so many things in life — it depends.

Generally, government employees owe a duty to comply with internal investigations that are purely administrative. Refusing to participate in them can have negative consequences, including termination.

But employees don’t have to answer questions if doing so might incriminate them. The problem is figuring out which bucket this investigation falls into: Is it administrative, or is it criminal? And if it’s the former, does it have any chance to become the latter? Sometimes, as the facts change, so does the government’s assessment about the case. And once you’ve talked, the cat is out of the bag, for better or for worse.

So, back to our scenario where you’re approached by the OIG. Do you keep quiet, potentially risking an adverse employment action? Or do you talk, potentially risking a criminal charge if this breaks the wrong way? There are often, as you might imagine, no easy answers to these questions.

Before you decide what to do, it’s important to understand what protections — if any — you will have if you talk. Because just as a Miranda warning (“You have the right to remain silent. …”) is required before the government can question a suspect who’s in custody, government agents are required in internal investigations to give certain warnings, too. Those warnings are called Garrity warnings and Kalkines warnings. And they have very different purposes.

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