April 06, 2021 GOVERNMENT AND PUBLIC SECTOR LAW

Garrity and Kalkines Warnings to Government Employees

Justin Dillon and Anthony F. Vergnetti

You’re a federal employee. You’ve got years of experience. 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?” What do you do?

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.

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 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.

Garrity warnings. The most common warning is the Garrity warning, named after Garrity v. New Jersey, 385 U.S. 493 (1967). Such a warning will advise you that, although you can refuse to participate in the investigation if doing so would result in self-incrimination, such refusal may be used against you in any underlying administrative proceeding. That’s right: This means that anything you say—or don’t say—can be held against you.

Many Garrity warnings indicate that “you cannot be terminated ‘solely’ for not cooperating in the investigation.” This means that even though the government can’t fire or retaliate against you “solely” for not cooperating, such refusal may result in an administrative finding of insubordination. This allows the government to include refusals to cooperate in an employee’s job record, and if that employee has another warning or infraction, he or she may be fired for insubordination.

A Garrity warning allows the government to use your silence against you. Take an example of a sexual harassment incident in the workplace. Suppose you sit six feet from the elevator and as you wrap up for the day, you hear a group of co-workers outside making a sexual joke about your supervisor. The incident gets reported, and the OIG investigates. An agent gives you a Garrity warning and tells you that you are being investigated as a witness of the sexual harassment incident. But you refuse to participate. An administrative hearing ensues, and your silence, either alone or when taken together with your close proximity to the incident, implicates you in the joke. As a result, you are suspended without pay and forced to attend sexual harassment workplace training. Now, this hypothetical is probably extreme, but it isn’t hard to imagine scenarios in which not talking can get you into just as much trouble as talking. In effect, the Garrity warning provides almost no protection for government employees—which is why, if you can get it, you want a Kalkines warning.

Kalkines warnings. The Kalkines warning, named after Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973), grants you immunity in exchange for cooperation in the investigation. It provides immunity not only for what you say but also for any evidence derived from what you say (so-called derivative-use immunity).

To help clarify the difference between use immunity and derivative-use immunity, assume that you’re being investigated for murder. If you tell the agents, “I shot the guy, and the gun is in the backyard,” use immunity would prevent them from using your confession against you—but they can go dig up the gun and use that against you. In other words, they can’t use your confession, but they can use evidence they derive from it. Not so with derivative-use immunity. Derivative-use immunity would also prevent the government from using evidence derived from your confession against you. So, in this example, they couldn’t use your confession or the gun. That’s how powerful it is.

So, what’s the catch? Why doesn’t everyone refuse to talk until they get a Kalkines warning? Because the government hates giving them. Giving someone immunity, especially at the early stages of an investigation, can limit the government’s options down the road. To convince agents to give you a Kalkines warning, you need to convince them that you have a reasonable fear of criminal prosecution—that you’re not insisting on immunity just to be ornery. That can be hard to do, and if the government refuses and insists on giving you the nonprotection of a Garrity warning, then you are left with a hard choice. Talk, and risk prosecution. Or don’t talk, and risk getting fired.

What are your options? The first thing you should do if you find yourself in this situation is request a written statement from the interrogating official regarding the nature and purpose of the investigation. If the official won’t give you a written statement, ask for an oral one, and take good notes about what the official says.

The second thing to do is ask whether you’re considered a witness, a subject, or a target. If the agent tells you that you’re just a witness and describes a matter that you know could not possibly result in criminal charges, you might feel comfortable talking. But unless you have those two things—“witness” plus “clearly not criminal”—it is almost always a bad idea to talk right away. Instead, the best approach is usually to take the agent’s card, promise to get back to the agent promptly, and immediately call a lawyer. Why “promptly”? Because some agents can be deeply unreasonable and may threaten to take immediate, interim action—such as a temporary suspension—if you don’t get back to them quickly. We have seen this happen. It is an ugly way to do things, but some agents do ugly things.

Conclusion. Once you have counsel, your lawyer can reach out to the agent—or a prosecutor, if one has been assigned—and help you decide whether or not to talk. That discussion will, of course, include whether to accept a mere Garrity warning or insist on a Kalkines warning. And what you decide to do will ultimately turn on some combination of whether you actually might be in criminal trouble, what your risk tolerance is—and how much you like your job.

ABA Government & Public Sector Lawyers Division

This article is an abridged and edited version of one that originally appeared on page 2 of The Public Lawyer, Winter 2021 (29:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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Justin Dillon

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Justin Dillon is a partner at KaiserDillon PLLC in Washington, D.C., where he regularly represents government employees in Office of Inspector General investigations. 

Anthony F. Vergnetti

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Anthony F. Vergnetti is the president and CEO of Federal Employee Defense Services, Inc., which provides professional liability insurance to the entire federal employee community.