Thursday, March 20, 2014

Do You Have the Right to Remain Silent?

Your Rights in Administrative Investigations

Disclaimer

✤ The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends statutes or passes new statutes, Federal agencies issue new regulations and courts issue new interpretations of the law. The Jeffrey Law Group, PLLC, does not guarantee the accuracy of the legal information in this document. The Jeffrey Law Group, PLLC, recommends you consult a licensed attorney of the firm who is knowledgeable about the area of law in question before you take action to address a legal matter.

Administrative Investigations

✤ Right to Remain Silent;

✤ Obligation to Answer; and

✤ Right to Union Representation.*

Right to Remain Silent

✤ Fifth Amendment privilege against compulsory self-incrimination may be asserted in an administrative investigation to protect against any disclosure that an individual reasonably believes could be used in his own criminal prosecution or could lead to other evidence that may be so used. Kastigar v. United States, 406 U.S. 441, 444-45 (1972).

Consequences of Silence

✤ A Federal civilian employee cannot be discharged simply because he invokes his Fifth Amendment privilege against self-incrimination in refusing to respond. Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968)

Coercion

✤ The threat of removal from one’s position constitutes coercion which renders any statements elicited thereby inadmissible in criminal proceeding against the party so coerced. Garrity v. New Jersey, 385 U.S. 493, 500 (1967).

Obligation to Answer

✤ The Federal Government is not wholly barred from insisting that a Federal civilian employee answer its questions. Specifically, the Federal Government can remove a civilian employee for not replying if he is adequately informed that he is subject to discharge for not answering and “assured of protection against use of his answers or their fruits in any criminal prosecution.” Kalkines v. United States, 473 F.2d 1391, 1394 (Ct. Cl. 1973).

Effective Grant of Immunity

✤ Must be an express grant of immunity - U.S. Attorney’s declination of criminal prosecution not enough;

✤ Must be written; and

✤ Must clearly define the scope of that immunity.

✤ Modrowski v. Dep’t of Veterans Affairs, 252 F.3d 1344, 1350-52 (Fed. Cir. 2001).

Weingarten Rights

✤ 5 USC 7114 (a)(2)(B) provides that an exclusive representative shall be given the opportunity to be represented at any examination of an employee by a representative of the agency in connection with an investigation if the employee reasonably believes the examination may result in disciplinary action and the employee requests representation.

✤ Commonly known as the Weingarten right because the language of the statute reflects a ruling of the Supreme Court in a private sector case, NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

Lack of Recognized Union Privilege

✤ The National Labor Relations Board (NLRB) and the Federal Labor Relations Authority (FLRA) have discussed the possible evidentiary privilege for communications between union representatives and bargaining unit members, the federal courts and the U.S. Merit Systems Protection Board (MSPB) have declined to establish a privilege for such communications.  See Cook Paint and Varnish Co., 258 NLRB 1230 (1981) (finding that an employer committed an unfair labor practice by questioning a union steward and threatening to discipline the steward if he did not turn over his grievance arbitration notes); Dep’t of the Treasury Customs Service and National Treasury Employees Union, 38 FLRA 1300, 1308 (1990) (finding that communications between a union representative and bargaining unit employee are privileged against disclosure to management for purposes of disciplining the employee);  see e.g., In re: Grand Jury, 995 F.Supp. 332, 336 (E.D.N.Y 1998); Walker v. Huie, 142 F.R.D. 497, 501 (D. Utah 1992); and Berkner v. Dep’t of Commerce, 2011 MSPB 27, ¶¶ 2-3 (2011)(declining to recognize that communications between union representatives and bargaining unit members were protected under Board law).

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✤ The Jeffrey Law Group, PLLC The Federal Employee's Law Firm ®1906 Sunderland Place, NWWashington, DC 20036 202-312-7100 www.jeffreylawgroup.com