The Board agreed with the administrative judge that the appellant refused to cooperate in the OPR investigation. Image: Alex Staroseltsev/Shutterstock.com
Following is a summary from the MSPB of a recent decision in which it upheld the removal of a federal employee on grounds of failure to cooperate with an investigation that could lead to disciplinary action.
On appeal to the Board, the appellant argued, among other things, that the agency could not discipline him for failing to answer questions with criminal implications absent a “declination to prosecute” from the Department of Justice (DOJ), which the agency failed to provide. The administrative judge sustained the removal, finding that the appellant failed to cooperate, as charged, and that the agency was not required to obtain assurance of immunity directly from DOJ before compelling the appellant to answer questions. She further found that the removal penalty was reasonable, and that the appellant did not prove any of his affirmative defenses. The appellant petitioned for review.
Holding: The agency’s assurance of immunity was adequate under Kalkines v. United States, 200 Ct. Cl. 570 (1973), and did not require assent, written or otherwise, from DOJ. Thus, the ensuing removal action did not violate the appellant’s constitutional rights.
1. The Board agreed with the administrative judge that the appellant refused to cooperate in the OPR investigation, as alleged. However, a Federal agency’s authority to discipline an employee for failure to cooperate in an investigation is circumscribed by the Fifth Amendment, which provides in relevant part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” For the same reason the Government may not support a criminal proceeding with statements that it obtained from a public employee under threat of removal from office, see Garrity v. New Jersey, 385 U.S. 493 (1967), the Government may not remove an employee from public office for refusing to give statements that could subsequently be used against him in a criminal proceeding.
2. Nevertheless, a public employee subjects himself to dismissal if he refuses to account for his performance of his public trust, after proper proceedings which do not involve an attempt to coerce him to relinquish his constitutional rights. The Government may accomplish this by giving the employee adequate notice both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be employed against him in a criminal case. Thus, an employee may be removed for not answering questions posed by his employing agency if he is adequately informed both that he is subject to discharge for not answering and that his replies and their fruits cannot be used against him in a criminal case. Kalkines v. United States, 200 Ct. Cl. 570 (1973).
3. The Board agreed with the administrative judge that the notices of immunity the agency provided the appellant were sufficient under Kalkines and held that adequate assurance of immunity does not require assent, written or otherwise, from DOJ. First, the Board observed that it was not free to impose additional requirements beyond those set forth in Kalkines, which is binding precedent in the Federal Circuit. Second, the Board agreed with the administrative judge that, under Supreme Court precedent, the assurance of immunity the appellant received was binding on the Government even absent the explicit assent of DOJ. Consistent with that precedent, the Federal Circuit has held that when an employee is prospectively granted immunity through the Garrity exclusion rule, he may be removed for failure to cooperate with an agency investigation.
4. The Board noted that there are some situations in which a prospective grant of immunity under Garrity is not sufficient to compel testimony. Specifically, Title II of the Organized Crime Control Act of 1970, codified at 18 U.S.C. chapter 601, sets forth procedural requirements the Government must follow to compel testimony in various judicial, administrative, and congressional proceedings. Under this section, a formal grant of immunity can only be given by the Attorney General.
5. However, the Board found that the investigative interview at issue here was not a proceeding covered by 18 U.S.C. chapter 601. Specifically, 18 U.S.C. § 6001(3) defines a covered proceeding as “any proceeding before such an agency with respect to which it is authorized to issue subpoenas and to take testimony or receive other information from witnesses under oath.” There is no indication in this case that the agency had such authority, and the Board noted that it was unaware of any Federal agency that would be authorized to issue a subpoena in an employment-related investigation of one of its employees.
6. In sum, the appellant was not required to surrender his constitutional immunity; instead, he was informed of that immunity and of the administrative discipline that he would face if he chose to remain silent. This notice was sufficient under Kalkines, and nothing more was required. Because the appellant refused to answer the agency’s questions despite having received adequate notice under Kalkines, the ensuing removal action did not violate his constitutional rights.
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