Everyone knows ‘Miranda’ but if you know ‘Garrity’ and ‘Kalkines’ you were probably in (or investigated by) Internal Affairs.
Not all investigations of people suspected of committing crimes are criminal investigations. Some are administrative (because when employees go bad, employers must have facts to decide what to do about it). Administrative investigations have their own rules and case law.
I once ran ATF’s Internal Affairs Division. It was not a job that made me popular. I got invited to fewer parties. I was a professional buzzkill.
In law enforcement, “IA” is often derided. “The Rat Squad” (an insult I learned from ‘NYPD Blue’; Sipowicz wasn’t a fan). IA is sometimes characterized as overzealously targeting cops ‘just trying to do their job.’
I see it differently.
My mentor—who put me in charge of IA—was fond of saying, “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.” (And because he was a man of uncompromising integrity, he always cited the source of the quote: Senator Alan K. Simpson.)
Internal investigations help protect an organization’s integrity.
To be fair, few internal investigations involve matters of actual corruption. Most involve simple human failings and should be kept in perspective. As my mentor also regularly said: “They are our employees, not our enemies.”
Sometimes, though, allegations are quite serious and involve crimes, not just matters of policy or misconduct. A recent case from the U.S. Merit Systems Protection Board (MSPB) illustrates this.
Sergio Luna worked for the U.S. Department of Homeland Security when he was suspected of “disreputable associations and illicit activities.” He was ordered to submit to an interview as part of an internal investigation but even after being assured nothing he said would be used against him in a criminal prosecution, he refused to cooperate. Based on that, he was fired.
The Fifth Amendment guarantees “no person…shall be compelled in any criminal case to be a witness against himself.” As everyone who has heard the ‘Miranda warning’ knows, you have the right to remain silent.
But what if you work for the government?
Statements obtained from government employees under threat of removal cannot be used in a criminal prosecution. They can remain silent, and that alone cannot be used to fire them. When an employee is advised of this during an internal investigation, it is known as a ‘Garrity’ warning. (It’s like admin-Miranda for government employees.)
However, federal employees can be compelled to answer or face removal…if they are told their statement will NOT be used in a prosecution. That is the ‘Kalkines’ warning.
Luna received such a notice but argued it was inadequate because he was not officially granted immunity by the U.S. Department of Justice. No matter, said the MSPB. The notice from the employer alone was enough to bar use of the statement in a prosecution. He stays fired.
Read the opinion here.