Internal Investigations of Government Employees: Garrity and Kalkines Warnings

If you work for a federal or a state agency, you may have heard of the terms “Garrity warning” and “Kalkines warning” thrown around at the workplace.  These warnings are issued when the agency is conducting an internal investigation, and there is a possibility of criminal charges being filed. If you are a federal or state government employee, it may be worth your time to fully understand what these warnings mean.

Many people have heard of “Miranda warnings,” and may know that it is a warning issued by police officers to arrested individuals to inform them of their rights.  The Miranda warning tells the arrestee that he or she has the right to remain silent, the right to consult an attorney, and the fact that his or her statements can be used against him or her in Court. “Garrity warnings” and “Kalkines warnings” evolve out of Miranda warnings.  Like Miranda warnings, they are designed to safeguard a person’s Fifth Amendment rights.  Unlike Miranda warnings, they are only applicable to and used in the context of internal investigations against government employees.  This limited application arises from the fact that under our legal system, the Constitution imposes more restrictions on government actors (including the government as an employer) than on private actors.  With that said, we will go over what Garrity and Kalkines warnings are below.

The “Garrity” warning is named after the Supreme Court case Garrity v. New Jersey.  385 U.S. 493 (1967). In Garrity, several police officers suspected of participating in a traffic ticket fixing scheme were questioned by investigators from the state attorney general’s office.  Prior to questioning, the officers were given warnings that if they refused to answer, they would be fired.  The officers agreed to answer the questions, and their answers were later used to convict them at trial.  The Supreme Court held that the officers’ answers were “compelled” in violation of the Fifth Amendment.  Although the Garrity opinion did not mandate any particular warning in the way that Miranda did, after Garrity, federal and state agencies began to incorporate a Garrity warning when they question their employees during an investigation.  Although the wording of the Garrity warning will change from place to place, principally it serves to inform the employee that that any statements made will be used against him or her in Court, that he or she is free to refuse to answer questions, and most importantly, that a refusal to answer questions will NOT result in any adverse action against the employee—such as termination.

A “Kalkines” warning, named after a Court of Federal Claims case called Kalkines v. United States, is the converse of a Garrity warning.  An employee receiving a Kalkines warning is told that his or her statements will not be used against him or her in Court (in other words, is granted immunity), but that a failure to answer questions will result in the employee’s termination.  Thus, where a Garrity warning promises the employee that he or she will not be forced to answer questions, the Kalkines warning promises the employee that he or she will not be criminally prosecuted for his or her answers.  A Kalkines warning is typically issued only after the investigating agency has consulted with the prosecutor in charge of the investigation.

Regardless of which type of warning you receive, being the recipient of a Garrity or Kalkines warning is never a good sign.  In federal internal investigations, however, you will generally have the right to consult an attorney before speaking with the investigator.  Where you are offered this option, you should always refrain from making any statements until you have had time to review your case with an experienced attorney.

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