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No. 2
Avoiding the Pitfalls of Investigating Federal Civilian Employees Pursuant to Army Regulation 15-6
By Eric R. Hammerschmidt
Obtaining testimony from federal civilian employees during an administrative investigation pursuant to Army Regulation (AR) 15-61 can be difficult. If approached improperly or without careful analysis, it can adversely affect both the investigation and any follow-on corrective action. This article examines some of the legal protections afforded to Department of the Army (DA) Civilian employees being interviewed as part of an AR 15-6 investigation, specifically when employee misconduct or criminal activity is suspected. This article is not focused on the AR 15-6 Board of Officers procedures, where a designated respondent has very specific procedural representational rights (including the right to an attorney),2 but rather on investigating officers’ (IO) administrative investigations into allegations of administrative misconduct against a Civilian.3
This article is a basic primer for judge advocates (JAs) and IOs interviewing4 DA Civilians (both as witnesses and as subjects of AR 15-6 investigations). This article first summarizes the applicable portions of AR 15-6 dealing with Civilians. Next, outlining the relevant statutes and case law concerning the investigatory examinations of civilian employees facilitates a discussion of how to analyze and apply that law. The article concludes with a section on “best practices” when dealing with unions and civilian employees. Although this article focuses on investigations of DA Civilians through the lens of AR 15-6, many of the rules and suggested techniques apply to investigations in all the DoD Services and across the Federal Government. Finally, while much of this article may be “common sense” to experienced labor and employment law practitioners, it provides basic knowledge and understanding for military officers who may have limited experience investigating alleged Civilian misconduct.
Civilian Protections Enumerated in AR 15-6
Army Regulation 15–6 is the DA’s primary non-law enforcement investigative tool. It establishes procedures for preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Even when not specifically made applicable, this regulation “may be used as a general guide for investigations or boards authorized by another regulation or directive . . . .”5 It may surprise Army practitioners that AR 15-6 is specifically applicable to DA Civilian employees.6
However, as with many Army regulations, it is written primarily for
Service members—rather than expounding upon (or even outlining) the
unique protections and processes involving DA Civilian employees. Judge
advocates and Service member IOs may have experience investigating other
military members’ misconduct under the AR 15-6 procedures; however,
investigating civilian witnesses and subjects/suspects7
involves issues not specifically enumerated or fully explained in AR
15-6.
Although much of AR 15-6 focuses on the rights of Service members, the
regulation does contain some minimal explanations of the rights afforded
to Civilian employees. For example, according to AR 15-6:
When a civilian employee is a member of a bargaining unit, the exclusive
representative of the bargaining unit shall be given the opportunity to
be present when an employee in the bargaining unit reasonably believes
that the examination may result in disciplinary actions against the
employee and the employee requests representation.8
These are commonly known as
Weingarten rights, named after the seminal private sector case.9 However, the regulation does not explain who can represent the employee, how that representation should proceed, when the questioning can continue with or without the presence of that representative, and other options available to the IO.
Fifth Amendment rights against self-incrimination10 for Civilian employees are minimally mentioned in AR 15-6.11 However, it does not discuss Kalkines rights,12 Garrity rights,13 the affirmative procedures for notifying civilian employees of these rights, or the potential criminal immunities that may be inadvertently granted to a civilian suspect by an unwitting IO or JA legal advisor.14 This is important for a JA and IO to understand to avoid unintentionally preventing the Department of Justice from later being able to prosecute criminal misconduct. Although the regulation contains a paragraph on the use of DA Form 3881, Rights Warning Procedure/Waiver Certificate,15 this form is more properly used when there is a specific investigation into a Service member’s criminal conduct (which violates the Uniform Code of Military Justice), rather than criminal misconduct that is tangential to an AR 15-6 investigation of a Civilian employee for workplace misconduct.16 Notably, DA Form 3881 was last updated in 1989,17 and the rights it covers are more geared to a criminal investigation rather than an administrative investigation. Therefore, a Garrity or Kalkines warning statement18 would be more appropriate than using DA Form 3881 for the majority of AR 15-6 investigations into Civilian employee misconduct.
When compared to the explanation of Service members’ constitutional and statutory rights,19 the practical and procedural explanation of civilian rights is clearly lacking. Without this knowledge, a new JA assigned to serve as a 15-6 legal advisor is ill-prepared to properly advise the IO on handling civilian interviews. What follows is a detailed explanation of two major, common issues in dealing with DA Civilians in an AR 15-6 (or general civilian personnel) investigation: Weingarten rights and Garrity/Kalkines
rights.
Weingarten Rights for Bargaining Unit Employees20
Statutory Protections
Weingarten rights are the rights of bargaining unit employees to have union representation available at certain investigatory interviews as long as all the conditions discussed below are met.21 The term “Weingarten rights” is somewhat misleading for federal civilian employees because the underlying 1975 case analyzes protections for employees in the private sector, not in the federal public sector.22 In National Labor Relations Board v. J. Weingarten, Inc., the Court found a violation of Section 7 of the National Labor Relations Act23 when an employee requested and was refused union representation in an investigatory interview that the employee reasonably believed might result in disciplinary action.24
Although the employee was not disciplined as a result of the meeting, the Court held that “a ‘well-established current of arbitral authority’ sustains the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him.”25 Congress considered this case when drafting the new Federal Service Labor-Management Relations Statute26 just a few years later in 1978.27 The applicable part of the statute mandates:
(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—
(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if—
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.
(3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection.28
Subsection (a)(2)(A) deals with formal discussions.29
Subsections (a)(2)(B) and (a)(3), discussed below, contain the
codification of Weingarten rights for the federal public sector.
Case Law Analysis
The Vesting of Weingarten Rights
Case law further articulates the Weingarten rights and obligations of the management representative, the exclusive representative, and the bargaining unit employee. A JA should be generally familiar with four conditions to determine whether a federal employee is entitled to union representation under Weingarten:
- the meeting between the employee and management must be an examination;
- the examination must be in connection with an investigation;
- the employee must reasonably believe that disciplinary action may result from the meeting; and,
- the employee must request representation.30
The four parts of this test are applied to AR 15-6 investigations as
follows.
Meetings Between an Employee and Management Official
First, an IO conducting an oral or written interview of a bargaining
unit employee would be considered a management official and
representative of the agency for purposes of this test. This is
per se true if the IO is in a supervisory position, but there are situations in which even bargaining unit members can be considered representatives of the agency.31 If a legal advisor is drafting an appointment memorandum for the appointing authority in a case involving suspected DA Civilian misconduct, the best practice is to ensure a supervisory management official is designated as the IO or an assistant IO.32
Examinations in Connection with an Investigation
Second, an IO appointed pursuant to AR 15-6 is conducting an examination in connection with an investigation when they interview a bargaining unit employee.33 For AR 15-6 and the COVID-19 pandemic, it is important that Weingarten rights attach to an investigative examination that occurs outside of an employee’s duty time,34 over the telephone,35 or with written questions and answers.36
In fact, using written questions and answers in an AR 15-6 investigation
is common, and it can ensure that the information the witness or suspect
gives is accurately recorded.
Reasonable Belief of Discipline
Third, and most important for a legal advisor to an IO, it must be
determined that the employee subject to the investigative examination
has a reasonable belief that disciplinary action might result from the
meeting. This is the only factor that can feasibly be used to deny union
representation to a Bargaining Unit Employee (BUE) in an interview
conducted pursuant to AR 15-6. As stated in AR 15-6, “the IO or board
president will consult the servicing civilian personnel office and SJA
or legal advisor before denying such a request” for union
representation.37 Therefore, it is important that the legal advisor understands Weingarten so they can properly advise the IO. The term “reasonably believes” in the statute is an objective test.38 The employee (not the investigator) must have an objective belief that discipline could result from the investigatory examination.
It is also irrelevant whether discipline actually results from the AR 15-6 investigation or if it is even contemplated at the time of the interview.39 When AR 15-6 investigations are used to investigate DA Civilian misconduct, the employer may not have any indication as to whether adverse action will be warranted. The IO certainly has no control over future adverse actions against Civilian employees. However, the outcome of the AR 15-6 investigation does not negate an employee’s reasonable belief of discipline.40 In fact, it has even been held that some promises of administrative immunity do not negate an employee’s reasonable fear of discipline.41
The legal advisor should always determine whether the employee
“reasonably believes” that discipline will arise from the investigatory
interview, not whether the employer intends to actually pursue
disciplinary action against the employee. Ultimately, a legal advisor
and IO should err on the side of caution rather than denying a request
for union representation.
Request for Union Representation
Fourth, the employee must affirmatively request union representation for
the investigatory examination to be statutorily entitled to union
representation,42 unless something contrary is stated in the BUE’s collective bargaining agreement (CBA).43 It is not a high bar to request union representation, as the request does not explicitly have to mention the union or Weingarten. For example, in an unfair labor practice case before the Federal Labor Relations Authority (FLRA), a BUE “requested an attorney, and then said, ‘I want somebody to talk to.’”44 The authority held that the agency violated 5 U.S.C. § 7116(a)(8) (committed an unfair labor practice) by failing to comply with 5 U.S.C. § 7114(a)(2)(B). “The Authority, like the [National Labor Review Board], looks to see whether, in all the circumstances, the request for representation was sufficient to put the respondent on notice of the employee’s desire for representation.”45
Generally requesting representation or an attorney was sufficient to
meet the fourth element of the
Weingarten statutory test because it put the employer on notice to at least clarify if the employee wanted union representation.46
If an employee makes a valid request for representation [i.e., he or she meets all four elements to vest the statutory right to union representation], . . . an agency has three options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview without representation or having no interview.47
If an investigator offers the employee the choice to continue the
interview without representation or have no interview, there can be no
coercion.48 The legal advisor to an IO should counsel the IO before this choice is offered to a bargaining unit employee to ensure that the IO is not inadvertently dissuading an employee from union representation. Any waiver of union representation by an employee must be clear, unequivocal, and un-coerced.
Participatory Rights, Interference, and Exclusion of Union Representatives
The FLRA and courts have carved out certain participatory rights for union representatives at investigatory examinations—far more than union representatives receive at formal discussions. Union representatives can take an active, but not belligerent or obstructive, role in the investigatory examination. The best summary of the participatory rights of the union, the employer, and the employee is contained in the FLRA’s decision in National Treasury Employees Union, Chapter 208.
The Authority has held that “the purposes underlying [§] 7114(a)(2)(B)
can be achieved only by allowing a union representative to take an
active role in assisting a unit employee in presenting facts in his or
her defense . . . . A union representative’s right
to take an ‘active role’ includes not only the right to assist the
employee in presenting facts but also the right to consult with the
employee[.]” In this connection, the Authority has held that “for the
right to representation to be meaningful, the representative must have
freedom to assist, and consult with, the affected employee.”49
However, the union’s representative cannot overly interfere with the
investigation. The employer has a “legitimate interest and prerogative
in achieving the objective of the examination,” and the union is not
permitted to compromise the employer’s interests in that
examination.50 “In Weingarten, the Court . . . stated that an employer ‘is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.’”51
Because discussions with union representatives can take on an
adversarial tone, “[t]his wording from
Weingarten has been interpreted as being ‘directed toward avoiding a bargaining session or a purely adversary confrontation with the union representative and to assure the employer the opportunity to hear the employee’s own account of the incident under investigation.’”52 Accordingly,
where a union representative disrupts an interview by engaging in interruptions that are “verbally abusive” and “arrogantly insulting,” an employer does not violate Weingarten rights by limiting the representative’s participation . . . . In addition, an employer does not violate Weingarten rights when it limits the union representative’s participation after the representative has counseled an employee to answer a question only once and has prevented the employer from questioning the employee by engaging in persistent objections and interruptions.53
However, JAs should be aware that some “interference” is allowed by the union representative.54 The union representative is allowed to make official statements on the record that must be considered by the investigator.55
The union representative is allowed to meet and confer with the employee
prior to the interview.56 A union representative is permitted to advise and counsel the employee in front of the investigator, as long as they do not prevent the employee from answering the investigator’s questions.57
This might be done through clarifying or rephrasing the questions, or
helping the employee to emphasize beneficial facts or answers. There is
no bright-line rule or entitlement allowing the employee and union
representative to meet in private after the interview has started.58
Unless there are compelling reasons to prevent such a private meeting
(such as a concern that the union representative will encourage false
answers by the employee), a seasoned labor counselor would likely
recommend that the IO and legal counsel allow short private conferences
to avoid unduly burdensome
Weingarten litigation over the issue.
It is unlikely that an IO or legal advisor will be able to exclude all union representation from an AR 15-6 investigative interview if the employee’s situation meets the four-part Weingarten test. However, there are ways to exclude specific union representatives from AR 15-6 investigative interviews. First, if the employee’s requested union representative is unavailable to attend the interview, it is not a per se unfair labor practice to continue with the interview with a different authorized union representative. Nevertheless, if possible, it would be advisable for the JA to recommend the IO delay the interview for a short amount of time59 so that the specific union representative can attend the interview if the employee refuses to designate a different representative.60
Second, the employer can establish that “special circumstances” exist
that would create a conflict of interest if the employee’s designated
union representative attended an investigatory interview.61
There are no bright-line rules for meeting the “special circumstances”
test; however, if the designated union representative is also a subject
of the investigation, this would likely rise to the level of “special
circumstances,” possibly allowing the union representative to be
excluded from the interview. Excluding a union representative will
always be a very fact-specific inquiry, and the legal advisor must be
prepared to make a risk determination before instructing the IO on how
to proceed. If a union representative is excluded from the investigatory
interview, the agency must give a reasonable amount of time for the
employee or union to designate an alternate representative.
Best Practices
With the Weingarten rules and case law in mind, the following are several practice tips for preparing and conducting an investigatory interview of a DA Civilian pursuant to AR 15-6. Practitioners should be able to identify whether an employee is in a bargaining unit, familiar with the applicable collective bargaining agreement, and prepared to respond to requests for representation and obstructive union behavior. The following responsibilities should be divided between the IO and the legal advisor based on their working relationship.
First, when preparing to interview a DA Civilian, check to see if they are a member of a bargaining unit62 and covered by a CBA.63 If the civilian is not in a designated bargaining unit, then Weingarten rights are inapplicable. The easiest way to check is to look at an employee’s most recent Notification of Personnel Action (Standard Form 50),64 which should be readily available from the DA Civilian’s servicing Civilian Personnel Advisory Center (CPAC) under the Civilian Human Resources Agency (CHRA). On this form, the IO or legal advisor should look at block 37, Bargaining Unit Status. If “8888” is listed, then the employee is not eligible65 to be in a bargaining unit.66 If “7777” is listed, that means the position is eligible to be in a bargaining unit, but no petition for representation has been filed with the appropriate FLRA regional office.67 If any other numbers are listed, that means that the employee is in a bargaining unit and is eligible for Weingarten rights.68 Also, the legal advisor or IO must determine the bargaining unit status at the time of the AR 15-6 interview, not at the time of the events leading up to the interview.69
Second, the legal advisor or IO must determine if there are any additional rules in a CBA that might be applicable to the employee being interviewed. In addition to the annual notice required by the statute, a common rule would require the employer to give affirmative notice of Weingarten rights prior to each investigative examination.70 This is a negotiable topic,71 but agencies should avoid agreeing to this when negotiating a new CBA.
Third, give advance notice of the interview to the subject of the AR 15-6 investigation. That way, if they want a union representative, they can have one lined up. This will save time down the road and will allow the legal advisor to make plans to attend the interview. Also, the union representative can submit a request for information (RFI)72 prior to the interview so that they have the appropriate background information to better represent the BUE. It also means that the IO and other management officials can spend less time during the investigatory examination fetching documents and answering simple background questions, among other tasks. Depending on the timelines in the CBA and the AR 15-6 appointment memo, the examination of a DA Civilian may have to be slightly delayed to respond to the RFI.
Fourth, prior to the interview, the legal advisor and the IO should determine whether to 1) grant a request for union representation, 2) forgo (or discontinue) the interview, or 3) offer the employee the choice between continuing the interview without representation or having no interview at all. Often, there will be no harm in having a union representative present at the interview. Although they will try to present the facts in the light most favorable to the suspected employee, they cannot obstruct the investigatory examination or compel the employee to lie or to refuse to answer questions (subject to the Garrity and Kalkines issues discussed below). However, if a legal advisor and IO have had particular difficulties with a union representative in the past, there may be a good reason to proceed with option two or three, above. Often, there will be enough information from other witnesses or physical evidence to complete the AR 15-6 investigation, and an interview with the subject of the investigation may be unnecessary to fully answer all the questions and issues in the appointment memorandum. If adverse action is eventually proposed against the DA Civilian, they will have due process response rights and can give “their side of the story” at that time.73
Fifth, the investigatory examination with the DA Civilian should be set at a time the legal advisor or another labor management official can attend. The legal advisor should not unduly participate in the interview process,74 but should be available to ensure that the employee is properly afforded their rights and to ensure that the union official does not overstep their rights and authority by interfering with the investigation.
Sixth, great care should be taken before excluding any specific union representative from the investigatory examination if the employee has requested that representative or if the union has designated that representative. If necessary, use the “special circumstances” exception discussed above in “Case Law Analysis.”
Seventh, the legal advisor should be prepared for a union representative to engage in “robust” representation of the BUE.75 Union representatives have much leeway when engaging in their duties as the exclusive representative of the bargaining unit.76 A union official or employee engaging in protected activity cannot be disciplined for their actions as long as it does not rise to the level of flagrant misconduct.77 However, an appropriate response to inappropriate behavior might be to end the interview and forgo the chance for the subject to provide any input into the AR 15-6 investigation.
Appendix A and Appendix B78 contain sample annual notices of Weingarten rights that can be used to meet an agency’s statutory obligation under 5 U.S.C. § 7114(a)(3). In situations of an investigation involving a civilian witness or subject, legal advisors should familiarize themselves with these rights and be prepared to advise the IO.
Garrity and Kalkines Fifth Amendment Protections79
Having discussed the protections specifically applicable to bargaining unit members, this article now turns to protections available to all federal civilian employees. Criminal and administrative investigations can often intersect.80 This is especially true for public employees (local, state, and federal) where there is both an employer-employee relationship, as well as the employer being a governing sovereign body. However, more often with civilians, there is an administrative investigation into conduct that could be construed as a criminal act, but for which a criminal proceeding is not reasonably foreseeable.81 In other words, these administrative investigations might have criminal overtones although no criminal action is being investigated, and no criminal proceedings are pending or reasonably foreseeable. Witnesses who are not the subjects of AR 15-6 investigations may also be reluctant to provide a truthful statement for fear that they may incriminate themselves—for example, giving a sworn statement about drug use by themselves and others in an investigation with a drug dealer as the suspect.
It is important to note that the terms “Garrity
rights” and “Kalkines rights” are often used interchangeably in practice, but the information below illustrates how they are distinguishable.
Case Law
In general, federal “[e]mployees have a duty to speak with agency investigators unless criminal proceedings are reasonably feared.”82 The duty to cooperate is significantly curtailed due to an employee’s Fifth Amendment right against self-incrimination—i.e., the right to remain silent. This issue was first examined in a case dealing with New Jersey state employees: Garrity v. New Jersey.83 In Garrity, the appellants were police officers under investigation for the alleged fixing of traffic tickets.84
Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office. Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted and their convictions were sustained over their protests that their statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department.85
In overturning the convictions, the Court held that “the protection of the individual . . . against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.”86
In 1973, the U.S. Court of Claims issued the Kalkines decision, which made Garrity specifically applicable to federal employees; considered several intervening cases;87 and explained the circumstances in which an employee can be compelled to answer questions that may incriminate the employee.88 In Kalkines, the plaintiff was removed from his position at the Bureau of Customs of the U.S. Department of the Treasury for failing to answer questions at four different interviews related to accepting a bribe.89 A criminal investigation was occurring at the same time as the first three interviews, although (unbeknownst to the plaintiff) the U.S. Attorney had decided not to proceed with prosecution by the time of the fourth interview.90 The court held that an employee “can be removed for not replying if he is adequately informed 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.”91 Because the plaintiff was not given this information, the court overturned plaintiff’s discharge from the federal service and granted back pay.92
Distinction
It is important for AR 15-6 legal advisors to understand the primary differences between Garrity and Kalkines warnings, especially since the terms are mistakenly used interchangeably.
Garritywarnings are given when an employee is requested to give information on a voluntary basis in connection with [their] own administrative misconduct, and the answers might also be used in a future criminal proceeding. The employee is informed of [their] right to remain silent if the answers may tend to incriminate [them]; that anything said may be used against [them] in a criminal or administrative proceeding; and [they] cannot be disciplined for remaining silent.93
A Garrity warning is used to ensure that statements made by a suspect in an AR 15-6 investigation are not accidentally immunized. Immunity under Garrity “will be found if an employee has an objectively reasonable belief that he or she will be disciplined if he or she refuses to answer questions.”94
The Garrity warning ensures that immunity is not inadvertently granted as a matter of law, and it quashes any objectively reasonable belief that an employee would be disciplined for refusing to answer questions that might incriminate them under the Fifth Amendment.
On the other hand, the Kalkines warning is used when the investigator plans to offer criminal use immunity to the employee under investigation.95
[A] Kalkines warning informs the employee that: [They are] going to be asked a number of specific questions concerning the performance of [their] official duties. [They have] a duty to reply to these questions, and agency disciplinary action, including dismissal, may be undertaken if [they] refuse[] to answer, or fail[] to reply fully and truthfully. The answers [they] furnishe[d] and any information or evidence resulting from those answers may be used in the course of civil or administrative proceedings. Neither [their] answers nor any information or evidence gained by reason of such statements can be used against [them] in any criminal proceedings, except that if [they] knowingly and willfully provide[] false statements or information in [their] answers, [they] may be criminally prosecuted for that action.96
Therefore, the primary distinction is whether the investigator is
prepared to allow the employee to refuse to answer incriminating
questions or is prepared to grant immunity.
Best Practices
With the Kalkines and Garrity rules and case law in mind, the following are several practice tips for preparing and conducting investigatory interviews of a DA Civilian suspect pursuant to AR 15-6 when the individual is suspected of criminal misconduct.
First, it is important to remember that Kalkines and Garrity rights should not be used in custodial interviews by Criminal Investigation Division, Military Police, the Federal Bureau of Investigation, or other law enforcement investigations. They are used in administrative interviews such as an AR 15-6 investigation or an administrative Inspector General (IG) investigation. If a DA Civilian is suspected of criminal misconduct, and is in a custodial interview, a Miranda97 warning would be more appropriate.98
Second, unlike Weingarten rights, the onus is on the government (the IO or the legal advisor) to determine whether a Kalkines or Garrity rights form is necessary prior to or even during the AR 15-6 interview of a civilian suspect. Although an AR 15-6 suspect must specifically and affirmatively invoke any protections afforded by the Fifth Amendment, the IO and legal advisor must determine whether to give a Kalkines or Garrity notification to the suspect. Any notification of Kalkines or Garrity rights should be planned well in advance of the AR 15-6 interview, and a Garrity warning form should be used if the IO or legal advisor believes there is any likelihood of criminality regarding the subject of the AR 15-6 investigation and interview. This is the best way to avoid the accidental granting of immunity to the suspect of an AR 15-6 investigation.99
However, it is possible that criminal implications could become apparent
during the investigatory interview, and the IO and legal advisor will
need to adapt. The risk-averse approach is to provide
Garrity warnings to all subjects of AR 15-6 investigations when there are even minor criminal overtones.
Third, if the IO or legal advisor desires to grant prosecutorial “use immunity”100 to the suspect of an AR 15-6 investigation, they cannot do this in a vacuum. Instead, these individuals must discuss immunity with the Department of Justice.101 The relevant statutes102 note that Attorney General approval is required before granting testimonial immunity.103 After Attorney General approval, the agency may grant the testimonial immunity “only if in its judgment—(1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of [their] privilege against self-incrimination.”104 The Army procedures for implementing this statute are contained in AR 27-10, Military Justice.105 It is unlikely that an IO will be familiar with the detailed process of requesting testimonial immunity, so the legal advisor must be intimately involved with any interviews that may require the grant of testimonial immunity. A JA legal advisor should be aware that the process for granting immunity to individuals subject to the Uniform Code of Military Justice, is different from granting immunity to DA Civilians (or anyone not subject to it).106
Fourth, the IO and legal advisor must remember that concurrent criminal investigations may hinder the ability to interview civilian suspects, even if a Kalkines or Garrity warning is given.107 Criminal investigations should (but do not have to) take priority over an AR 15-6 investigation in most situations.108
If a civilian is suspected of criminal misconduct, but an AR 15-6
investigation cannot yet be conducted into the matter due to a criminal
investigation, the use of paid investigative leave109
or an indefinite suspension without pay110
may be appropriate. This will allow time for the completion of any
criminal investigation, and may even allow the IO to adopt some of the
evidence and findings of the criminal investigation. Also, if a criminal
investigation has concluded and there are no recommendations to
prosecute, it may be easier to acquire authorization to issue a
Kalkines warning.
Fifth, similar to the discussion in the Weingarten rights section above,111 most AR 15-6 investigations can be thoroughly completed without the cooperation of the suspect. The grant of immunity under Kalkines should be extremely rare. Instead, it is much more likely that practitioners will use the Garrity warning form when the suspect of an AR 15-6 investigation is also suspected of criminal wrongdoing. When Garrity warning forms are used, the IO and legal advisor should expect the suspect to refuse to answer any questions.
Last, although JAs are keenly aware that Fifth Amendment protections cannot be raised on behalf of others or used to refuse to incriminate a friend or colleague,112 the IO may be unfamiliar with the rules of Fifth Amendment protections. The legal advisor must educate the IO regarding the bounds of Fifth Amendment protections. In general, witnesses who are not suspects of an AR 15-6 investigation do not need Kalkines or Garrity rights, and these witnesses cannot refuse to answer questions that may implicate their coworkers. Thus, IOs must be able to identify these basic Fifth Amendment issues and immediately raise any refusal to answer questions to the legal advisor.
Sample Garrity and Kalkines warnings are contained in appendices A and B. These forms can either be adopted or adapted to meet an organization’s needs, although consulting the labor counselor is always advisable.
Conclusion
Army Regulation 15-6 glosses over some of the imperative issues that arise when investigating and interviewing DA Civilian employees. Statutory rights, such as Weingarten rights, exist to ensure that a member of the bargaining unit is properly represented in an investigatory interview. Constitutional rights created through case law, such as Garrity and Kalkines warnings, exist to ensure that DA Civilian employees can effectively protect their Fifth Amendment interests against self-incrimination. They also exist to ensure that administrative investigations, such as AR 15–6 investigations, can be conducted without the exclusion of evidence or the inadvertent granting of “use immunity.” These rights are not something to fear or avoid. However, an IO and legal advisor must ensure that these statutory and constitutional rights are properly administered and afforded to all applicable interviewees. Properly considering Weingarten, Garrity, and Kalkines will ensure a smooth and efficient AR 15-6 investigation when dealing with DA Civilians. The best practices contained within this primer will help IOs and legal advisors avoid the pitfalls of investigating federal civilian employees pursuant to AR 15-6. TAL
Mr. Hammerschmidt is a general attorney for Army Materiel Command at Tobyhanna Army Depot, Pennsylvania.
Notes
1. U.S. Dep’t of Army, Reg. 15-6, Procedures for Administrative
Investigations and Boards of Officers
para. 1-1 (1 Apr. 2016) [hereinafter AR 15-6].
2. Id. ch. 7.
3. Id. para. 1-11 (“A suspect or subject of an inquiry or investigation is not a designated respondent, and the procedural requirements set forth in chapter 7, section II, of this regulation do not apply.”).
4. Searches of civilian workplaces can also be a major part of Army Regulation (AR) 15-6 investigations, which is beyond the scope of this article. For a thorough analysis of administrative searches and Fourth Amendment protections for federal civilian employees, it is highly recommended that an Investigating Officer (IO) and legal advisor read about warrantless searches of Government employees. See Bryan R. Lemons, Public Privacy: Warrantless Workplace Searches of Public
Employees, 7 U. Pa. J. Bus. L. 1 (2004) (discussing cases such as Katz v. United States, 389 U.S. 347, 361 (1967); United States v. Simons, 206 F.3d 392 (4th Cir. 2000); Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002); O’Connor v. Ortega, 480 U.S. 709 (1986); Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001); Nat’l Treasury Emp’s Union v. Von Raab, 289 U.S. 656, 671 (1989); Am. Postal Workers Union v. U.S. Postal Serv., 871 F.2d 556 (6th Cir. 1989)).
5. AR 15-6, supra note 1, para. 1-1. As a resource in general for conducting any kind of administrative investigations, AR 15-6 contains several useful appendices with investigatory tools and tips.
6. Id. at i.
7. Army Regulation 15-6 uses both the terms “subject” and “suspect” to refer to the individual being investigated or simply of interest in the investigation. This article uses the terms interchangeably, since many of the quotations from AR 15-6 will use only one of the terms.
8. AR 15-6, supra note 1, para. 3-4 (explaining representation rights for subjects of an investigation). See also id. para. 3-8(a)(2) (explaining Weingarten rights for witnesses).
9. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). See infra “Statutory Protections” for a more thorough discussion of Weingarten rights. See also Brigham M. Cheney, FAQ re Employees’ Weingarten Rights to Representation, AALRR: Lab. Rels. L. Blog (Mar. 16, 2018), https://www.aalrr.com/Labor-Relations-Law-Blog/faq-re-employees-weingarten-rights-to-representation (discussing Weingarten rights in the private sector); U.S. Fed. Lab. Rels. Auth., Part 3: Investigatory Examinations,
https://www.flra.gov/Guidance_investigatory%20examinations_part%203#55
(last visited May 14, 2021) [hereinafter U.S.
Fed. Lab. Rels. Auth.] (discussing Weingarten rights in the Federal sector).
10. U.S. Const. amend. V (“No person shall . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”).
11. AR 15-6, supra note 1, para. 3-7(d)(7)(b) (“No witnesses or respondents not subject to the Uniform Code of Military Justice (UCMJ) will be required to make a statement or produce evidence that would deprive them of their rights against self-incrimination under the Fifth Amendment of the U.S. Constitution.”). See also id. para. C-3 (“Witnesses cannot be compelled by commanders, supervisors, or IOs to incriminate themselves; to make a statement or produce evidence that is not material; or to make a statement or produce evidence that might tend to degrade them.”).
12. Garrity v. New Jersey, 385 U.S. 493 (1967).
13. Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973).
14. See AR 15-6, supra note 1, para. 3-7(d)(7)(f) (“In certain cases, the appropriate authority may provide a witness or respondent a grant of testimonial immunity and require testimony notwithstanding Article 31, UCMJ, or the Fifth Amendment. Grants of immunity must be made under the provisions of AR 27-10 and any local supplements to AR 27-10.”).
15. U.S. Dep’t of Army, DA Form 3881, Rights Warning Procedure/Waiver Certificate (1 Nov. 1989) [hereinafter DA Form 3881].
16. See id. (“For use of this form, see AR 190-30.”). See generally U.S. Dep’t of Army, Reg. 190-30, Military Police Investigations (1 Nov. 2005). When investigating civilian employees, the military
police or U.S. Army Criminal Investigation Division will handle any
criminal aspects of the investigation, and the IO will handle the
investigation into employee misconduct pursuant to Title 5 of the United
States Code. See, e.g., 5 U.S.C. ch. 75; 5 C.F.R. pt. 572 (2021).
17. DA Form 3881, supra note 15.
18. See appendices A and B for sample statements. Appendix A is a sample Garrity Warning. Appendix B is a sample Kalkines Warning.
19. See, e.g., AR 15-6, supra note 1, para. 3-7(d)(7)(d) (“A Soldier who is suspected of an offense under the UCMJ will be advised of his or her rights under Article 31, UCMJ, before being asked any questions concerning the suspected offense. The Soldier, whether a witness or respondent, will be given a reasonable amount of time to consult an attorney, if requested, before answering any such questions. No adverse inference will be drawn against witnesses or respondents who invoke their rights under Article 31, UCMJ, or the Fifth Amendment. The IO or board should use DA Form 3881 (Rights Warning Procedure/Waiver Certificate) to explain the rights, and to memorialize the explanation and the suspect’s decision.”). Id. para. 3-7(d)(7)(a), (9).
20. Although Garrity and Kalkines warnings affect all federal employees whereas Weingarten rights affect only bargaining unit employees, Weingarten rights are discussed first in this article as they are far more common in AR 15-6 investigations.
21. See 5 U.S.C. § 7114(a)(2), (3); H.R. 3793, 95th Cong. (as reported with amendments, Mar. 3, 1978), reprinted in Legislative History of Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Act of
1978, at 926 (1979),
https://www.flra.gov/system/files/webfm/Authority/Archival%20Decisions%20&%20Leg%20Hist/LEG%20HIST%20OF%20THE%20FSLMRS%20Nov%2019%201979.pdf
[hereinafter Legislative History].
22. Eldridge v. Dep’t of Veterans Affs., No. DC-315H-20-0220-I-1, 2020 MSPB LEXIS 248 (Jan 22, 2020) (citing Lim v. Department of Agriculture, 10 M.S.P.R. 129, 130 (1982)) (“The holding in Weingarten regards the National Labor Relations Act, which does not apply to the appellant or most other federal employees. Nevertheless, Congress afforded federal employees similar rights under the Civil Service Reform Act.”).
23. 29 U.S.C. § 157.
24. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 252–53 (1975).
25. Id. at 267 (citing Chevron Chemical Co., 60 Lab. Arb. 1066, 1071 (1973)). The holding of the Weingarten case emphasizes the fact that it is the employee’s reasonable belief of discipline that determines whether Weingarten rights attach, not whether discipline actually results from the investigatory meeting or interview. Id.
26. Federal Service Labor-Management Relations Act, 5 U.S.C. §§ 7101–7135. See generally A Short History of the Statute, U.S. Fed. Lab. Rels. Auth., https://www.flra.gov/resources-training/resources/statute-and-regulations/statute/short-history-statute (last visited July 22, 2021) (offering a brief history of the statute).
27. Legislative History, supra note 21, at 926.
28. 5 U.S.C. § 7114(a)(2), (3).
29. See generally Am. Fed’n of Gov’t Emps. Council 236, 48 F.L.R.A. 1348, 1354–56 (1994).
In order for a union to have a right to representation under the Statute, all the elements of section 7114(a)(2)(A) must exist. There must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment . . . . [W]e have advised that the totality of the circumstances presented must be examined, but that a number of factors are relevant: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted.
Id. See also Am. Fed’n of Gov’t Emps. Local 1709, 57 F.L.R.A. 304 (2001) (holding that nonsupervisory attorneys can be considered representatives of the agency for purposes of formal discussions). Although formal discussions are beyond the scope of this article, it is important to be familiar with the subject as there is an affirmative obligation to notify the exclusive representative of the bargaining unit before a formal discussion is held with bargaining unit employees. This is in sharp contrast to 5 U.S.C. § 7114(a)(2)(B) and 5 U.S.C. § 7114(a)(3) discussed below, which contain the codification of Weingarten rights for the federal public sector and do not contain the same notice requirements.
30. Am. Fed’n Gov’t Emps. Local 1941 v. FLRA, 837 F.2d 495 (D.C. Cir. 1988).
31. See, e.g., Nat’l Treasury Emps. Union, 15 F.L.R.A. 626 (1984).
32. See AR 15-6, supra note 1, para. 2-3 (discussing Assistant Investigative Officers). The use of assistant IOs can be particularly important in joint investigations between the military services or when Service members and Civilians are being investigated as part of the same AR 15-6 investigation. See generally Captain Balaji L. Narain & Captain Dustin L. Banks, Administrative Investigations and Nonjudicial Punishment in Joint
Environments, JAG Reporter (May 23, 2019), https://www.jagreporter.af.mil/Post/Article-View-Post/Article/2546326/administrative-investigations-and-non-judicial-punishment-in-joint-environments/.
33. Off. of Gen. Couns., U.S. Fed. Lab. Rels. Auth., Guidance on Meetings
(2015),
https://www.flra.gov/system/files/webfm/OGC/Guidances/MEETINGS%20GUIDANCE%208-28-15%20final_1.pdf
[hereinafter OGC Guidance].
[The FLRA] examines the totality of circumstances surrounding each particular meeting and considers such factors as whether the meeting was: (1) designed to ask questions and solicit information from the employee; (2) conducted in a confrontational manner; (3) designed to secure an admission from the employee of wrongdoing; and/or (4) designed for the employee to explain his/her conduct.
Id.at 21. This FLRA resource contains a vast amount of information on formal discussions and Weingarten meetings, much of which is beyond the scope of this primer. The cases of particular importance for a Judge Advocate (JA) and service member IO are discussed throughout this primer.
34. Id. (citing Nat’l Treasury Emps. Union, 15 F.L.R.A. 626, 637 (1984)).
35. Id. (citing Nat’l Treasury Emps. Union v. FLRA, 835 F.2d 1446, 1451 (D.C. Cir. 1987)).
36. Id. (citing Am. Fed’n Gov’t Emps., Nat’l Border Patrol Council, Local 2366, 46 F.L.R.A. 363, 363 (1992)).
37. AR 15-6, supra note 1, para. 3-8a(2).
38. See Nat’l Treasury Emps. Union, 4 F.L.R.A. 237, 252 (1980) (“This approach, which focuses on the interview and its surrounding circumstances, clearly removes from inquiry the individual’s subjective belief and places it on reliable, objective considerations.”); Am. Fed’n Gov’t Emps. Local 2544 v. FLRA, 779 F.2d 719, 724 (D.C. Cir. 1985) (“The FLRA has also defined the ‘reasonably believes’ requirement in § 7114(a)(2)(B) as an objective standard. The relevant inquiry is whether, in light of the external evidence, a reasonable person would decide that disciplinary action might result from the examination.”).
39. Am. Fed’n Gov’t Emps. Local 2328, 51 F.L.R.A. 1741, 1748–49 (1996) (citing Am. Fed’n Gov’t Emps. Local 2544 v. F.L.R.A., 779 F.2d 719, 723 (D.C. Cir. 1986)) (“The Weingarten right applies ‘whenever the circumstances surrounding an investigation make it reasonable for the employee to fear that his answers might lead to discipline. The possibility, rather than the inevitability, of future discipline determines the employee’s right to union representation.’”). Even if no discipline results from the meeting, a violation of Weingarten rights can still lead to a union filing a successful Unfair Labor Practice or Grievance. See, e.g.,
Am. Fed’n Gov’t Emps., Nat’l Border Patrol Council, 41 F.L.R.A. 154
(1991).
40. Am. Fed’n Gov’t Emps. Local 2544 v. FLRA, 779 F.2d 719, 724 (1985)
(noting that “A union has a right to represent an employee even if the
employer does not contemplate taking any disciplinary action against the
employee at the time of the interview, since disciplinary action will
rarely be decided upon until after the results of the inquiry are
known.”).
41. See OGC Guidance, supra note 33, at 25–26.
42. 5 U.S.C. § 7114(a)(2)(A)(ii). Interestingly, this affirmative obligation was almost placed on the employer, rather than the employee, in a similar manner as the employer’s notification requirement in formal discussions. See Legislative History, supra note 21, at 229–31 (proposed amendment by Congresswoman Gladys Spellman that would have required an employer to provide a written advisement to an employee under investigation that he or she had the right to seek a representative of his or her choice).
43. See infra “Weingarten Rights for Bargaining Unit Employees: Best Practices” regarding CBA obligations.
44. Am. Fed’n Gov’t Emps. Council of Prison Locals, 55 F.L.R.A. 388, 389 (1999).
45. Id. at 394.
46. Id.
47. Tidewater Virginia Fed. Emps. Metal Trades Council, 35 F.L.R.A. 1069, 1077 (1990). See also Am. Fed’n Gov’t Emps. Local 3148, 27 F.L.R.A. 874, 880 (1987); Am. Fed’n Gov’t Emps. Local 0033, 20 FSIP 019 (2020).
In order for the section 7114(a)(2)(B) investigatory examination right to exist . . . the following rules apply: Rule 1—The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request. Rule 2—After the employee makes the request, the employer must choose from among three options: Grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee; Deny the request and end the interview immediately; or Give the employee a clear choice between having the interview without representation, or ending the interview. Rule 3—If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.
Id.
48. See Am. Fed’n Gov’t Emps., Nat’l Border Patrol Council, 42 F.L.R.A. 834 (1991) as an example where Weingarten rights were offered, but the bargaining unit employee was subtly coerced into not having his union representative present for the interview.
49. Nat’l Treasury Emps. Union Chapter 208, 65 F.L.R.A. 79, 84 (2010) (quoting Am. Fed’n Gov’t Emps., Local 171, 52 F.L.R.A. 421, 432–33 (1996)).
50. Id. (citing Am. Fed’n Gov’t Emps. Local 3434, 50 F.L.R.A. 601, 607 (1995)).
51. Id. (citing NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)).
52. Id. (citing NLRB v. Texaco, 659 F.2d 124, 126 (9th Cir. 1981)).
53. Id. (citing Yellow Freight Sys., Inc., 317 N.L.R.B. 115, 124 (1995)).
54. Id. (citing Nat’l Treasury Emps. Union, 5 F.L.R.A. 297, 307 (1981)).
[T]he Authority [has rejected the position that] an investigator “was entitled to obtain a statement from the employee without interruption from her representative.” Specifically . . . “some interruption, by way of comments re[garding] the form of questions or statements as to possible infringement of employee rights, should properly be expected from the employee’s representative.” In this connection, “[t]he employer always retains the option to refrain from conducting the examination in the event it decides that the interview, in the presence of a union representative, is not efficacious.” In addition, the judge found that even prohibiting the union representative from “pass[ing] notes” to the employee during the interview would impermissibly “circumscribe the effectiveness of the representative.” (citations omitted).
Id.
55. Id. (citing Nat’l Fed’n Fed. Emps. Local 589, 48 F.L.R.A. 787, 798, 799 (1993), on recon. 49 F.L.R.A. 171, recon. denied, 49 F.L.R.A. 701 (1994)) (“[E]ven where a representative has been permitted to confer with an employee and make statements ‘off the record,’ the Authority has found no ‘meaningful representation[]’ where there was no indication that off-the-record statements would be considered in making a final determination regarding discipline.”).
56. See U.S. Fed. Lab. Rels. Auth., supra note 9.
57. Id.
58. Am. Fed’n Gov’t Emps. Local 171, 52 F.L.R.A. 421, 432–38 (1996).
59. Hours or days, not weeks or months.
60. See generally Am. Fed’n Gov’t Emps. Local 197, 46 F.L.R.A. 1210, 1223 (1993).
61. Am. Fed’n Gov’t Emps. Local 709, 54 F.L.R.A. 1502, 1513 (1998).
To effectuate an agency’s legitimate concerns regarding the integrity of its investigation and the union’s right to designate the representatives for purposes of section 7114(a)(2)(B) of the Statute, it is necessary to accommodate these interests. Our framework of accommodation is governed by the presumption that a union can designate the individual it wants as its representative during a Weingarten examination . . . . By adopting this presumption, we continue to recognize the agency’s interest in preserving the integrity of its investigation. Therefore, an agency can rebut this presumption. We hold that an agency may preclude a particular individual from serving as the union’s designated representative only where the agency can demonstrate “special circumstances” that warrant precluding a particular individual from serving in this capacity. . . . “Special circumstances” will, consistent with its application in the private sector, be construed narrowly to preserve the union’s normal prerogatives. We emphasize, in addition, that even if an agency can demonstrate such special circumstances, a union nonetheless may exercise its right of representation by designating another individual to serve as a representative. (citation omitted).
Id.
62. Although the “bargaining unit” is the foundational element of the Federal Service Labor-Management Relations Statute (FSLMRS), it is not actually defined in the statute. However, the FSLMRS does list the criteria for determining appropriate bargaining units and the types of employees that must be excluded from bargaining units. See 5 U.S.C. § 7112. See also 5 U.S.C. § 7103(a)(2), (10), (11), (13), (15).
63. 5 U.S.C. § 7103(a)(8) (“‘collective bargaining agreement’ means an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter”); 5 U.S.C. § 7103(a)(12).
“Collective bargaining” means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.
5 U.S.C. § 7103(a)(12).
64. U.S. Off. of Personnel Mgmt., SF 50, Notification of Personnel Action (July 1991).
65. See 5 U.S.C. § 7112(b)–(c) for a list of positions not eligible to be in a bargaining unit.
66. Bargaining Unit, U.S. Off. of Personnel Mgmt., https://dw.opm.gov/datastandards/dataStandard/1406 (last visited July
27, 2021).
67. Id.
68. Remember that in determining whether an employee is entitled to Weingarten rights, it is irrelevant whether the employee is a dues-paying member of the union. All that matters is that the employee is a member of the bargaining unit.
69. See Fed. Emps. Metal Trades Council of Charleston, S.C., 32 F.L.R.A. 222 (1988) (“Nothing in the plain wording of the section supports the conclusion that ‘the unit’ referred to in section 7114(a)(2)(B) means the bargaining unit which encompasses an employee’s position at the time of the events which are the subject of the examination.”).
70. 5 U.S.C. § 7114(a)(3).
71. Weingarten rights are still being litigated today at the Federal Service Impasse Panel—specifically whether an Agency must affirmatively provide notice of Weingarten rights to each individual employee under investigation. See, e.g., Am. Fed’n Gov’t Emps. Local 0033, 20 F.S.I.P. 019 (2020).
72. 5 U.S.C. § 7114(b)(4).
73. Interestingly, AR 15-6 states, “Various statutes and regulations govern adverse personnel actions against Department of the Army civilian employees. Supervisors should consult with the servicing civilian personnel office and servicing SJA or legal advisor if formal disciplinary action is contemplated against a civilian employee (see AR 690-700).” AR 15-6, supra note 1, para. 1-12b. However, at the time of publication of this article, AR 690-700 is not available for reference. According to the Army’s Publication Directorate, revisions to the regulation have been in legal review since 13 August 2020. FY21 Over 20 Year Old Publication Status as of 15 JUL 2021, Army Publ’g Directorate, https://armypubs.army.mil/pdf/administrative_pubStatus.pdf (last visited July 27, 2021). 5 U.S.C. § 7503 and 5 U.S.C. § 7513 contain some of the due process rights afforded to civilian employees, including the right to respond to proposed adverse actions.
74. AR 15-6, supra note 1, para. C-2 (“The legal advisor’s role, however, is to provide legal advice and assistance, not to conduct the investigation.”).
75. For a general list of actions which an exclusive representative may and may not take with respect to an investigatory examination, see U.S. Fed. Lab. Rels. Auth., supra note 9.
76. See Am. Fed’n Gov’t Emps., 59 F.L.R.A. 767 (2004) (analyzing the flagrant misconduct standard).
77. Id.
78. This notice has been adapted from U.S. Department of Agriculture, Office of Human Resources Management,
Annual Weingarten Notice, https://www.dm.usda.gov/employ/labor/weingarten.htm (last visited
Dec. 17, 2020).
79. Advanced labor and employment law practitioners may be interested in
an older, but still relevant, deep dive into the historical evolution of
case law regarding self-incrimination in investigative interviews.
See generally Luther G. Jones, III, The Privilege Against Self-Incrimination of the Public Employee in an
Investigative Interview, Army Law., Nov. 1985, at 6.
80. AR 15-6, supra note 1, para. C-2(c).
81. An administrative investigation examines underlying conduct that may or may not constitute a crime. By using an administrative investigation, the agency is not necessarily looking at the criminality of the conduct but instead at the alleged underlying misconduct as it relates to the efficiency of the service.
82. Taylor v. USPS, 49 M.S.P.B. 155, 160 (1991).
83. Garrity v. New Jersey, 385 U.S. 493 (1967).
84. Id. at 494.
85. Id. at 494-95.
86. Id. at 500.
87. See, e.g., Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280 (1968); Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 426 F. 2d 619 (2d Cir. 1970), cert. denied, 406 U.S. 961 (1972).
88. Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973).
89. Id. at 1391–92.
90. Id. at 1392, 1396–98.
91. Id. at 1393 (emphasis added). See also Luna v. Dept. of Homeland Security, No. DA-0752-15-0498-I-1, 2017 M.S.P.B. LEXIS 1813 (Apr. 20, 2017) (citing Kalkines, 473 F.2d at 1393).
92. Kalkines, 473 F.2d at 1398.
93. Christine M. Bulger, Know the Difference Between Garrity, Kalkines Warnings in Investigations, CyberFeds (Sept. 18, 2015), https://www.cyberfeds.com/CF3/index.jsp?contentId=22699348 (discussing the use of Kalkines and Garrity warnings by the Office of Inspector General; website requires a subscriber login).
94. Memorandum from Christopher A. Wray to All Federal Prosecutors, subject: The Increasing Role of the Offices of Inspector General, and Uniform Advice of Rights Forms for Interviews of Government Employees (6 May 2005) [hereinafter Wray Memo].
95. Anjali Patel, Provide Kalkines Warning Before Criminal Investigation Interview, Cyberfeds (Jun. 7, 2013), https://www.cyberfeds.com/CF3/index.jsp?contentId=158312 (“A Kalkines warning grants employees ‘use immunity,’ which means that any truthful statements made in response to the investigation are immune from subsequent use in a criminal prosecution against them”; website requires a subscriber login).
96. Id.
97. Miranda v. Arizona, 384 U.S. 436 (1966).
98. See Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621 (1996).
99. See United States v. Veal, 153 F.3d 1233, 1239 n.4 (11th Cir. 1998) (“The Fifth Amendment protection afforded by Garrity to an accused who reasonably believes that he may lose his job if he does not answer investigation questions is self-executing; that is, it arises by operation of law; no authority or statute needs to grant it.”). See also Sher v. U.S. Dep’t of Veterans Affs., 488 F.3d 489, 500–05 (1st Cir. 2007) (analyzing Garrity immunity).
100. U.S. Dep’t of Just., Criminal Resource Manual §§ 716–717.
Title 18 U.S.C. § 6002 provides use immunity instead of transactional immunity. The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government’s use of his or her immunized testimony in a prosecution of the witness—except in a subsequent prosecution for perjury or giving a false statement.
Id.
101. Many Kalkines and Garrity references omit this important step and instead infer that an agency has sole discretion to grant testimonial immunity. See, e.g., Lieutenant Sara Black, Administrative Investigations—Civilian Personnel Warnings, Advisor, Oct. 2018, at 3 https://www.jag.navy.mil/documents/THE_ADVISOR_OCT2018.pdf .
102. 18 U.S.C. §§ 6001–6005.
103. 18 U.S.C. § 6004.
104. Id.
105. AR 15-6, supra note 1, para. 3-7(f) (“In certain cases, the appropriate authority may provide a witness or respondent a grant of testimonial immunity and require testimony notwithstanding Article 31, UCMJ, or the Fifth Amendment. Grants of immunity must be made under the provisions of AR 27-10 and any local supplements to AR 27-10.”). Army Regulation 27-10 was updated on 20 November 2020, with an effective date of 20 December 2020; however, the section regarding the procedure for granting testimonial immunity remains substantially the same. Compare U.S. Dep’t of Army, Reg. 27-10, Military Justice para. 2-4(c) (11 May 2016) [hereinafter AR 27-10 (2016)], with U.S. Dep’t of Army, Reg. 27-10, Military Justice
para. 2-4(c) (20 Nov. 2020) [hereinafter AR 27-10].
106. Compare AR 27-10, supra note 105, para. 2-4(b), with id. para. 2-4(c).
107. AR 27-10, supra note 105, para. 2-5 (“Prior to initiating an investigation in support of administrative action into a matter that is subject to a pending Department of Justice criminal investigation or prosecution, the investigative agency will coordinate with and obtain concurrence from the appropriate Department of Justice prosecutor or investigative agency.”); AR 15-6, supra note 1, app. C-2 (“Criminal investigations and administrative investigations conducted using AR 15-6 can occur simultaneously and share information, provided that the administrative investigation does not conflict with the criminal investigation.”).
108. AR 15-6, supra note 1, para. C-2 (“An investigation may be conducted before, concurrently with, or after an investigation into the same or related matters by another command or agency . . . . [Investigating Officers] must ensure that investigations do not . . . interfere with criminal investigations. . . . In cases of concurrent investigations, IOs should coordinate with the other command or agency to avoid duplication of effort . . . . [Investigative Officers] should request any relevant information that the other organization has obtained. The IO may incorporate and consider the results of other available investigations into the AR 15-6 investigation. . . . Additionally, an IO should immediately coordinate with the legal advisor and inform the appointing authority if he or she discovers evidence of serious criminal misconduct.”).
109. 5 U.S.C. § 6329b.
110. 5 C.F.R. § 752.402 (2021); Rittgers v. Dep’t of the Army, 2011 M.S.P.B. 101 (2011).
111. See supra “Weingarten
Rights for Bargaining Unit Employees.”
112. AR 15-6, supra note 1, para. 3-7(d)(7)(e) (“The right to invoke Article 31, UCMJ, or the Fifth Amendment, is personal. No one may assert the right for another person, and no one may assert it to protect anyone other than himself or herself.”).
