SUPERVISOR ORDERS YOU TO WRITE SOMETHING
If your are given neither a Miranda warning nor a Kalines warning and are ordered by a supervisor to give a statement or face discipine up to removal, add this sentence at the beignnning of your statement to immunize it from use in a criminal proceeding.
"I (STATE OWN NAME) HAVE BEEN ORDERED TO GIVE THIS STATEMENT BY MY SUPERVISORS AND I UNDERSTAND THAT IF I DO NOT GIVE THIS STATEMENT, I WILL BE SUBJECT TO DISCIPLINE UP TO REMOVAL FOR INSUBORDINATION OR FAILURE TO COMPLY."
KALKINES RIGHTS
The Kalkines warning is an advisement of rights usually administered by United States federal government agents to federal employees and contractors in internal investigations. The Kalkines warning compels suspects to make statements or be fired, but also provides suspects with criminal immunity for their statements. It was promulgated by the U.S. Court of Federal Claims in Kalkines v. United States.[1] In that case, a federal employee was fired for not cooperating with an internal investigation. The Court of Claims found that the employee had not been sufficiently advised of his immunity to criminal prosecution, nor sufficiently warned that he would be fired if he refused to cooperate.
A typical Kalkines warning (exact wording varies between federal investigative agencies) may read as follows:
You are being questioned as part of an internal and/or administrative investigation. You will be asked a number of specific questions concerning your official duties, and you must answer these questions to the best of your ability. Failure to answer completely and truthfully may result in disciplinary action, including dismissal. Your answers and any information derived from them may be used against you in administrative proceedings. However, neither your answers nor any information derived from them may be used against you in criminal proceedings, except if you knowingly and willfully make false statements.
The Kalkines warning helps to ensure an employee's Constitutional rights, while also helping federal agents effectively conduct internal and administrative investigations.
HISTORY BEHIND KALKINES RIGHTS
Kalkines v. United States
473 F.2d 1391 (Ct. Cl. 1973)
Case Text
Facts
George Kalkines worked for the U.S. Treasury Department's Bureau of Customs from November 1960 until his suspension in June 1968, when he came under investigation for taking improper payments (bribes) from importers' representatives.
At the same time that the internal investigation was taking place, a criminal investigation was being conducted by the U.S. Attorney's Office. Although ultimately Kalkines was not indicted, the criminal investigation was known to him and was ongoing while he was facing the internal investigation.
On four occasions, Kalkines refused to answer certain questions related to the payments, his finances, and aspects of the performance of his duties. On none of these occasions was he given any advice or warnings relating to his constitutional rights. For his refusal to answer, he was dismissed from his job. The agency affirmed his dismissal, as did the Civil Service Commission.
Issue
Was the plaintiff duly advised of his options and the consequences of his choice?
Holding
He was not duly advised of his options and the consequences of his choice, and therefore his discharge was invalid.
Reasoning
". . . the public servant 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" (1393).
Uniformed Sanitation I uses the phrase "after proper proceedings" and Uniformed Sanitation II defines that as ""duly advised of his options and the consequences of his choice" and "assured of protection against use of his answers or their fruits in any criminal prosecution." Therefore, the issue becomes whether or not the employee was duly advised of his options and the consequences of his choice (1393).
". . . by failing to make and maintain a clear and unequivocal declaration of plaintiff's 'use' immunity, the customs agents gave the employee very good reason to be apprehensive that he could be walking into the criminal trap if he responded to potentially incriminating questions" (1398).
Commentary
The appellate division of the U.S. Court of Claims, which issued this decision, was merged with the United States Court of Customs and Patent Appeals in 1982 to form the United States Court of Appeals for the Federal Circuit.
Employment-related case decisions made by this court are only directly applicable in federal employment. However, the concept of a written statement of rights has been widely adopted by public employers (see Resources for a downloadable sample), and a similar advisement is required in the Seventh Circuit as a result of Confederation of Police v. Conlisk.
In Kalkines, the court deduced from Uniformed Sanitation I and especially Uniformed Sanitation II that the employee must be advised of their rights before questioning takes place.
As a result, a warning known as a "Kalkines Warning" is now administered to federal employees and contractors prior to questioning.
GARRITY RIGHTS
The Garrity warning is an advisement of rights usually administered by U.S. federal agents to federal employees and contractors in internal investigations. The Garrity warning advises suspects of their criminal and administrative liability for any statements they may make, but also advises suspects of their right to remain silent on any issues that tend to implicate them in a crime.
It was promulgated by the Supreme Court of the United States in Garrity v. New Jersey (1967). In that case, a police officer was compelled to make a statement or be fired, and then criminally prosecuted for his statement. The Supreme Court found that the officer had been deprived of his Fifth Amendment right to silence.
A typical Garrity warning (exact wording varies between federal investigative agencies) may read as follows:
You are being asked to provide information as part of an internal and/or administrative investigation. This is a voluntary interview and you do not have to answer questions if your answers would tend to implicate you in a crime. No disciplinary action will be taken against you solely for refusing to answer questions. However, the evidentiary value of your silence may be considered in administrative proceedings as part of the facts surrounding your case. Any statement you do choose to provide may be used as evidence in criminal and/or administrative proceedings.
The Garrity warning helps to ensure suspects' constitutional rights, while also helping federal agents preserve the evidentiary value of statements provided by suspects in concurrent administrative and criminal investigations.