Kalkines v. United States
473 F.2d 1391 (Ct. Cl. 1973)
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.
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.
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.
