Postal Reporter readers posted the following responses to news article ” Former Postal VP Azeez Jaffer Denies Accusations... and the Office of Inspector General’s Report issued on Jaffer:

No criminal charges will happen. Unfortunately based on the reportit looks like the prosecutor was already asked by the investigators if they would prosecute and said no. That’s why they gave the Kalkines warning. Neither the PMG, ig, inspectors arrest someone, most of the time, without the prosecutor giving the go sign and with this type of high profile person never without prior approval. So don’t bad mouth the ig. I’m not their biggest fan but in this case they did what they could and the pmg has absolutely NO arrest powers.

Another PR Reader writes:

It has been my understanding that an investigator never gives a person Kalkines warnings or compel statements from the subject of an investigation without the permission of the appropriate U. S. Attorney’s or prosecutor’s office.

Sidebar: As reported on on 8/21/06 USPS removed Jaffer’s ‘Setting the Record Straight’ articles, link

 Both APWU and NALC addressed Garrity and Kalkines warnings last year in their monthly publications to members:

American Postal Workers Union:  Kalkines Warning

also see:  Failure to Provide Garrity and Kalkines Warnings in Disciplinary Investigations

In Kalkines v. United States (1973), the U.S. Court of Claims elaborated on the Supreme Court’s holdings, finding that an employee can be asked to “answer pertinent questions about the performance of an employee’s duties … when that employee is duly advised of his options to answer under the immunity granted or remain silent and face dismissal.” In other words, if an employee is given immunity, but nonetheless decides not to answer questions, the government may discipline the employee for not answering the questions. In the Postal Service, any such discipline is, of course, subject to the grievance procedure.

The Kalkines ruling is an attempt to balance the Fifth Amendment’s right against self-incrimination with the Supreme Court’s holding that the government has the right to have its employees answer questions about the performance of their official duties. In getting this information from employees, according to Kalkines, the Fifth Amendment is not violated so long as the government also grants the employee immunity from prosecution based upon that information.

National Association of Letter Carriers: Garrity Warning

Garrity vs New Jersey (1967)

The Garrity ruling fundamentally addressed evidentiary issues with regard to criminal proceedings. The case involved police officers who were being investigated for alleged fixing of traffic tickets. During the investigation the officers were told that anything they said might be used against them in any state criminal proceeding and they had the privilege to refuse to answer if the disclosure would tend to incriminate them, but if they refused to answer they would be subject to removal from office. In summary, the court held that a later prosecution cannot constitutionally use statements (or their fruits) coerced from the employee by a threat of removal from office if he/she fails to answer the question.

The Garrity and Kalkines warnings serve somewhat different purposes. A Garrity warning waives the government’s right to discipline an employee for remaining silent, but preserves its right to use any statement the employee voluntarily makes against him/her in a subsequent criminal prosecution. A Kalkines warning waives the government’s right to use voluntary statements in a criminal prosecution, but preserves its right to discipline an employee for refusing to cooperate in the investigation.

Notably absent in both warnings is information about an employee’s Weingarten Rights. Despite all the warnings and legal language, employees still have a right to union representation. Employees need to remember that despite assurances that any information will not be used against them in a criminal proceeding; there are no assurances that the information will not be used against them in administrative or disciplinary proceedings

According to information by Mahoney and Mahoney, attorneys at law, it appears Jaffer may not face criminal charges:

Often, in the midst of an investigation, federal agents will provide the target employee with Garrity/Kalkines or Miranda warnings during an interview. Miranda warnings, used in a criminal investigation, guarantee your right to remain silent, but warn you that what you say may be used against you in a criminal prosecution. They also guarantee you the right to have an attorney present during the investigation interview.

If the investigation does not involve a criminal allegation, but administrative employee misconduct instead, the government should provide the subject employee with a Garrity/Kalkines warning. The Garrity/Kalkines warning is the exact opposite of Miranda. It states that you must answer the investigators’ questions truthfully, but are immune from criminal prosecution based upon your answers, unless you do not tell the truth. In an administrative investigation under Garrity/Kalkines, you may not have the right to have an attorney present, but usually the federal government will allow an employee to be accompanied by an attorney.

If the investigators conclude that there was employee misconduct in an administrative investigation, the government cannot bring criminal charges based upon the employee’s compelled answers. However, they can discipline that employee by demotion, unpaid suspension, or removal.

Related links:

APWU to OIG: Postal Workers Have A ‘Right To Remain Silent’

APWU Questions Transition of Work from Postal Inspection Service To OIG

Know Your Weingarten Rights