MSPB WATERS DOWN THE KALKINES RIGHT

While the Commander-in-Chief is busy redecorating the oval office in a style that can only be described as neo-bordello, his bouncers at the MSPB have been chipping away at the Constitutional rights of federal employees. For longer than most of our readers have been alive the Supreme Court has held that a public employee “…cannot be discharged simply because he invokes his Fifth Amendment privilege against self-incrimination in refusing to respond.”  This is called the Kalkines right after the name of the case it came from. The court spelled out a two-part test that public employees only “subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.”   Nonetheless, the MSPB Trumpettes recently added a third element when they upheld the termination of an IRS supervisor (Michelle Shows) who refused to answer a question when being grilled by her supervisor because…  

“the appellant failed to identify any reasonable basis for her concern that the agency was considering criminal action and that her belief that the agency intended to pursue criminal action was ‘purely conjecture.’”

Even if it is legal for MSPB to supplement the Supreme Court’s law by demanding the employee prove s/he had a reasonable basis for concern, this case was overflowing with evidence that there was.  Ms. Shows’ supervisor suspected that Ms. Shows’ was allowing someone else to listen in on their telephone conversation and demanded that Ms. Shows reveal if that was true and who that was.  In the IRS it is a violation of federal law to reveal to anyone information about taxpayers.  That even applies to letting other IRS employees  know details about cases that they are not officially assigned to work.  If Ms. Shows had admitted that someone was listening in on the conversation, her supervisor would have been duty bound under the agency’s conduct handbook to report that to the Treasury Department investigators who pursue criminal actions against employees.  Indeed, the record shows that the supervisor contacted did go right to those investigators with her suspicions about the call. The MSPB Trump-mites said that was irrelevant because the supervisor testified she did so only to protect her own state law rights as a citizen of Maryland. If that was true, why did she go to federal officials to report the matter rather than state authorities? A Deputy Director of the agency also testified that he also had no intention of pursuing a criminal investigation. However, he had no authority one way or the other to pursue or squash a criminal inquiry.  That is totally up to the Treasury investigators.

In short, the Trump MSPB held Ms. Shows had no reasonable basis of concern despite irrefutable agency conduct rules, federal statute, and numerous prosecutions of IRS employees for the unauthorized disclosure of taxpayer information. The Board based this because two of her supervisors testified it was not their intent to pursue criminal actions despite immediately reporting the incident directly to the Treasury investigators whose job it is to pursue criminal violations.

We are going to have to put up with Trump destroying over 200 years of decorating the White House in the federalist style, even if he soon adds red velvet curtains, lava lamps, and other cathouse  accoutrements to the gold filigree he has shamelessly splashed around the oval office.  But we do not have to stand pat while the MSPB does the equivalent with our Constitutional rights. Here’s hoping that this abusive MSPB decision is reversed sooner rather than later.

For more details about this case, check out 2025 MSPB 5 Docket No. DC-0752-22-0160-I-3 Michelle Shows, Appellant, v. Department of the Treasury, Agency. November 25, 2025