WHAT IS ADEQUATE NOTICE OF CRIMINAL IMMUNITY?

The U. S Constitution permits a federal employees not to answer official questions put to them in any investigation proceeding, civil or criminal, formal or informal, when the answers might incriminate them in future criminal proceedings. Generally, an agency accomplishes this by giving the employees adequate notice both that they are subject to discharge for not answering and that their replies (and their fruits) cannot be employed against them in a criminal case. That is commonly known as a Kalkines right. But that leaves the question of what constitutes “adequate” notice of immunity.

MSPB has just affirmed that an adequate assurance of immunity under Kalkines does not require assent, written or otherwise, from DOJ. In this specific case, the agency clearly notified the appellant that his failure to cooperate in the interview could result in administrative discipline, up to and including removal, and that neither the answers he gave to the interview questions nor any information gathered by reason of those answers could be used against him in a criminal prosecution.

The Board also confirmed that an adequate notice provided by an agency is binding on the Government even absent the explicit assent of DOJ. Stated differently, a Government employee is not entitled to formal DOJ immunity before being compelled to answer an employer’s questions.

You can find this case at Sergio Luna, Appellant, v. Department of Homeland Security, 2024 MSPB 2, January 10, 2024