The defendant was a federal employee who was suspected of taking money in return for favorable treatment. There was an on-going criminal investigation of the defendant concurrent with this civil/administrative inquiry. He was called for four interviews. In three of those interviews, the defendant was not told that his answers would not be used against him in a criminal prosecution. In one interview he was told of this fact. The defendant was fired for violating a personnel policy that required employees to provide information in their possession about agency matters and to allow agents to obtain information on employee financial matters.
Whether the defendant was advised of his options and the consequences of his choice and was adequately assured of the protection against the use of his answers or their fruits in any criminal prosecution?
No. The government must provide sufficient warnings.
In citing Gardner v. Broderick, the appellate court reaffirmed that a person cannot be discharged simply because he invokes his Fifth Amendment right against selfincrimination in refusing to respond. The appellate court also cited Garrity v. New Jersey, holding that a later prosecution cannot constitutionally use statements, or their fruits, coerced from a government employee in an earlier disciplinary investigation by threat of removal from office if he fails to answer questions. A government employer can insist on answers or remove an employee for refusal to answer if the employee is adequately informed both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be used against him in a criminal case.
473 F.2d 1391 (1973)