When Criminal and Administrative Processes Meet

The Need to Assert Your Privilege against Self-Incrimination during a Disciplinary Proceeding in Order to Trigger Your 5th Amendment Protections

In a recent case, the FLRA upheld an arbitration award ruling that the agency had just cause to suspend the grievant for unauthorized possession of government property. At the time of the arbitration hearing, a criminal investigation was ongoing and had not yet been completed. The union argued that the arbitration award violated the employee’s Fifth Amendment privilege against self-incrimination because the agency failed to delay the administrative disciplinary proceeding and arbitration hearing until after the final disposition of the criminal matter.

The Fifth Amendment provides that that no person “shall be compelled in any criminal case to be a witness against himself.” The privilege not only applies to a criminal prosecution but also applies to “any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” The Supreme Court extended this Fifth Amendment protection to public employment situations in Garrity v. New Jersey, 385 US 493, 49798 (1967). Accordingly, the privilege could apply to an agency investigation and arbitration proceeding in the federal sector.

The privilege against self-incrimination is violated when an agency compels an employee to testify and this testimony could incriminate the employee. In the instant case, the FLRA agreed that the Fifth Amendment would have been violated had the agency penalized an employee who had elected to assert the privilege. However, there was no evidence that the employee was compelled to make any statements that could incriminate him during either the administrative investigation or the arbitration hearing. More importantly, the employee never, at any time, asserted his Fifth Amendment right against self-incrimination.

Bottom line: if an employee faces an administrative investigation that is running concurrent with a criminal investigation of the same matter, or if the employee simply fears that the administrative hearing could result in self-incrimination in a future criminal proceeding, the employee needs to assert his Fifth Amendment privilege against self-incrimination as soon as possible. Any NATCA representative who may be formally representing an employee in a situation like this should stay aware, from the outset of the administrative process, of the possibility of the matter becoming criminal since the union must stop any representational role once an issue becomes a criminal matter. And of course, if an employee invokes the Fifth Amendment, this is clearly when the union representative must stop representing the employee and advise him to retain outside criminal counsel.

See AFGE, Local 3310 and Department of the Army, 111 LRP 7201, 65 FLRA No. 91, 0-AR-4259 (FLRA 01/27/11).