Kalkines v. United States

• Decision Date: 01 June 1973
• Docket Number: No. 534-71.,534-71.
• Citation: 473 F.2d 1391
• Parties: George KALKINES v. The UNITED STATES.
• Court: U.S. Claims Court

473 F.2d 1391 (1973)

George KALKINES v. The UNITED STATES.

No. 534-71.

United States Court of Claims.

February 16, 1973.

As Amended on Rehearing June 1, 1973.

Arthur Goldstein, Huntington, N.Y., attorney of record, for plaintiff. Goldstein & Hirschfeld, Huntington, N.Y., and David Serko, New York City, of counsel.

Judith A. Yannello, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.

Before COWEN, Chief Judge, DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG, and BENNETT, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge:

Plaintiff George Kalkines worked for the Bureau of Customs of the Treasury Department from November 1960 until his suspension in June 1968, rising from an initial rating of GS-7 to the position of import specialist, GS-13. His suspension and subsequent discharge came about because of his alleged failure, in violation of the Customs Manual, the Customs Personnel Manual, and the Treasury Personnel Manual,¹ to answer questions put to him by the Bureau of Customs relating to the performance of his duties. According to management, this failure occurred at four separate interviews, three in New York and one in Washington, each listed as an individual specification of the charge. The agency sustained his removal on this charge, upholding each of the four specifications.² The Civil Service Commission affirmed. The validity of this determination is brought before us by the parties' cross-motions for summary judgment, both of which invoke the administrative record on which we rest for our decision.³

In November 1967 the Bureau of Customs began an investigation sparked by information saying that plaintiff had accepted a $200 payment from an importer's representative in return for favorable treatment on valuation of a customs entry. The inquiry initially disclosed that plaintiff had had lunch with the representative on November 16th and had made a $400 deposit in his personal bank account on November 17th. He was then visited or summoned by customs agents (acting as investigatory arms of the Bureau) on several occasions, at four of which (November 28, 1967, May 2, 1968, May 8, 1968, all in New York, and June 5, 1968, in Washington) he did not answer, or indicated that he would not answer, certain questions relating to the $400 deposit, his finances, and some aspects of the performance of his customs duties. At other interviews he did answer the queries then put to him. Plaintiff's defense is that his failure to reply at the four specified times was excusable and justifiable in each instance, and therefore not contrary to the directives cited in footnote 1, supra.

The most important fact bearing on the propriety of Mr. Kalkines' conduct at the interviews is that, for all or most of the time, a criminal investigation was being carried on concurrently with the civil inquiry connected with possible disciplinary proceedings against him. The United States Attorney's Office had been informed about the possible bribery before the customs agents' first interview with plaintiff, and it became active in investigating the matter in December 1967; witnesses were subpoenaed to, and did, testify before the grand jury. This criminal inquest continued until well into the spring of 1968, and perhaps even longer. Plaintiff was never indicted, the United States Attorney ultimately declining prosecution, but Mr. Kalkines saw the Damoclean sword poised overhead during the entire period with which we are concerned.

In recent years the courts have given more precise content to the obligations of a public employee to answer his employer's work-related questions where, as here, there is a substantial risk that the employee may be subject to prosecution for actions connected with the subject of management's inquiry. It is now settled that the individual cannot be discharged simply because he invokes his Fifth Amendment privilege against self-incrimination in refusing to respond. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L. Ed.2d 1082 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). Conversely, a later prosecution cannot constitutionally use statements (or their fruits) coerced from the employee — in an earlier disciplinary investigation or proceeding — by a threat of removal from office if he fails to answer the question. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). But a governmental employer is not wholly barred from insisting that relevant information be given it; the public servant can be removed for not replying if he is adequately informed both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be employed against him in a criminal case. See Gardner v. Broderick, supra, 392 U.S. at 278, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, supra, 392 U.S. at 283, 284, 285, 88 S.Ct. 1917, 20 L.Ed.2d 1089 hereafter cited as Uniformed Sanitation Men I Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 426 F.2d 619 (C.A.2, 1970), cert. denied, 406 U.S. 961, 92 S. Ct. 2055, 32 L.Ed.2d 349 (1972) hereafter cited as Uniformed Sanitation Men II.

This requirement for a sufficient warning to the employee, before questioning, was foreshadowed by the Supreme Court in Uniformed Sanitation Men I, and has been set forth more exactly by the Second Circuit in Uniformed Sanitation Men II. The highest court said that public employees "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." 392 U.S. at 285, 88 S.Ct. at 1920. "Proper proceedings" of that type means, according to Chief Judge Friendly in Uniformed Sanitation Men II, inquiries, such as were held in that case,⁴ "in which the employee is asked only pertinent questions about the performance of his duties and is duly advised of his options and the consequences of his choice." 426 F.2d at 627 (emphasis added). The same opinion said: "To require a public body to continue to keep an officer or employee who refuses to answer pertinent questions concerning his official conduct, although assured of protection against use of his answers or their fruits in any criminal prosecution, would push the constitutional protection beyond its language, its history or any conceivable purpose of the framers of the Bill of Rights." 426 F.2d at 626 (emphasis added). We think that the general directives of the various Treasury and Customs manuals (footnote 1, supra) should be read with this specific gloss supplied by the Uniformed Sanitation Men opinions.

The only issue we need address is whether plaintiff was "duly advised of his options and the consequences of his choice" and was adequately "assured of protection against use of his answers or their fruits in any criminal prosecution." For the reasons which follow, we hold that this requirement was not fulfilled on any of the four occasions at which he is charged with failing to respond, that as a consequence he did not transgress the duty-to-reply regulations, and therefore that he was invalidly discharged for not answering the questions put to him.

At the interview of November 28, 1967, it is clear that no advice or warnings as to his constitutional rights was given to Mr. Kalkines, though he was told of the requirement of the Customs Manual that he answer. Despite the fact that the matter had already been presented to the United States Attorney (as the customs agents knew), plaintiff was not told that his answers (or information stemming from them) could not be used against him in a criminal proceeding. So as far as the investigators were concerned, he was left sharply impaled on the dilemma of either answering had thereby subjecting himself to the possibility of self-incrimination, or of avoiding giving such help to the prosecution at the cost of his livelihood. The record shows conclusively that at this interview Mr. Kalkines was keenly aware of, and troubled by, the possible criminal implications, and that his failure to respond stemmed, at least in very substantial part, from this anxiety. See also note 6 infra.

The next specification is that plaintiff refused to answer pertinent questions on May 2, 1968.⁵ By this time, he had retained an attorney, but counsel was not present. Mr. Kalkines declined to answer unless he had the opportunity of consulting with his lawyer. After an exchange on this subject, the customs agent did not attempt to question him further, but called the attorney on the telephone and arranged for a joint meeting on May 8th. The Regional Office of the Civil Service Commission "concluded that there was at the least an implied acquiescence to the plaintiff's request for the presence of his attorney as of May 2, 1968, and, in the circumstances, the plaintiff's failure to answer questions on that date may not be recognized to have established a substantive basis to support" the specification as to May 2d which, accordingly, the Regional Office held not to be sustained. Without overturning the Regional Office's factual finding on this point, the Board of Appeals and Review ruled that plaintiff was nevertheless guilty of failing to respond on May 2d. The basis for this holding appears to be that an employee's obligation to answer is so absolute that it cannot even be waived by the interrogating agent's agreement to wait until the lawyer is present. This, we hold, was plain error. If, as in this instance, the interrogator acquiesces in a request that questioning be deferred, the employee cannot be held to have violated his duty to account. The directives of the manuals cannot reasonably be interpreted in so absolute, rigid, and insensitive a fashion.⁶

In addition, there is no...