Forensics Journal - Stevenson University 2011 | Page 15

FORENSICS JOURNAL

According to Tatum, the decision to relinquish prosecution and seek
administrative remedies is usually determined by the agency investigators in conjunction with investigative counsel and supervision.
In Tatum’s experience, prior to proceeding with the use of Kalkines
warnings, the investigator would discuss the case with the AUSA and
seek a formal declination of prosecution. At this point, the AUSA
would strategize with the investigators to ensure the decision is the
right one. However, Tatum does not recall a time when he did not
accept the direction of the agency investigator (Tatum), since Kalkines
is a “win-win” for the agency. If the conduct under investigation is
minor and the main objective is termination and not prosecution,
then Kalkines can be utilized to compel the employee to provide
information or be subject to discipline for insubordination (Tatum).

tections guaranteed in the Bill of Rights into employment rules and
law (The Rights of Employees). Employers certainly have a responsibility to all employees and stakeholders to manage a safe and secure
workplace while protecting company assets, which includes ensuring
that employees who are involved in dishonesty and misconduct are
properly disciplined. Even the ACLU recognizes that employers have
every right to expect workers to do their jobs, and must take appropriate action when workers fail to do so (The Rights of Employees).
Employers have to balance this obligation with the duty to treat
employees fairly and to comply with laws, labor agreement, regulations, and judicial rulings that provide due process protections to
their workers.
A person’s livelihood and the welfare of his or her family can depend
on continued employment. In a presentation to the Montgomery
Bar Association, Kimberly Ashbach, Esq. cites decisions indicating
public employees enjoy a property interest in their jobs (Ashbach).
Despite the property interest notion, employment-at-will laws in
effect in virtually all states provide that in the absence of a contract or
union agreement, workers are employed at the will of their employer.
With the exception of established unlawful discriminatory practices
in addition to various state common law exceptions, employees may
be terminated at any time for any reason, or no reason at all. Regardless of employment-at-will, in the interest of due process, a solvent
employer will probably be, and arguably should be, held to a standard
that a termination must be for some cause.

Tatum emphasized that once Kalkines warnings are provided, the
compelled statement or any fruits of the compelled statement cannot
be used in a criminal trial. Any independent evidence used in a criminal proceeding creates a “heavy burden” for the prosecution to prove
that this evidence was not the result of the compelled statement. The
lesson: OIGs must conduct a thorough investigation prior to interviewing the subject-employee (Tatum).
Regarding Weingarten, OIG investigators are instructed to notify
the employee that he or she is entitled to union representation only