Last month I seemed to anger some of my regular correspondents when I asked why IRS worker Lois Lerner was able to employ the 5th Amendment in the way she had. I was bothered by the way she seemed to be benefiting from the “best of both worlds” in terms of dancing around the law while apparently flaunting the national interests her job would require her to support. I suppose the lawyers in the crowd have made their case well enough for now, but rather than dragging her into court, how about if we just fire her? That could be the result if a new proposed rule is put in place.
Alabama Republican Rep. Mo Brooks has sponsored legislation that would make refusing to testify in front of Congress a firable offense for federal workers, The Hill reported Thursday
The legislation is nicknamed the “Lerner” bill, after Director of IRS Exempt Organizations Lois Lerner, who plead the Fifth Amendment in front of a House committee on May 22 about her role in the IRS’s targeting of tax-exempt tea party groups.
A tool for termination already exists. It’s called “lack of candor“.
The short version is that if you don’t answer questions about your own work duties and if you aren’t forthcoming about your own work, you get fired. The government can’t afford to have someone who will withhold information and is untrustworthy.
Well, Obama’s IRS and EPA and DOJ and ATF can, but in most of the government, it’s still supposed to be treated as a bad thing.
A description and example from Tully Legal:
Appellate courts also take a hard-line stance with respect to lack of candor charges. As the U.S. Court of Appeals for the Federal Circuit explained in its 2001 ruling in Ludlum v. Dept. of Justice, lack of candor involves an employee’s “failure to disclose something that, in the circumstances, should have been disclosed in order to make the given statement accurate and complete.”
This charge should not be confused with falsification, which involves an “affirmative misrepresentation” and intent to deceive.
In Ludlum, the Federal Circuit affirmed an MSPB decision that upheld a lack of candor charge against an FBI special agent who was not completely forthcoming about how frequently he used his work vehicle to pick up his daughter from daycare. The case represents an all too common situation whereby federal employees engage in lack of candor when attempting to explain (or not explain) work-related situations tangential to their performance objectives in the workplace.
In the case of Lerner, she’s not answering a question directly related to her job from Congress. If Joe the FBI Agent or Jose the USBP Agent or Jane the SSA Investigator did that, they’d have OIG on them in a heartbeat and be on their way out the door. There’s no reason this law is necessary – the problem is the IRS again isn’t doing their job. Whoever her superiors are should be crushing her right now, but they aren’t, because they’re just as corrupt and in agreement with targeting the Tea Party as a financial-warfare wing of the Democrat party.
There’s also a special warning given for when federal employees are targeted and are obligated to speak due to their job, but still protected by the 5th Amendment. It’s called Kalkines rights.
The Kalkines warning is an advisement of rights usually administered by United States federal government agents to federal employees and contractors in internal investigations. The Kalkines warning compels subjects to make statements or face disciplinary action up to and including dismissal, but also provides suspects with criminal immunity for their statements. It was promulgated by the U.S. Court of Federal Claims in Kalkines v. United States. In that case, a federal employee was fired for not cooperating with an internal investigation. The Court of Claims found that the employee had not been sufficiently advised of his immunity to criminal prosecution, nor sufficiently warned that he would be fired if he refused to cooperate.
As a federal employee, a worker can be threatened with termination and might worry more about their job than jail. The fedgov can and will lean on someone’s job if they suspect them of criminal activity, but Kalkines lets them know they don’t have to give up their 5th Amendment rights even though their job is being threatened.
It’s an important distinction to note that one can be both administratively looked at and criminally looked at; and makes the point so the employee knows where they stand. It’s a rock and a hard place, but something they have to balance out.
When Lerner took the Fifth, she announced she wasn’t going to answer what happened at work, and violated her job. She demonstrated lack of candor. She can be fired right there for not doing her job. Then she can plead the Fifth as a private citizen all she likes to avoid criminal prosecution.
It’s no different than if she worked at McDonalds and was asked to explain why she got caught pissing in the soft drink machine. Her boss can fire her right there, and she can plead the Fifth to the health inspector and the police about her attempts to poison the public. If she works at a big police station as a concessionaire and pisses in the cafeteria soft drink machine, she doesn’t get to plead the Fifth and just keep pissing in the Coke.