Silence Is Golden… But Not In Every Case

An MSPB cases illustrates how Fifth Amendment rights can apply (or not) to federal employees.

A case of removal decided by the Merit Systems Protection Board (MSPB) recently came to my attention. While not the most important decision the Board will make this year, it reminded me of something I’ve been teaching supervisors, managers, and union officials for many years. It occurred to me that FedSmith readers might not know about the details discussed in Luna v. Department of Homeland Security. Though unusual, they are worth knowing.

Sergio Luna was an Immigration Enforcement Agent who worked for the Department of Homeland Security (DHS). Way back in 2014 (the MSPB’s backlog has been well reported on this website) Mr. Luna was notified he was being investigated by DHS’s Office of Professional Responsibility (DPR). The DPR directed him to attend an interview concerning allegations of “disreputable associations” and “illicit activities.” The written directive to appear for the interview specified that honest answers to the OPR’s questions could not be used as evidence in a criminal case. 

As savvy readers already know, the notice likely also mentioned the employee’s right to union representation. Such investigative interviews are commonly known as Weingarten meetings. For those unfamiliar with the term, I wrote an article on the subject that was posted to this website years ago.

A short digression

Because his answers to questions might lead to or affect a DHS decision to discipline the employee, the union has a right to attend and represent both Mr. Luna’s interests and also the interests of others represented by that labor organization. If the employee isn’t a bargaining unit member (not necessarily a union member), representation would not be offered. 

Having someone in your corner while answering investigative questions posed by management officials is a right only accorded to employees who are among those a union represents. Most of those excluded are management officials. As a former Labor Relations Specialist, had I been interviewed regarding potential misconduct, a request for representation would have been rightfully denied.

The Board’s decision indicates that the meeting took place and that Mr. Luna was accompanied by a representative. That could only have been a union rep or someone designated by the union. If management were to allow anyone else to accompany the employee without the expressed consent of the union would be considered an “unfair labor practice”. 

“I’ll never tell”

According to the MSPB decision in his case, during the interview, Mr. Luna would not answer certain questions and eventually walked out of the interview along with his representative. For these two acts, the DHS proposed and effected his removal. He appealed that action to the MSPB. An administrative judge sustained his removal. Subsequently, he appealed that decision to the Board itself (two presidential appointees – a third has yet to be confirmed by the Senate) and lost there as well

Mr. Luna’s case is a cautionary tale. We have all learned about Miranda rights from television and movies. Advising you or me of those rights is a technical matter reserved for law enforcement officials. In a setting that is strictly administrative (which DHS affirmed in writing before the questions began), the employee has no right to remain silent when asked work-related questions. 

In the administrative world, commonly represented by your agency’s legal and HR offices, the worst that can happen to a civilian employee is removal. Thus, the people who trained me in these matters occasionally referred to removal as “economic capital punishment”. Your agency can’t take your freedom or your life, but can take your livelihood.

Do you really have a right to remain silent? 

I’m a firm believer in the Fifth Amendment and a suspect’s right to remain silent. While some think that “taking the 5th” or the “right against self-incrimination” is tantamount to an admission of guilt. Through a different lens, however, it’s an affirmation of the government’s obligation to prove its own case with its own evidence. 

In its decision to deny Mr. Luna’s appeal, the MSPB went into great detail regarding a federal employee’s 5th Amendment rights. They found that Mr. Luna received adequate written notice that his testimony could not be used against him in a criminal case. In its analysis, the Board went one step further, writing, “Essentially, the Government may not support a criminal proceeding with statements that it obtained from a public employee under threat of removal from office.”

The Board’s decision doesn’t tell us what suspected acts were being investigated. Accordingly, we’ll never know if he would have been fired had he confessed to doing something wrong as related to his job. Given the time that has elapsed since these events took place, any decisions regarding the criminality of his actions have likely been put to rest.

Willful acts and technicalities

In its essence, this is a technical case. People often assume it is nearly impossible to fire a federal employee due to the attendant processes and technicalities. In Sergio Luna v. Department of Homeland Security, it was the employee who fumbled and lost. Assuming his union representative was capable in that role, the decisions to avoid answering questions and then to leave the meeting were calculated.

As I’ve often advised supervisors and managers who attend seminars on these subjects, disciplinary actions concern willful acts or negligence. We know the rules of the workplace and violate them anyway. Anyone who tells a sexist joke knows the ice under their skates is thin. Likewise, when Mr. Luna refused to answer what must have been legitimate questions, he did so willfully. When he and his representative walked out of a meeting that Mr. Luna was assigned to attend during paid hours, it’s hard to imagine a more willful decision.

People do bad and stupid things and often pay the price for those acts. Mr. Luna made decisions that proved fatal to his continued employment at the DHS. He was found guilty. Given the MSPB’s decision and detailed analysis, it seems unlikely that any further appeal (likely to the US Court of Appeals for the Federal Circuit) would result in his reinstatement. Nevertheless, I wish him well. He has paid for his transgressions and is (hopefully) moving forward in his life. As the poet Alexander Pope put it, “To err is human; to forgive, divine.”

About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to