Federal Employee Investigations
Federal employee investigations can take many forms. For example, a federal employee may be subject to an investigation when complaints or accusations of misconduct arise. These investigations aim to determine a federal employee’s culpability for misconduct prior to issuing any disciplinary action. As such, it is important for federal employees to fully understand the investigative process and how to protect themselves from potential adverse actions that may arise.
If you are a federal employee facing an investigation, or believe that you may be subject to an investigation in the future, now is the time to prepare and protect your rights. Even if you are only a witness and not the subject of an investigation, fully understanding the investigative process is necessary to preserve your rights as a federal employee. Under any of these circumstances, an experienced federal employment lawyer can advise you on your rights and guide you through this complicated process.
Different Types of Investigations
Federal employee administrative investigations
The most common type of investigation that federal employees face are administrative investigations into alleged work-related misconduct. Administrative investigations are often initiated to address workplace-related misconduct. There are various types of federal employee investigations which can include the following:
- Internal Agency investigations for misconduct;
- Office of Inspector General (OIG) investigations for illegal or improper activities, including fraud;
- Equal Employment Opportunity (EEO) complaints for harassment or discrimination; or
- Office of Special Counsel (OSC) complaints for whistleblower retaliation, Hatch Act violations, or other prohibited personnel practices.
Potential Criminal Concerns
If a federal employee commits any criminal misconduct, particularly while on the job, they may be subject to both an administrative investigation and a criminal investigation. In cases where there could be potential criminal conduct, it is important to determine the type of investigation that is being conducted to best understand the rights available during the investigation itself, as well as the potential consequences that could arise.
Employee Rights in the Investigative Process
Federal employees that are investigated for misconduct have certain fundamental rights. This often includes the right to legal counsel during the investigative process. In some cases, a federal employee may also have the right to know the purpose of the investigation itself. Depending on the circumstances, a federal employee may have the right to refuse to answer questions about the investigation, as well as the right to remain silent if certain answers could be self-incriminating. These rights, however, are largely dependent on the type of investigative interview being carried out. In some instances, a federal employee may be legally required to answer an investigator’s questions or risk severe disciplinary action. As such, it is highly recommended that federal employees consult with experienced federal employment lawyers who can help them understand what rights are available to them under their specific circumstances.
Investigative Interviews
Most federal employees learn that they are part of an investigation when they are first contacted by an investigator looking to schedule an investigative interview. An investigative interview can be a stressful process, even for the most well-prepared interviewee. Each question you are asked is important, and your responses to the questions matter. As such, preparation is key, even for those individuals who do not believe that they have done anything wrong. It is important to speak to a federal employment lawyer before your investigative interview takes place. In many cases, a lawyer can represent you during the interview. In other cases, it is important to have a lawyer prepare you for your interview.
Interview Preparation
To prepare for an investigative interview, a lawyer guides federal employees in collecting their thoughts and articulating what they know and don’t know about a particular incident. The goal is to provide the investigator with accurate, truthful, and forthcoming responses to the interview questions. Even in matters where misconduct likely occurred, a federal employee should still be fully prepared and forthcoming during an investigative interview to avoid any additional consequences.
Types of Investigative Interviews
There are two types of investigative interviews for federal employees: compelled and voluntary. For voluntary interviews, federal employees can choose whether to participate. When an interview is compelled, however, then the federal employee must either go through the interview process or be subject to potentially severe discipline. As such, it is important for federal employees to understand what type of investigative interview they are facing.
At the start of the interview, or prior to it, the investigator will likely provide you a notice of your rights and a warning about the interview. The type of warning given can indicate the type of interview—voluntary or compelled—being faced.
Garrity and Kalkines Warnings
The first type of warning is known as a Garrity warning. A Garrity warning informs the federal employee that they are free to remain silent and refuse to answer questions and will not receive disciplinary action for doing so. When a Garrity warning is given, it signals that the federal employee is testifying voluntarily and may be subject to criminal prosecution based on the information collected during the interview. An interview preceded by a Garrity warning is therefore considered a voluntary interview.
The second type of warning is often referred to as a Kalkines warning. When an employee is given a Kalkines warning, the employee is informed that their statements may not be used against them in criminal court, and that they must provide truthful information during the interview or otherwise be subject to disciplinary action. An interview preceded by a Kalkines warning is therefore considered a compelled interview.
Unclear Warnings
Often, the warning you are given prior to an administrative interview is not clear. This can confuse federal employees about whether or not an individual is compelled to speak with investigators. Additionally, it is important to remember that an agency may use the information collected in compelled interviews to bring an adverse action against a federal employee, including an action to remove a federal employee from their employment. Our experienced attorneys assess these issues and interface on your behalf with the investigator to ensure you understand exactly what processes you are involved in, what your rights are, and any possible ramifications.
Issues to Consider During Investigations
As a federal employee who has found themselves to be part of an investigation, you should ask yourself the following questions to determine your understanding of the process ahead:
- Am I a witness to an investigation, or am I the subject of an investigation?
- Do I have the right to consult with an attorney?
- Do I have the right to know what is being investigated?
- Do I have to answer the investigator’s questions?
- Do I have to answer the questions immediately?
- Do my answers expose me to self-incrimination or disciplinary action?
It is important to know the answer to each of these questions, and many others, in order to best protect your rights as a federal employee in the investigation process. A federal employment attorney can help guide you through these questions to improve your understanding and best prepare you for the investigatory process ahead.
Contact Us
Understanding the administrative investigation process is critical to fully preserve the rights of a federal employee under investigation. The federal employment lawyers at Berry & Berry, PLLC have over 25 years of experience in successfully defending federal employees in internal, EEO, OIG, OSC, and other types of misconduct investigations which may arise. Contact us at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding an administrative investigation and other federal employment issues.
