Federal Employee Rights in OIG Investigations

By John V. Berry, www.berrylegal.com

We often represent federal employees in investigations before the Officeof Inspector General (OIG) of their federal agency. When a federal employee is under investigation (or going to be interviewed) by their respective OIG it is important for them to be aware of their legal rights, options and best plan of action for any potential legal defense. This article covers many of the issues that arise when a federal employee is contacted by their federal agency’s OIG.

What is the OIG?

Each OIG was established under the Inspector General Act of 1978. These OIG offices are authorized to carry out administrative investigations and audits to prevent and detect fraud and abuse in a federal agency’s programs and operations. Through its investigative findings and recommendations an OIG performs these duties. Each OIG is lead by an Inspector General for that agency and federal law enforcement agents tasked with conducting investigations. Each OIG is normally staffed by federal law enforcement officers and attorneys, along with other support personnel.

What does the OIG Do?

The OIG for a federal agency is tasked with investigating complaints or allegations of wrongdoing or misconduct by agency employees or contractors that involve or give rise to fraud, waste or abuse. The OIG also conducts audits of agency programs. The OIG employs investigators and other professionals to conduct these investigations by obtaining documentation, conducting interviews and making recommendations.  An OIG, as part of their duties, is often tasked with conducting interviews of federal employees.

Such investigations are common in the case of matters involving alleged federal employee misconduct. These can take the shape of normal investigative interviews, with written statements being taken, or video or audio-based statements which are recorded.  When an OIG investigation is complete, an OIG typically produces a report, which likely will include recommendations about the matter under investigation.  Recommendations can lead to employee discipline, along with other proposed remedies.

What Rights Do Federal Employees Have When Contacted by the OIG? 

When faced with an OIG investigation there are varying rights available to a federal employee depending on their status.  For instance, federal employees that are members of bargaining units (federal sector unions) may have more rights than the average federal employee when it comes to investigations. NASA v. FLRA, 527 U.S. 229 (1999) (OIG investigator is a representative of Agency when conducting employee investigation). It can be the case that a federal sector union has obtained additional rights for federal employees in connection with investigative interviews and investigations which may apply to their investigation.

For most federal employees, however, the process is more or less straightforward.  An employee will normally be contacted by an agent of their OIG when an interview is sought. The individual may or may not be provided with information about the purpose of the interview (usually not).  In some cases, an OIG agent may attempt to stop by unannounced to attempt to quickly gather evidence.

Once a federal employee arrives at the interview, the most normal course of action is that an OIG agent will just start asking questions about an incident under review without providing much information or the background about the investigation.  In such cases, it is important for a federal employee to be aware of their rights in connection with an OIG investigation.  Typically, there are two kinds of interviews, voluntary and required.  There are implications for both types of interviews. A voluntary interview typically provides the least number of rights.  In the alternative, an interview that is required or forced often does.

Voluntary OIG Interviews

In a voluntary interview, any information or statements that are provided to an OIG agent can be used against the federal employee should a criminal issue arise. It is more common for the OIG agent to either just start his or her questioning or to provide a federal employee a statement to sign indicating that the interview is voluntary and that they can leave at any time. For this purpose, many OIG agents provide “Garrity” warnings which state this.  These types of statements are then signed by the federal employee.

One of the major problems in this type of situation is that the federal employee, if unrepresented, generally has little idea about the terms of the interview and the notice they are signing and what it all means. Most federal employees tend to be frightened at the time and want to cooperate as completely as possible, even to their own detriment, in order for the issues to go away. Keep in mind if the interview is voluntary, a federal employee can usually end the interview at any time.

Required OIG Interviews

In the context of a required interview, the employee is usually given what is known as a “Kalkines” statement to sign which provides that they have been ordered to provide information (give a statement) to OIG investigators but that such information will not be used against the employee in a criminal case so long as they are truthful.  The information can still be used against them in an administrative (employment) matter, but some criminal protections are afforded through Kalkines.  Most often OIG agents are reluctant to provide Kalkines statements to sign because it requires them to get permission before providing one.

Typically, for a Kalkines notice of warning to be issued by OIG agents, they will have received permission or a criminal declination from a local prosecutor before offering that to an employee. Depending on the type of interview, we often ask investigators to provide Kalkines notices. This is not always requested, but something that should be discussed with counsel.  It is important, prior to an OIG interview, for a federal employee to discuss a pending interview with an attorney to determine the best options in such a case.

It is also often the case that an attorney can represent a federal employee during an investigative interview.  Having counsel present tends to cause the investigation to go more smoothly and for the issues and terms of the interview to be spelled out.  Furthermore, having counsel present can often provide piece of mind to a federal employee who is under a lot of stress related to such an investigation.

Duration and Other Consideration in OIG Interviews 

The duration of an OIG interview can range from 30 minutes to multiple days.  It just depends on the individual facts of the case.  For some OIGs, employees requesting legal or union representation are entitled to a reasonable amount of time to arrange for this representation and/or preparation for the interview.  Preparation for an OIG is often important because in most cases a federal employee has at least a general idea as to what the topic of the interview may be and therefore preparation and thinking through the process and facts can truly help when an interview is pending.

Closing of Interview

Towards the end of an OIG interview, an OIG agent will generally ask that the federal employee not speak to others involved (or anyone but their attorney or union representative) in the case about their statement.  Following an OIG interview, a federal employee may be asked to sign their statements and/or be given a request for a followup interview if needed.

Conclusion

When a federal employee or former federal employee needs assistance in connection with an OIG investigation, please contact our office. We can be contact at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page as well.

 

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