OIG Investigations – Why Lawyers and Federal Employees Should Both Worry (Part III)

April 30, 2018

By Dan Portnov

We have written on several occasions[1] about OIG investigations on this blog, chiefly because a) their opacity creates a certain mystique, and b) we hope to minimize the chances that their targets underestimate the seriousness of what could later become a criminal investigation. The focus of this post is on OIG investigations involving a federal employee and a few key principles to keep in mind when suddenly confronted with an investigation.

In our (humblest) opinion, there are five things every federal employee should know about the OIG before its investigators show up to his or her office door:

  1. Stay calm and be quiet. The federal employee should never agree to an interview on the spot. Despite the intimidation of the OIG suddenly appearing and all of the ways in which the investigators can subtly insist that the employee should speak with them immediately, the employee should attempt to contact counsel or their union representative before agreeing to speak with investigators.
  2. Don’t assume that the investigation is “no big deal.” The investigation could be about anything. The core mandate of each OIG – there are separate offices in 73 federal agencies/departments – is to combat fraud, waste and abuse. This mandate is incredibly broad, ranging from egregious criminal conduct such as trading in restricted securities from a work computer to mundane violations of internal policy, such as having a romantic affair with a subordinate. Once its investigation commences, OIG is free to “follow the evidence” and change or broaden the scope of its inquiry.
  3. Gather basic information. Two immediate questions that should be asked of OIG: what are the potential charges and is the employee a subject? The third key question is whether the interview compelled or voluntary. This matters because it will determine what warnings the OIG investigators will give the employee. There are two main types of warnings—and they are important:
  • The Kalkines Developed from Kalkines v. United States,[2] this warning compels a federal employee to respond to investigative questions or face discipline, including dismissal. However, anything the employee says following the Kalkines warning may not be used in a criminal prosecution. Due to its compulsory nature being at odds with the 5th Amendment, the Kalkines warning is given after the investigator has spoken with the relevant criminal prosecutor and the latter has indicated an unwillingness to prosecute the employee.Although the risk of self-incrimination has been obviated under Kalkines, the employee may still be prosecuted if he or she makes false statements. More importantly, the employee’s answers will be used in determining whether discipline is appropriate.
  • The Garrity/Beckwith warning (sometimes confusingly called the “Reverse Garrity”). Developed from Beckwith v. United States[3] and Garrity v. New Jersey,[4] this warning is given prior to a voluntary interview. The Garrity/Beckwith warning advises an employee that the interview is voluntary and he or she may remain silent in response to any question, but that the evidentiary value of their silence may be considered in any subsequent administrative proceeding. Anything the employee says following this warning may be used against them in criminal or administrative proceedings.

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  1. The union can be a resource. If the department or agency has a union, such as the American Federation of Government Employees or National Treasury Employees Union this can be a great resource during an OIG investigation. [5] The union will typically assign a representative or steward to counsel the employee on their rights, the investigative process, and potentially negotiate the terms of interview and resolution. The union’s leadership and attorneys are also a font of institutional knowledge – usually keeping some kind of log of all disciplinary results and the attendant mitigating and aggravating circumstances of each.It is incumbent upon the employee to request the presence of their union rep at an investigatory interview (also known as exercising Weingarten rights).[6]But… not all jurisdictions recognize the employee-union representative privilege so the employee should take great care in divulging details to their representative. If the employee has retained counsel, he or she should notify and heed advice of counsel prior to any communication with the union.
  2. Leave email and browsing history untouched. The OIG has almost certainly reviewed the employee’s work e-mails and browsing history prior to “surfacing” – e. making the investigation known to the employee. The employee should not delete e-mails, files, and Internet history or contact other individuals to discuss the perceived subject matter of the investigation. These activities are futile and even worse; indicate consciousness of guilt or an attempt to obstruct the OIG investigation. That’s a federal crime.

In conclusion, an OIG investigation is a serious matter with potential disciplinary and criminal implications for federal employees. The above five principles should, at the very least, help individuals suddenly faced with an investigation keep their composure and preserve their rights.

[1] Here, here, here and here.

[2] 473 F.2d 1391 (1973).

[3] 425 U.S. 341 (1976).

[4] 385 U.S. 493 (1967). Garrity involved New Jersey police officers being investigated by the state attorney general. Garrity rights are the state investigation equivalent of Kalkines and are used interchangeably to refer to compulsory administrative interviews.

[5] The one catch is that the employee must join the union in order to take full advantage.

[6] As articulated by the Supreme Court in NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975).

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