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

By Dan Portnov

If you’re a federal employee or individual under investigation by an Office of Inspector General, waiting for an update or some sign of progress from the OIG can be agonizing. As we’ve written before,[1] OIG policies and procedures are often opaque, and the investigation proceeds at whatever pace the investigating agent desires.

Since it is never advisable for the possible target of the OIG investigation to contact OIG directly, your lawyer is your only source of news. But your lawyer should not sit back and wait for the investigators to make their conclusions. Instead, an experienced counsel will build rapport with the OIG investigator and advocate on your behalf throughout.

So, what are the points at which your lawyer can try to positively influence the OIG’s investigation?

1. Before any interview with the OIG.

Right from the outset, your lawyer is your best resource. As often happens, you will not have any idea that an investigation is brewing until agents come to your office (or your home) asking for an interview. Most of the time, they will say that the interview is voluntary, despite all appearances indicating otherwise. Too often, our clients agreed (before hiring us) to speak to them unrepresented; they almost uniformly tell us that they felt they had nothing to hide. This is a very bad idea.

Instead, call your union or your lawyer. (The former to get you a lawyer if you are a member with full rights.)

First, Your lawyer will determine whether you are a subject or witness. Are the alleged violations merely contraventions of agency policy, or are they possible criminal conduct? These are two questions your attorney will ask the agent(s) right off the bat that will shape your next set of decisions.

Second, your attorney will find out which warning, if any, you would receive (Kalkines, Garrity, etc.) and what that means for your employment and/or the potential that this case could result in a criminal referral. In some cases, declining an interview might lead to discipline—this is agency-specific. And like in all law-enforcement interrogation scenarios, absent some form of immunity, you can decline to answer specific questions by asserting your Fifth Amendment rights.

2. After the interview to monitor progress and further educate the investigators.

Your interview – assuming you participate in one – is not your only opportunity to give your side of the story. As the investigation continues and takes shape, your lawyer will check in with investigators to see where things stand. If more information is requested, your lawyer will graciously offer to provide it after consulting with you. If the scope or subject of the investigation shifts, your lawyer will try to understand exactly why and how.

More importantly, your lawyer will continue to advocate for you. OIG investigators are often aggressive with both the facts and law and may pursue borderline cases. Here, your lawyer may make an attorney proffer or submit a white paper on why the facts and law suggest that no misconduct occurred or, if it did, why it does not rise to the level of a crime.

3. Before any report comes out.

Many OIGs will give you the courtesy of notifying your lawyer prior to a public report being released. Investigators will either allow your lawyer to view a draft report or orally notify them of the reports conclusions and recommendation.

If the conclusions and recommendations are not favorable to you, your lawyer may, with permission from the OIG, submit comments or an response that will be appended to whatever report is published. This is likely your last chance to influence or dissuade OIG from its findings and recommendations. If the OIG remains steadfast, at least your narrative (or critique) is included with its public report.

If you are facing a criminal investigation, then the decision to put your position in writing is fraught with danger. You don’t necessarily want to preview your defense in the criminal case or say something that turns out not to be true down the road and then charged as obstruction of justice (for obstructing the OIG investigation).

4. After the report comes out.

Once a public report comes out, there is still much work to be done to minimize damage.

First, the OIG may have made a criminal referral to DOJ or the local US Attorney’s Office that is still under consideration. In that instance, the top priority is to convince prosecutors not to charge you with a crime. That may require multiple phone calls and face-to-face meetings with prosecutors and their supervisors.

If you are still employed by your federal agency, the OIG will undoubtedly forward the report to the agency’s Office of General Counsel (or its equivalent) for consideration in potential discipline. In certain instances OIG will even recommend specific discipline. That doesn’t mean that OGC has to heed OIG’s recommendation, or even its factual findings.

That’s where your counsel enters the picture: interfacing with a hopefully more receptive OGC in convincing it to forego or go lightly on the discipline. We have seen some scathing OIG reports and recommendation treated with minimal concern by the corresponding OGC – e.g. a recommendation to terminate a federal employee was virtually ignored, and the employee received a warning letter in her file.

The report may go to internal components of your agency, such as the Office of Professional Responsibility if you are a lawyer, for secondary discipline. Though its investigation is administrative, OPR may turn a finding of professional misconduct into a recommendation for employment discipline, and even a referral to your state bar.

At this point, your counsel will make calls to each agency component that received the OIG report to learn what its inquiry/investigation process might be and assess your ultimate exposure. You may be asked for another interview that, depending on other factors such as the criminal referral, might be inadvisable.[2] Nevertheless, dealing with OPR or the Office of Whistleblower on the administrative front will require careful advocacy from your counsel to minimize secondary consequences (and save your bar license!).

Finally, many individuals who are investigated aggressively by OIG come out of the experience feeling angry and wish to speak out. Public statements should be made with care, and your lawyer’s advice, if any investigation is ongoing. And, in the worst case – where the OIG may have violated certain of your rights, affirmative litigation is possible under the Privacy Act.[3] Each of these steps should be made with your lawyer’s input.

Conclusion

While OIG investigations do not come with rules of procedure, or much of a roadmap at all, there are still a number of opportunities for your lawyer to make an impact. You don’t have to sit back and wait, like Josef K., for the OIG to decide what it will do.

[1] Here, here, and here.

[2] There is some authority suggesting that agreeing to a voluntary OIG interview (under a Garrity warning) waives your 5th Amendment privilege against self-incrimination for later administrative interviews. A fascinating subject, but one best addressed in a future post.

[3] Full disclosure: we currently represent a federal employee in a Privacy Act lawsuit against a federal agency’s OIG.