Why an OIG Investigation Seems (and Actually Is) Unfair to Government Employees

August 12, 2020

By Sara Kropf

Many—perhaps most—of my clients who are targets of Office of Inspector General (OIG) investigations think the process is not fair.

They are right.

In an OIG investigation, the same entity is the investigator, the prosecutor, the judge, and the jury. There’s no separation of power. There’s no right to appeal. Once the findings are made, you are stuck with them forever.

Let’s start with the basics: There is nothing illegal about this system. Congress passed the Inspector General Act of 1978 (“IG Act”). Title 5a United States Code § 2 establishes OIGs “to conduct and supervise audits and investigations relating to the programs and operations” of federal agencies. Section 3(d)(1)(B) authorizes an Inspector General “to appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations.”

Then, § 3(a) prohibits an agency head (or deputy head) from impeding an OIG’s investigation in any way, permitting OIGs to act without agency oversight:

Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.

This isn’t all bad. The purpose of OIGs is to investigate waste, fraud, and abuse within agencies, including by the head of an agency. If an Inspector General reported to the agency head, then it could not effectively investigate the agency head or her deputies. (I’ve written before about President Trump’s obviously political—but also perfectly legal—firing of the State Department’s Inspector General when he was investigating the Secretary of State.)

The reason an OIG feels so unfair to its targets (our clients) is that it is a self-contained system and there is no neutral arbiter.

Contrast an OIG investigation to a federal criminal investigation. TL;DR OIG investigations have fewer procedural protections for a target.

Here’s a quick summary chart:

[pdf id=5977]

[pdf id=6011]

Who Investigates Wrongdoing?

In an OIG investigation, an OIG agent will be assigned to a matter and will investigate it, conducting interviews and reviewing documents. An attorney overseeing the investigation (sometimes called an “attorney advisor”) will attend key interviews.

In a criminal investigation, an FBI agent will be assigned to a matter and will investigate it, conducting interviews and reviewing documents. An Assistant United States Attorney will attend key interviews.

It’s worth noting that a criminal investigation may be investigated by agents from agencies other than the FBI, including OIG agents. But, the primary investigative arm for federal criminal cases is the FBI, which is within the Department of Justice.

So far, so good.

Who Oversees an Investigation?

In an OIG investigation, the agents are generally running the show. In our experience, the attorney advisor has a minimal role, though that does vary widely across agencies and cases. The more serious the case, the bigger the role of the attorney advisor will be.

In a criminal investigation, the FBI agents operate under the purview of the AUSA. There is variation across cases, of course, but in our experience, the AUSA is playing a more hands-on role throughout the whole case. There are significant procedural rules that have to be followed to preserve evidence properly to use at trial, so the oversight is more concentrated.

Who Decides If There is a Violation of Law/Regulations?

In an OIG investigation, the agent along with the attorney advisor will decide if there is a violation. That all happens as part of an internal process. There is a process within each OIG, but the decision is made by those within the OIG only. The same people who investigate you and decide what evidence to gather then get to decide whether the evidence they gathered is enough to conclude that you did something wrong. (Can you see the problem?)

In a criminal case, there is no finding of guilt until you have a trial by jury. That jury must be overseen by a judge. The jury is made up of local citizens. The judge oversees the process is neutral and from a different branch of government from the prosecutor.

What Kind of Discovery Does the Target Receive During the Matter?

In an OIG investigation, nothing. Nada. The OIG does not provide transcripts of witness interviews or agent summaries of witness statements as a matter of course. It does not provide the documents on which the conclusion is based. There is no right to receive exculpatory material before the OIG reaches its conclusion.

In a criminal investigation, there are statutory, constitutional, and rule-based rights to discovery. Under Rule 16, the defendant gets a copy of all of the government’s evidence. Under Brady v. Maryland, a defendant gets a copy of all exculpatory evidence. Under the Jencks Act, a defendant gets a copy of all verbatim witness statements.

What Kind of Hearing Is There Before there is a Finding of a Violation?

In an OIG investigation, there is no hearing. None. I’ve had cases where I’ve asked to come to talk to the agent and attorney advisor in person to give a proffer—basically, to tell my client’s side before they reach a decision. And that is sometimes declined. Some agencies will hear me out; others won’t. But there is no hearing or proceeding and no opportunity to cross-examine witnesses.

In a criminal case, you get a trial with a judge to oversee it and a jury to hear the evidence. Your lawyer can offer the testimony of witnesses, can cross-examine the government’s witnesses, and can offer documents into evidence to support your defense. The trial may last a day or a week or a month.

What Is the Burden of Proof?

In an OIG investigation, there’s no defined burden of proof. It is generally understood to be a “preponderance” standard—meaning that it must be more likely than not that there was a violation. This isn’t an absurd standard. After all, it’s the same as in a civil case, and you can’t be thrown in jail based on a finding of wrongdoing by an OIG. But it’s troubling that there’s not one defined standard of proof for OIGs across all agencies.

The real problem here is not the standard applied, but that there’s no right for the target of the investigation to challenge the evidence or the finding of wrongdoing. A burden of proof, standing alone, is completely meaningless when the other side can’t challenge the evidence and when there is no neutral arbiter to decide whether the OIG met the burden.

In a criminal case, the government had to prove its case beyond a reasonable doubt. The high burden makes sense given that it could result in a loss of freedom.

Are There Rules of Evidence to Exclude Certain Kinds of Evidence?

In an OIG investigation, no, there are no rules of evidence. An OIG should look askance at hearsay evidence or any evidence that is not based on personal knowledge, but no rule bars its consideration.

In a criminal trial, the federal rules of evidence apply. These rules prevent the jury from deciding the case based on hearsay, or prior bad acts of the defendant, or irrelevant matters. Don’t be too reassured by the existence of evidence rules, though. For example, the exceptions to the hearsay rule often swallow the rule. But at least there is some standard by which evidence is considered reliable, and the standard is not simply “whether the agent thinks it is reliable.”

Can You Appeal the Finding?

In an OIG investigation, there is no right of appeal. There’s nowhere to appeal it. I have tried to informally “appeal” a finding of wrongdoing to the Inspector General but have had luck only one time even getting a meeting with the Inspector General, and–no surprise, the IG did not reverse the decision. Once the OIG decides you did something wrong, then that’s the final decision.

In a criminal case, there is a right to appeal a guilty verdict in a few ways. First, although not technically an appeal, you can make a motion for judgment of acquittal (an “MJOA,” in the parlance) to the trial court judge. Second, you can file a motion for a new trial if there’s a guilty verdict. Third, a defendant has a right to appeal the conviction to a court of appeals.

In Sum

Given that an OIG investigation lacks so many of the procedural protections given to defendants in criminal cases, it’s hard not to conclude that OIG investigations are fundamentally unfair. Yes, the stakes are lower than in a criminal case but that shouldn’t mean due process is thrown to the side.

Published by Kropf Moseley

Whether you need to take a case to trial, negotiate a resolution without ever setting foot in the courtroom, or navigate a complex public relations problem, we can help. View all posts by Kropf Moseley.