Accountability: It Usually Starts With an Investigation
Accountability: It Usually Starts With an Investigation
By Debra Roth, SEA General Counsel
From the December 2013 ACTION Newsletter
I've decided to begin my first column where my predecessor, the late Bill Bransford, left off. From reading the past year of his General Counsel columns, you can see he was thinking about a trend that bothered him and me. Bill was becoming increasingly concerned by the use of federal workers as easy targets for public scrutiny in a media or congressionally made "scandal." In the past few years, the heightened scrutiny and accompanying accountability became focused on career senior executives, good targets because they represent big enough fish at which everyone can point the finger of blame.
Bill and I knew from our own law practice how often the assumption and call for blame was rooted in political convenience, biased perceptions, and the inability of the individual career executive to change the public dialogue about the merits of the "scandal."
But as the title of this column suggests, Bill and I both knew that often the placement of blame was due in part to the individual's poor handling of the investigation. We'd lament: "if only he'd had an attorney when he went into the interview...." So I've decided to use my first column to offer some guidance, advice, and insight into the investigative process which I hope can be used to minimize your risk of becoming the scapegoat if the next scandal is laid at your doorstep.
Most of the current "scandals" are rooted in the results of an Office of Inspector General (OIG) investigation. The reality is that subjects of an OIG investigation have limited rights. Do you have a right to see the complaint? No. Do you have the right to ask who made the allegations against you? No – and don't ask. IG's tend to be suspicious about why the accused wants to know who made the complaint. They think your asking for the identity of the complainant will lead to you retaliating against the employee for making the complaint. Before you know it, the OIG's investigation is expanded to determine whether you've engaged in an act of reprisal.
Although you do not have a right to see the complaint or know the allegations against you, be patient. In any investigative process, you will be apprised of the allegations against you before and/or during the investigative interview, and in all likelihood, be able to figure out where the allegations came from.
The most common misconception which causes problems is the belief that "I haven't done anything wrong, thus the investigation will clear me." If you've been in federal service for a while, you should know how the system can drill down until it finds something, anything. The agency has a lot of time and resources for investigating an employee, and once invested, tries to find something for all that effort.
Be smart and become a good witness on your own behalf. Simply believing you did nothing wrong and explaining so to the investigator is not foolproof. In most instances, you will benefit from preparing for your interview to understand the underlying laws, rules and regulations governing your conduct. Most everyone can benefit from learning and employing good interview tactics that increase the quality of your answers, including how to best answer questions that acknowledge your own possible vulnerabilities.
Do you have a right to be represented by a private attorney when you are under investigation? Yes and no. While you don't have an actual legal "right" to an attorney unless you are under a criminal investigation, I have not encountered an IG office that will not allow you to be represented by an attorney and have the attorney with you in an interview regardless of whether the investigation is administrative or criminal in nature. As for investigations conducted by other internal agency entities, it varies on whether they will allow you to be represented by counsel.
Further, there is the belief that if you engage an attorney to represent you, it will signal your guilt when you're, in fact, innocent; OIG agents don't think that way. They view the act of getting an attorney to be smart. Knowing your rights and being well guided minimizes your risk in the investigation and they know it. Also, it ensures that they treat you fairly and with respect in the interview and investigative process. Often, those who are berated in OIG interviews (when counsel is not present) become frazzled and make poorly thought out statements, which are then used against them.
Most important is whether you are legally required to answer the questions of an OIG agent. The "duty to cooperate" in an investigation is only the duty to show up for the interview. If you are not specifically told that you are "required" to answer questions asked of you or face disciplinary action for the refusal to answer questions, then you are not legally required to answer the agent's questions. Being "required" to answer the OIG questions is known as a "compelled" interview. If you're not being compelled to answer questions by the OIG, then the interview is "voluntary." In a "voluntary" interview, you do not have to answer the agent's questions, and refusing to answer cannot be the basis for a disciplinary action.
The distinction between the "voluntary" versus "compelled" interview is quite important. When your interview is "voluntary" that means the OIG is running a criminal investigation of you, and you would surely want counsel before answering. In a "voluntary" interview, anything you say can be later used against you to bring criminal charges. My law firm always works to obtain a "compelled" OIG interview. When your answers are compelled by an agent of the U.S. Government, your responses cannot be used against you to bring criminal charges. Compelled interviews mean the OIG and agency can only act against you administratively.
That said, for senior executives, there may be instances in which answering questions in a voluntary interview is a reasonable decision, but seek counsel to assist you in making that very critical decision. Also, while you cannot be disciplined for refusing to answer questions in a voluntary interview, known as pleading your Fifth Amendment right to silence, often a senior executive who refuses to answer OIG questions in that situation is detailed out of his or her position pending the resolution of the investigation. Weighing the risks of answering or not answering questions in a voluntary interview requires much thought and analysis.
Today's environment is one of "scandals," scrutiny, and accountability. But I am a strong believer that knowing your rights, being educated about the OIG investigative process and tactics, and being well prepared for the actual interview, really will have a substantial impact on how you fare in the end.
And, above all else, if you don't already have it, get professional liability insurance. SEA worked hard to obtain legislation requiring agencies to reimburse you for up to half of the premium. It will pay for your legal representation when you need it. Check out Federal Employee Defense Services (www.fedsprotection.com), which SEA recommends.