At Shaw Bransford & Roth, we have spent decades assisting federal employees navigating the often treacherous process of an administrative investigation. Whether you have been identified as a responsible management official in an EEO matter, or whether you are the subject of an Office of the Inspector General investigation, we can guide you through the process.

Regardless of the reason you are being questioned, or who will conduct the interview, it is vitally important for you to understand the process you are in, your rights in that process, and how to prepare for your investigative interview.

The team at Shaw Bransford & Roth can help you answer important questions like:

• What are your rights?

• Do you have to answer the investigator’s questions?

• Do you have to answer immediately?

• Are you a witness or a subject?

• Do you have the right to consult with an attorney?

• Do you have the right to know what is being investigated?

Employee Rights

As a federal employee, you are generally required to cooperate in agency investigations. However, as an individual afforded rights under the Fifth Amendment to the U.S. Constitution, you are protected against self-incrimination in criminal proceedings, and therefore cannot be compelled to provide testimony in a criminal investigation which could subject you to criminal prosecution. As a federal employee confronting a request by an investigator, determining whether there is the possibility of criminal prosecution stemming from an investigation, is critically important to determine before you answer questions.

In most instances, when you are contacted by an investigator, you have the right to request time to consult with an attorney or representative of your choice to understand your rights and obligations. We can then step in, contact the investigator, and determine the nature of the investigation, and provide you with advice on how to proceed. While you may not have a right to have an attorney or representative present with you during the interview, we can still determine your rights and explain those rights to you, so you are prepared going into the interview.

The Investigative Interview

Is the interview voluntary or compelled?

For a federal employee facing an investigation, there are two opposing principles at work which you have to navigate. As a federal employee, you are required as part of your employment the federal government to provide information requested in an investigation. If you do not participate in an investigation when directed, you can be subjected to discipline by your employing agency, including termination from federal service. This requirement to participate, however, is balanced against your Constitutionally protected right under the Fifth Amendment, against self-incrimination.

How do you tell the difference between a voluntary or compelled interview?

At the start of the interview, or prior to it, the investigator will give you a notice of your rights and a warning about the interview. There are two kinds of warnings, based on two court cases which determined a federal employee’s rights in an investigative interview.

Garrity Warning

A Garrity warning derives from the case of Garrity v. New Jersey, 385 U.S. 493 (1967). In that case, police officers who were engaged in a traffic ticket fixing scheme were compelled to provide testimony during an investigative interview, and were then criminally prosecuted using the information provided during the investigation. Holding the investigatory interviews were compelled in violation of the officers’ Fifth Amendment rights (because the police officers were told they would be terminated if they failed to answer questions), the Supreme Court overturned the convictions. Based on the principles in the Garrity case, a Garrity warning, when given during an investigatory interview to a federal employee, permits the employee to freely refuse to answer questions, and does not permit the employer to bring an adverse action against the employee for failing to answer questions. When the Garrity warning is given, it signals the employee is testifying voluntarily, and can be subject to criminal prosecution based on the information collected during the interview.

Kalkines Warning

A Kalkines warning is the opposite of a Garrity warning. The warning comes from a Court of Federal Claims case entitled Kalkines v. United States, 473 F.2d 1391 (Fed. Cir. 1973). When an employee is given a Kalkines warning, the employee is informed their statements may not be used against them in criminal court, and that they must provide truthful information during the interview, or they can be subject to termination. This is considered a compelled interview. It is important to remember that although the employee’s statements cannot be used to criminally prosecute the employee, the agency may use the information collected from the employee to bring an adverse action against the employee, including an action to separate the employee from federal service for cause. Usually when an investigator gives a Kalkines warning to an employee, there is either no indication from the subject matter of the investigation that the employee could be subjected to criminal liability for their actions, or the investigator has received a declination from the U.S. attorneys’ office after consulting about the case.

Often, the warning you are given prior to an administrative interview is not clear. Our experienced attorneys assess the warning and interface on your behalf with the investigator to ensure you understand exactly what process you are involved in, what your rights are, and any possible ramifications.

Interview Preparation

An investigative interview is stressful. Each question you are asked is important. Your response to the questions matters. Even for those individuals who do not believe they have done anything wrong, preparation is key. To prepare for an investigative interview, we help employees ascertain the state of their own memory about an incident, and guide employees in collecting their thoughts and articulating what they know and don’t know about a particular incident, with the goal of providing the investigator with accurate, truthful, fulsome responses to interview questions.