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 attorneys 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 with 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 simply for your refusal to answer questions that have a nexus to your employment. This requirement to answer questions, 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 should 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 they 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 criminal 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 if doing so would cause incrimination in a potential crime. When the Garrity warning is given, it signals the employee is testifying “voluntarily,” meaning the employee has a 5th Amendment right to silence because the employee may be subject to criminal prosecution based on the information they provided 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 simply for refusing to answer questions. This is considered a “compelled” interview. 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 employment 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 underlying conduct, or the investigator has received a declination of criminal prosecution 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 the 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.

If you are contacted for an interview, it is important to promptly obtain legal advice. Our attorneys can offer insight on what to expect in the interview based on which investigative body is conducting it. Notably, as a federal employee, you may be compelled to attend an interview being conducted by a special agent with a badge and credentials. The nature of being questioned by law enforcement lends itself to a naturally stressful situation. Our attorneys have experience representing clients in such interviews, and will help you navigate them.  

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. We work with you in advance of the interview so that you can walk into the interview confident and able to relay your full accounting of the facts.

We also understand and appreciate that each client has different goals. If attending an investigative interview is not feasible for you, we will work with you to explore alternative options to attending an interview.

Types of Investigations

At Shaw Bransford & Roth, our attorneys are experienced at representing federal employees in a wide range of investigations. We defend our clients in OIG investigations, management inquiries, EEO investigations, and investigations conducted by numerous administrative bodies, including but not limited to the following:

OIG Investigations

Offices of Inspector General (OIGs) across the federal government are charged with investigating and auditing the programs and operations in their respective agencies. As a part of its functions, OIGs may receive and investigate complaints that allege: violations of law, rules or regulations; mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to the public health and safety. OIG investigations should be taken seriously, as they can be either administrative or criminal in nature.

As mentioned above, the type of warning you receive from the OIG, whether it be a Kalkines warning or Garrity warning, will inform you of the kind of investigation being conducted. If the investigation is administrative, meaning that you are required to cooperate due to the very nature of your federal employment, then we will work with you to learn more about the allegations and prepare you for the interview or work with you to pursue alternative options to attending an interview.

Internal Administrative Investigations

The number of investigative bodies in the federal government is numerous, and their jurisdiction varies based on the subject matter of the allegations under investigation. Informal investigations into allegations of employee misconduct may be investigated by human resources specialists or management figures in what are commonly referred to as “management inquiries” or “fact finding investigations.” Complaints alleging violations one of the fourteen prohibited personnel practices (PPPs) may be investigated by the U.S. Office of Special Counsel (OSC), which has the statutory authority to investigate and administratively prosecute violations of the fourteen PPPs. Complaints alleging misconduct by federal law enforcement personnel may be investigated by the agency’s Internal Affairs Division (IAD). And some agencies have specific internal investigative bodies that investigate specific allegations, like the Department of Veterans Affairs’ Office of Accountability and Whistleblower Protection (OAWP), which investigates allegations of whistleblower reprisal.

Regardless of the nature of the allegations or the investigating office, our firm has 40 years of experience representing federal employees in government investigations. We will educate you on the specific legal process you are in, your role as a witness or subject in it, and your rights and obligations. We prepare you for the investigative interview.

EEO Investigations

After your employing agency receives an employee’s formal EEO complaint of discrimination or harassment, it will conduct an investigation, or contract out for investigation, into the allegations made in the EEO complaint. If you are a federal employee named as a responsible management official in a formal EEO complaint (the employee accused of the discriminatory act), you are required to cooperate with the government’s investigation by providing sworn testimony addressing the allegations of discrimination and harassment alleged against you.

At Shaw Bransford & Roth, we thoroughly prepare you for an interview and work with you to finalize a statement that provides an accurate, and fulsome articulation of your legitimate non-discriminatory reasons for the actions under investigation.

DOJ OPR Investigations

The Department of Justice’s Office of Professional Responsibility (OPR) investigates allegations of professional misconduct against DOJ attorneys, prosecutors, and immigration judges. The allegations investigated by OPR relate to the prosecutorial or judicial conduct of DOJ attorneys and judges. Many of OPR’s investigations involve complex legal and ethical issues involving criminal prosecutions, national security matters, civil litigation, and other areas of the law handled by DOJ.

OPR investigations should be taken very seriously. An OPR investigation may implicate your reputation, job, and professional licensing. OPR publicly releases summaries of its investigations concerning the complaints it receives. This includes whether the investigations resulted in findings of professional misconduct. DOJ OPR refers findings of professional misconduct against a DOJ attorney to DOJ’s Professional Misconduct Review Unit for possible disciplinary action. It also refers to state bar disciplinary authorities any findings of professional misconduct that implicate bar rules.

Our lawyers have a proven track record of successfully defending attorneys confronting disciplinary and ethical issues in the DOJ OPR investigative process. We help attorneys respond to allegations of misconduct, defend against state bar complaints and grievances, and address character and fitness concerns. We educate our government attorney clients about these complicated processes, and advocate on their behalf to have the complaint dismissed, minimize any potential disciplinary action, and, most importantly, protect their law license and livelihood. We understand, and are dedicated to providing strategic counsel and advocacy to help you navigate the process and obtain the best possible results.