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As a federal employee, it can be a scary thing to be contacted by an Office of Inspector General (OIG) investigator and told that you are under investigation. You probably won’t even be informed who has made a complaint against you or given any details about the allegations.
It is important to know your rights and what to expect, because federal employees are required to fully cooperate with an OIG investigation (although you can assert your Fifth Amendment right to refuse to provide information on the grounds that the information might be used against you in a future criminal proceeding). Subjects of OIG investigations have limited rights, but knowing them can make an enormous difference in the outcome of an investigation.
First, some preliminary notes on OIG investigators. Understand that there is never an “off-the-record” conversation with an OIG investigator. Assume that anything you say to the investigator is part of the investigation, because it is. Also, anything you voluntarily tell the investigator may be used as evidence against you in a subsequent civil or criminal proceeding. So you need to be very guarded in any conversations you have with the investigator in whatever setting, but particularly in those settings that are informal, such as email correspondence. Remember, the investigators are looking for something. This may sound obvious, but don’t assume they are lax fact-gatherers. From what I have seen, OIG investigators try as hard as they can to find something to pin on a subject of an investigation. Federal agencies have vast resources and invest a lot of time and money in IG investigations, and they want returns on that investment.
The Investigation: Your Rights
You do not have a right to know who has made allegations against you. However, it’s advisable to not ask the OIG investigator who filed the complaint, especially if you hold a supervisory position. The reason for this is that the investigator may conclude that you want to know the identity of the complainer in order to retaliate against him or her, which could potentially prejudice the investigator against you. This could lead to the investigator expanding the scope of the investigation to determine whether you have engaged in retaliation. This, in turn, could expose you to a complaint with the Office of Special Counsel or an Equal Employment Opportunity Commission (EEOC) complaint.
You also do not have the right to see the actual complaint. However, asking for a copy of the complaint or for some details on the specifics of the allegations against you is advisable, but the question is when to do so. Eventually, you will be apprised of the allegations against you. This will happen at the latest, during your investigatory interview. However, it would of course be helpful if you knew something about the allegations prior to said interview so that necessary preparations can be made. If an investigator refuses to provide any details about the allegations against you prior to your first investigatory interview—and, again, that is within an investigator’s power to do—you’ll have to do your best to figure out what the allegations are and who made them. If you have no idea, which is possible and does happen, you will certainly have an idea after your first investigatory interview. Then you can be better prepared for any follow-up interviews with the investigator.
While you don’t have a right to a private attorney while under investigation (unless you are under criminal investigation), most IG offices will not refuse a subject’s request to bring private counsel. It is advisable to hire an attorney if you are the subject of an investigation, particularly if you are under criminal investigation. Don’t concern yourself with the notion that an investigator may think that you are guilty if you retain private counsel or that you are somehow signaling your guilt or liability to an investigator by hiring an attorney. What is most important is minimizing your risk during the investigation and ensuring that you are treated fairly during the investigation, particularly during any investigatory interviews. IG investigators tend to “behave” themselves more during an interview which includes an attorney representing the subject of the interview.
As mentioned above, if you are under investigation and hold a supervisory position, you need to be mindful of accusations of retaliation. This is something an IG investigator will be looking for. Apart from that concern, you need to protect yourself from having an EEO or OSC complaint filed against you for retaliation stemming from the IG investigation.
For example, let’s say you are aware or can ascertain that you are under investigation following a complaint raised to the Agency IG by a female subordinate whose annual review you are about to complete. If this subordinate employee’s performance warrants a rating equal to or exceeding her past rating, there should be no issues in providing the rating.
However, what if you believe that this subordinate’s performance rating should be lower than her most recent one and held that belief prior to the investigation? Here you might run into a problem and it is advisable that you remove yourself from rating process altogether. Justified or not, a plaintiff’s employment attorney, or an IG investigator, will pounce on the lower rating. This is just one of dozens of examples of a scenario where someone under IG investigation could be exposed to retaliation allegations and/or complaints. The point is to be mindful of retaliation concerns the second you become aware of the identity of the individual whose complaints have resulted in an IG investigation.
So, the investigation is complete. What happens next? Generally, the IG will produce a report based upon relevant witness interviews, records, and any other evidence gathered. The report will be reviewed within OIG to ensure that it is fact-based and objective. It will then be provided to appropriate individuals, accompanied by recommendations as warranted, so that they may consider any appropriate corrective actions based on the results of the investigation. Corrective action could include disciplinary consequences, but the OIG does not make that decision, your chain of command does.
Being the subject of an OIG investigation is a serious matter not to be taken lightly. If you are a federal employee who is the subject of such an investigation, it is advisable to immediately contact an attorney.
Tyler K. Patterson, Esq. is an Associate in Tully Rinckey PLLC’s Binghamton office, where he focuses his practice on employment law, Investigations (IG and Internal), appellate law, and Title IX defense.