At Aaron L. Wiley Law, P.C., our federal internal investigation lawyers have many years of experience helping federal employees handle administrative investigations. These investigations can be stressful and confusing, but we walk you through each step. Whether you are named as a management official in an EEO complaint or are being investigated by an Office of Inspector General, we can help you understand what to expect and protect your interests.
No matter why you are being questioned or who is doing the interview, it is very important that you understand what kind of process you are in, what your rights are, and how to get ready for the interview.
What Are My Rights As An Employee?
As a federal employee, you usually have to cooperate with your agency’s investigation. But you still have personal rights. Under the Fifth Amendment, you do not have to answer questions in a criminal investigation if your answers could be used against you and lead to criminal charges. You cannot be forced to give self-incriminating testimony in a criminal case.
If you are a federal employee and an investigator asks to question you, it is very important to first find out whether the investigation could lead to criminal charges. You should know this before you answer any questions.
In most cases, if an investigator contacts you, you can ask for time to speak with a lawyer or another representative you choose before answering questions. This helps you understand your rights and what you are required to do. A lawyer can then contact the investigator, find out what the investigation is about, and advise you on the best next steps.
You may not always have the right to bring a lawyer or representative into the interview with you. But a lawyer can still review your situation ahead of time, explain your rights, and help you get ready so you know what to expect before the interview.
Are Investigative Interviews Compelled or Voluntary?
If you are a federal employee under investigation, you are dealing with two rules that can conflict with each other. On one hand, your job requires you to give information when your agency asks for it during an investigation. If you refuse to answer job-related questions when directed, your agency can discipline you, and you could even lose your job.
But this duty to answer questions is balanced by your Fifth Amendment right. You have a constitutional right not to answer questions if your answers could be used to accuse you of a crime.
How Can I Tell the Difference?
At the beginning of the interview, or maybe even before, the investigator should give you a notice that explains your rights and warns you about the interview. There are two different types of warnings that may be given, based on court cases that define a federal employee’s rights during an investigation interview.
What Is a Garrity Warning?
Garrity warnings come from a court case called Garrity v. New Jersey. In that case, police officers were forced to answer questions during an internal investigation about fixing traffic tickets. Later, prosecutors tried to use those answers against them in a criminal case. The court ruled that statements forced from employees like this cannot be used to prosecute them criminally.
The Supreme Court decided that the interviews were forced and violated the officers’ Fifth Amendment rights, because they were told they would lose their jobs if they refused to answer. Because of that, the Court threw out their criminal convictions.
Based on this particular case, a Garrity warning tells a federal employee that they can refuse to answer questions during an investigation if the answers could make them look guilty of a crime. If the employee refuses for that reason, the agency is not allowed to punish them just for staying silent.
When a Garrity warning is given, it means your answers are considered voluntary. You have the right to stay silent under the Fifth Amendment because what you say in the interview could lead to criminal charges.
What Is a Kalkines Warning?
A Kalkines warning is the opposite of a Garrity warning. It comes from a court case called Kalkines v. United States. When you are given a Kalkines warning, you are told that what you say cannot be used against you in a criminal case. Because of that protection, you are required to answer the investigator’s questions truthfully. If you refuse to answer, you can be disciplined or even fired. This type of interview is considered required, not voluntary.
Even though the employee’s statements can’t be used to charge them with a crime, the agency can still use what the employee says to take job action against them. That can include discipline or even firing them for cause.
Generally speaking, when an investigator gives an employee a Kalkines warning, it means one of two things: either the investigation does not appear to involve possible criminal charges, or the investigator has already checked with the U.S. Attorney’s Office and been told that criminal charges will not be filed.
Often, the warning you receive before an administrative interview is confusing or unclear. An experienced attorney can review the warning and speak with the investigator for you. They can explain what type of investigation this is, what your rights are, and what could happen next.
How Do I Prepare for the Interview?
An investigative interview can be very stressful. Every question matters, and your answers matter too. Even if you believe you did nothing wrong, it is still important to prepare ahead of time.
If you are asked to take part in an interview, you should try to get legal advice as soon as you can. A lawyer can explain what the interview will likely be like based on which agency is handling it. As a federal employee, you may be required to attend an interview with a special agent who has a badge and official credentials. Being questioned by law enforcement is naturally stressful. Our experienced Federal internal investigation lawyers have handled these interviews before and can help you get through the process.
To get ready for an investigative interview, we help employees review what they remember about the event and sort out their thoughts. We help you clearly explain what you know, what you don’t know, and what you are not sure about. We prepare with you before the interview so you can go in feeling more confident and ready to give a clear and complete explanation of the facts.
We know that every client has different needs and goals. If you are not able to attend an investigative interview, we can talk with you about other possible options instead of going to the interview.
Call Aaron L. Wiley Law, P.C.
At Aaron L. Wiley Law, P.C., our federal internal investigation lawyers have experience representing federal employees in many different types of investigations. We defend clients in Office of Inspector General investigations, management investigations, Equal Employment Opportunity investigations, and investigations handled by many other government administrative agencies.
If you are a federal employee facing an internal investigation, do not try to handle it alone. Get clear advice about your rights and your options before you answer questions. Call Aaron L. Wiley Law, P.C. at (254) 566-3860 or fill out the contact form on our website to speak with a federal internal investigation lawyer and get the guidance you need.