Legal Insider: Defending federal employees in employment investigations

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent federal employees in federal agency investigations. Generally, most federal employment misconduct cases start as a result of a complaint by other federal employees alleging misconduct.

When a federal employee is notified that they are under investigation or suspects that they may be investigated regarding possible misconduct, it is very important to speak to a federal employment attorney for advice and possible representation.

Common Types of Federal Employee Investigations

While it is very difficult to cover each type of potential misconduct that a federal employee might be investigated for, some of the more frequent investigations involve:

• Misconduct in the Workplace
• Lack of Candor
• Misuse of a Government Computer/Internet
• Misuse of a Government Credit Card, Vehicle or Travel Card
• Discrimination or Harassment in the Workplace
• Time Card/Attendance Issues
• Off-Duty Criminal, Alcohol or Traffic Conduct
• Security Violations
• Insubordination
• Disrespectful Conduct in the Workplace

A Typical Federal Employee Investigation

The usual process for a federal employee investigation begins when the federal employee is notified (usually with very short notice or even the same day) that an investigator needs to speak with them about an issue. Investigators do not usually provide information about the nature of the complaint or investigative issues until the federal employee arrives at the meeting.

The investigator can be a supervisor, an agency investigator, an individual from human resources, or an agent assigned by the agency’s Office of Inspector General (OIG). Generally, a misconduct investigation starts with very little advice or information about what a federal employee should expect or what rights are available to them.

The Interview

In many cases a federal employee shows up for a scheduled meeting and an investigator just starts asking them questions. In other cases, the interviewer may start by asking the federal employee to sign a statement agreeing to be voluntarily interviewed and waiving their rights. This is the most usual method and offers little protection to a federal employee.

In other cases, a federal employee may be asked to sign what is known as a Kalkines notice, understanding that they are being ordered to speak to investigators under penalty of disciplinary action for not doing so. In such a case, many investigations can then lead to sustained federal employee discipline and potential appeals to the Merit Systems Protection Board (MSPB). Deciding when and how to provide testimony to agency investigators is a case-by-case decision. Each case varies, so obtaining legal advice is very important.

Federal Employee Interviews

An interview can last 30 minutes to many hours. Following the interview, many investigators summarize the testimony given by the federal employee and attempt to have them sign an official statement (or sworn declaration) about the information they provided. It is very important for a federal employee to carefully review the written summary. A federal employee will want to ensure that investigators do not insert their own characterizations (many times incorrect) of the statements made into a final written statement signed or sworn to by them.

Retain a Federal Employment Attorney for Advice or Representation

Having a federal employment lawyer represent or advise a federal employee during the investigation process is important. An attorney can advise and/or represent a federal employee before, after, and in many cases, during the investigative interview. It is important to have such counsel early because doing so can help prevent or mitigate potential disciplinary action later.

Furthermore, it can often help that an investigator knows that the federal employee is represented by counsel because they tend to follow the rules for doing so more carefully. Furthermore, should the issues involved turn potentially criminal in nature, it is important to be represented.

Contact Us

It is important for a federal employee to be represented by a federal employment attorney during investigative interviews and misconduct investigations. Berry & Berry, PLLC represents federal employees in these types of federal employment investigations and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation.