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
Our law firm defends federal employees in investigations and disciplinary actions. Almost all federal employee disciplinary cases start with a misconduct investigation. When a federal employee is subject to an investigation, it is essential to retain a federal employee lawyer as soon as possible.
Issues Commonly Investigated by Agencies
While anything can prompt an investigation by a federal agency, some of the more common issues that trigger an investigation include the following:
- Absence Without Leave
- General Misconduct at Work
- Lack of Candor or Integrity Issues
- Misuse of a Government Computer/Internet/Fax
- Misuse of a Government Credit Card, Vehicle or Travel Card
- Public Complaints
- Sexual Harassment or Discrimination in the Workplace
- Time Card/Attendance Issues
- Off-Duty Criminal, Alcohol / Traffic Conduct
- Security Violations
- Insubordination
- Disrespectful Conduct in the Workplace
How Federal Employee Investigations Usually Start
Federal employee investigations usually start when the individual is called by an investigator to set up an interview. Investigators almost never provide specific information about the nature of an investigation until the federal employee arrives at the meeting.
The type of investigator assigned to the case can vary. 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). Federal employees usually start out with very little information when the process starts.
Investigative Interviews
In many instances, a federal employee will attend the scheduled meeting and an investigator will just start asking them questions. This can be problematic if the individual doesn’t have legal counsel. In some cases, however, the interviewer may start by asking the federal employee to sign a statement agreeing to be voluntarily interviewed and waiving all of their rights. This is the most common 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 (example: termination) 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 whether to provide testimony to agency investigators is a fact-based decision which should be made with the advice of a federal employee lawyer.
What Else Happens During a Federal Employee Interview
Federal employee interviews range in length from an hour to multiple days. After the interview, many investigators summarize the testimony given by the federal employee and attempt to have them sign an official statement about the information they provided. It is very important for a federal employee to carefully review the written summary before signing any document. A federal employee will want to ensure that investigators do not insert their own characterizations of the testimony given. It is critical to have counsel review such a statement.
Hire a Federal Employee Lawyer for Advice or Representation
Having a federal employee lawyer represent and advise a federal employee during the investigation process is critical. A lawyer can advise and/or represent a federal employee before, after, and in many cases, during the investigative interview. Having legal representation early can help avoid problems later in the process.
Additionally, having an attorney can help because the investigator knows that the federal employee is represented by counsel. While an investigator may be more aggressive with an unrepresented individual, they may be more reasonable when the individual has a lawyer. Furthermore, should the investigative issues involved turn potentially criminal in nature, it is very important to be represented.
If Disciplinary Action Occurs, Retained Counsel Will Be Ready
One other important concern is that if the investigation ultimately results in disciplinary action, things can move fast. Many agencies provide only 7 to 10 days to respond to proposed disciplinary actions. As a result, having a federal employee lawyer in place can help immensely should discipline be proposed.
Contact Us
It is important for a federal employee to be represented by a federal employee attorney during investigative interviews and misconduct investigations. Berry & Berry, PLLC represents federal employees in these types of federal employment investigations and disciplinary actions. We can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation.
