Legal Insider: Federal Employee Misconduct 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 Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

We often represent federal employees in federal agency misconduct investigations. The types of misconduct that a federal agency can investigate are too numerous to list here, but some of the most common types of misconduct involve:

• Time card and attendance issues
• Misuse of government computer and internet
• Misuse of government credit card, vehicle or travel card
• Allegations of discrimination or harassment
• Alleged dishonesty or lack of candor
• Allegations of off-duty criminal or traffic conduct
• Inappropriate promotions and selections cases

The Investigation Process

The usual process for a federal employee misconduct investigation begins when a federal employee is notified that an investigator needs to speak with the employee.

The alleged misconduct can be investigated by several types of investigators. The investigator can be a supervisor, someone from human resources, an agency investigator, an Inspector General agent, or another type of agency official or representative. There is usually short notice for the investigation and the investigator generally will want to conduct the interview fairly soon. Furthermore, the federal employee is usually never provided an explanation of his or her rights.

In many, if not most, cases, the interviewer immediately starts asking questions and expects answers to his or her questions without providing a statement of rights. In some cases, the interviewer may ask that the federal employee sign a statement agreeing to be voluntarily interviewed (often referred to as a Garrity warning) and waiving all of the employee’s rights.

In other cases, the federal employee may be asked to sign a Kalkines warning requiring that the employee acknowledge that he or she is being ordered to speak to investigators under penalty of disciplinary action.

While circumstances vary, it is usually preferable for a federal employee to be ordered to provide a statement as some protections may attach, versus providing a voluntary statement where there are no protections. Federal agencies generally prefer that voluntary statements be given.

In cases where a federal employee is not ordered to provide a statement, but voluntarily provides one, no protections to the employee’s statement usually apply. As a result, it is important and wise for the federal employee involved in a misconduct investigation to have legal counsel to advise the employee prior to the interview.

The Investigation Format

Generally, the most common scenario for a federal employee misconduct investigation involves the federal employee being interviewed by one or, more often, two investigators. The duration of these types of investigations vary depending on the issues under review, but generally last between one and three hours. However, we have represented federal employees during longer interviews.

Following the interview, many investigators summarize the employee statement and attempt to have the employee sign it for the record.

It is important to ensure that the investigator does not insert his or her own version or characterization of the employee’s verbal statement into a final and inaccurate written statement signed by the employee. All too often a federal employee makes a statement to an investigator that is taken out of context in the written summation, which is then signed by the employee.

How to Handle the Investigation

It is very important for federal employees to treat any misconduct investigation seriously. It is also important to seek advice early because doing so can help prevent or mitigate potential subsequent disciplinary action. Furthermore, it can often help when an investigator knows that you are represented by legal counsel.

In our experience, investigators tend to follow the rules regarding investigations more closely when an individual is represented by legal counsel. Additionally, should the issues involved turn potentially criminal in nature it is important to be represented before making statements about conduct which can lead to criminal issues.

If you need assistance with an employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.