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What is an administrative
investigation?
Any agency investigation
that is not conducted for the purpose of law enforcement or criminal prosecution.
... What is the purpose
of an administrative investigation
Gather the facts. Most
generally, the purpose of an administrative investigation is to provide
a factual basis for choosing a course of action.An
investigation is most commonly undertaken when there is some prospect of
legal action to follow, as in the case of an EEO complaint or an appeal
to the Merit Systems Protection Board.
In the case of a pre-action
investigation, the purpose is to support the decision to take or not take
disciplinary action.Accurate information
serves the valid interests of the manager and the subject employee.
The goal is to impartially
gather and compile all relevant evidence.Some
reports of investigation are intended to include a recommendation for action.
Establish credibility.Good investigation also establishes a careful decisional process to support the validity of the management decision.Many good and correct management decisions have been undermined at trial by evidence of biased, sloppy, or incomplete investigation.The hearing officer, judge, or jury may believe that if the investigation was poor, the resulting decision must also be poor.Also vice versa.
What
legal rights does the agency have to perform investigations?
Right to manage workforce and take appropriate disciplinary action implicit in Civil Service Reform Act. Requirement to investigate EEO complaints – 29 C.F.R. § 1614.108(b) requires that “the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.” Inspectors General Act.
What legal rights does an investigator have in
collecting information?
Cooperation.The agency and the investigator have a right to full cooperation from all federal employees.Refusal to cooperate is grounds for action, including removal. Weston v. HUD, 724 2d 943 (Fed. Cir. 1983).The MSPB has characterized Weston as holding that, “under Board and Federal Circuit precedent, an employee may be removed solely for remaining silent in response to an inquiry if the employee is adequately informed that he or she is subject to discharge for not answering questions and that any replies and their fruits cannot be employed in a criminal case.See Weston v. Department of Housing & Urban Development, 724 F.2d 943, 949 (Fed.Cir.1983); Haine v. Department of the Navy, 41 M.S.P.R. 462, 469 (1989).”Walsh v. VA, 62 M.S.P.R. 586 (May 31, 1994). But removal is not automatic by any means, and the MSPB has also found adequate grounds to distinguish Weston, if the facts are right.Franklin v. DOJ, 71 M.S.P.R. 583 (Sept. 20, 1996)(Board sustained lesser action than removal for failure to cooperate where agency gave employee only one chance and failed to advise the employee of the possible consequences of non-cooperation).See also Modrowski v. Department of Veterans Affairs, 253 F.3d 1344 (Fed. Cir. 2001). ...
Truth.The
agency and investigator have the right to expect truthful answers
during the investigation.False
answers or misrepresentations can be the basis for action, including removal.In
LaChance
v. Erickson, the lower Court of Appeals had held that a federal agency
could not discipline an employee for providing false information during
an investigation.The Supreme Court
reversed the Court of Appeals.The
Court of Appeals had expressed a concern that if an employee were required
to be truthful, they might “be coerced into admitting the misconduct, whether
they believe they are guilty or not, in order to avoid the more severe
penalty of removal possibly resulting from a falsification charge.”The
Supreme Court described this concern as “entirely frivolous . .
. we hold that a government agency may take adverse action against an employee
because the employee made false statements in response to an underlying
charge of misconduct.”LaChance
v. Erickson, 118 S.Ct. 753, 754 (1998)(emphasis added).See
also Cross v. Department of the Army, 89 M.S.P.R. 62, 80 (2001)(removal
of supervisor for falsification during investigation upheld).
...
Lack of Candor
and Falsification.Lack of
candor and falsification are different, although related, forms of misconduct,
and the latter is not a necessary element of the former.Falsification
involves an affirmative misrepresentation, and requires intent to deceive.Lack
of candor may include a failure to disclose something that, in the circumstances,
should have been disclosed in order to make the given statement accurate
and complete.It involves an element
of deception, but intent to deceive is not an element.Ludlum
v. Department of Justice, -- F.3d --, WL 104890 (Fed. Cir. 2002)
What legal rights
do the participating witnesses have in the investigation?
...
Basic introduction.As
a matter of courtesy and good investigative practice, the investigator
should always introduce himself/herself and explain that they are conducting
an official investigation.The investigator
should explain the nature of the investigation and advise an employee-witness
that participation is mandatory and that a record of the interview will
be prepared.It is important to
explain that the information provided will not be confidential.It
is also a good idea to advise the witness that he or she will be provided
a copy of the record of interview.
An employee is not
entitled to be informed of the charges made against him or her at the administrative
investigation stage.Ashford v.
DOJ, 6 M.S.P.R. 389 (June 1, 1981).
A non-employee witness cannot be required to participate. ...
Legal Rights.An
employee does not have a right to legal representation unless the investigation
may lead to criminal prosecution.If
the investigation could be used in a criminal prosecution, the employee
has the same rights as any other suspect being questioned.And
in the case of a custodial questioning, the employee must be advised of
rights under Miranda v. Arizona, 384 U.S. 486 (1966) – the right
to remain silent, any statement may be used in evidence against him, and
the right to the presence of an attorney, retained or appointed.Criminal
investigation is beyond the scope of this outline and should be referred
to the proper law enforcement authority.If
an employee has reason to believe that information that he or she provides
could be used in a criminal prosecution, they do not have to cooperate
with the administrative investigation and cannot be disciplined for refusing
to respond.Gardner v. Broderick,
392 U.S. 273 (1968).
Important note:The fact that an employee can refuse to participate in an investigation even though he or she is suspected of wrongdoing can be a major problem and is addressed below in detail. ...
Right to a Union
Representative.5 U.S.C. §
7114(a)(2)(B).If an employee
is within a bargaining unit, has reason to believe the investigation could
lead to disciplinary action, and requests union representation, the union
then has a right to send a representative to be with the employee at the
investigation.The union/employee
may also have additional rights under contract or past practice.
5 U.S.C. § 7114(a)(2)(B) reads in part:“an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if – (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation.”This language is based on NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). ...
Bargaining Unit
Only.Unlike the private
sector where Weingarten rights have been extended to unrepresented employees,
only federal employees in appropriate units are covered by § 7114(a)(2)(B).
The right to union representation has four parts: (1)meeting must constitute an “examination,” (2)in connection with an “investigation,” (3)the employee must “reasonably believe” that discipline could result, and (4) the employee must request representation. ...
Examination in
connection with an Investigation:Broadly
defined by the FLRA. The rule of thumb is if the agency is seeking information
from the employee then it is an examination in connection with an investigation;
if the agency is simply giving information to the employee, it is not an
examination.AFGE, Local 2366
v. INS, U.S. Border Patrol,
46 FLRA 31 (Oct. 28, 1992); and AFGE
Local 1138 v. Wright Patterson Air Force Base, 9 FLRA 117 (Aug. 5,
1982)(meeting for the sole purpose of informing an employee of a decision
already made by the agency is not an “examination.”)Inspector
General investigators are agency representatives and this extends to criminal
investigations by agency investigators as well.National
Aeronautics and Space Administration, Washington, D.C. Office of the Inspector
General v. FLRA, 119 S. Ct. 1979 (1999).See
also U.S. Department of Justice, Washington, D.C. and U.S. Department of
Justice, Office of the Inspector General, Washington, D.C. 56 FLRA
No. 87, 56 FLRA 556, 560 (2000)(the relationship between the Inspector
General and the agency does not change when a criminal matter is investigated).
...
Reasonably Believed:This
is an objective test whether a reasonable person would conclude that disciplinary
action might result.“The FLRA has
consistently interpreted 7114(a)(2)(B) to say that a right to union representation
exists whenever the circumstances surrounding an investigation make it
reasonable for the employee to fear that his answers might lead to discipline.The
possibility, rather than the inevitability, of future discipline determines
the employee’s right to union representation.”AFGE,
Local 2544 v. FLRA, 779 F.2d 719 (D.C. Cir. 1985).Remember
this right is present even if management is not intending any discipline
at the time of the examination, and it is present even if another employee
is the subject of the investigation.
...
Request for Representation:There
is no specific form in which the request must be made.If
the employee places the agency on notice of his or her desire for union
participation, that is sufficient.Tidewater
Virginia Federal Employees Metal Trades Council v. Norfolk Naval Shipyard,
35 FLRA 116 (May 10, 1990).There
is no statutory requirement to advise the employee of the right to request
union representation, but many collective bargaining agreements do include
that right by contract.
...
Agency Choices:Once
an employee has requested a union representative, the employer has three
options:
(1)grant the request, (2)cancel the interview, or (3) offer the employee a choice between continuing without representation or having no interview at all (if employee chooses to continue, the right to representation is waived). ...
Choice of Representative.The
union chooses the representative.However,
the presumption that the union selects the representative can be rebutted
where the agency can demonstrate “special circumstances” that preclude
that representative -- agency must show that the integrity of investigation
would be compromised.
...
Waiting for Representative.If
there is an undue delay, the agency may resume the interview, but
that is risky.The FLRA has indicated
that it is “unwilling to conclude that there is never any obligation to
postpone a Weingarten interview merely because a specific union representative
is not available.”AFGE, Local
1917 v. INS, 46 FLRA 114 (Jan. 15, 1993).Factors
the FLRA will consider are:(1) was
delay caused by agency, (2) availability of other capable representatives,
and (3) impact of postponement on investigation.
...
Representative’s
Conduct.The role of the
union representative is not entirely clear.The
FLRA has indicated that the employer is free to insist on hearing the employee’s
own account and the representative cannot speak for the employee.Beyond
that the FLRA has allowed the representative to be active in assisting
the employee.This has included demanding
the interviewer clarify questions to the employee, taking an active role
in helping the employee present facts in his defense, and the right to
“consult privately” with the employee outside the hearing of the interviewer.AFGE,
Local 171 v. Bureau of Prisons, 52 FLRA 43 (Oct. 23, 1996).
...
Right to Information.The
union representative can ask for pre-interview information.There
is no general right to discovery and the agency need not reveal
its case or the information already obtained.The
union is entitled to general information to become familiar with issues
and effectively assist the employee.
...
Remedy for Failure.Failure
to abide by 7114(a)(2)(B) rights may invalidate any subsequent disciplinary
action.In a case in which the FLRA
found a Weingarten violation by the employer, it ordered the interview
of the employee be repeated “at the request of the union and the employee,
with appropriate union representation, and that the disciplinary action
previously taken against the employee be reconsidered based on information
obtained in the new interview without reference to or reliance on information
obtained in the previous interview.”The
FLRA also ordered the employee be “made whole” consistent with the new
disciplinary action.AFGE Council
of Prison Locals v. Federal Bureau of Prisons, 55 FLRA 64 (Apr. 29,
1999).See also, AFGE, Local 2313
v. Bureau of Prisons, Safford, AZ, 35 FLRA 56 (Apr. 6, 1990).
...
Brookhaven:Re-Interview
in preparation for Hearing.A
special rule applies when the employer desires to interview or re-interview
an employee in preparation for a third-party hearing, such as preparing
for arbitration.The FLRA has directed:
(1)management inform the employee who is to be questioned of the purpose of the questioning, assure the employee that no reprisal will take place if he or she refuses, and obtain the employee’s participation on a voluntary basis; (2)the questioning must occur in a context which is not coercive in nature; and (3) the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee’s statutory rights.” Internal Revenue Service, Brookhaven Service Center and National Treasury Employee Union, 9 FLRA 132 (Aug. 16, 1982).
How does an investigator
avoid the problem of the employee’s right to remain silent?
The Supreme Court concluded that an employee cannot be dismissed because he or she has refused to answer questions about on-the-job conduct if they have invoked their Fifth Amendment rights to remain silent.Similarly an employee cannot be disciplined for refusing to waive his or her Fifth Amendment rights.Gardner v. Broderick, 392 U.S. 273 (1968) and Sanitation Men v. Sanitation Commissioner, 392 U.S. 280 (1968).“If answering an agency’s investigatory question could expose an employee to a criminal prosecution, he may exercise his Fifth Amendment right to remain silent.See Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed 652 (1906).”LaChance v. Erickson, 118 S.Ct. 753, 754 (1998). ...
Problem.Since
many types of on-the-job misconduct can include a potential for
criminal prosecution, this can impede an investigation.For
example, a complaint of sexual harassment may include an offensive touching
that is arguably an assault and battery offense.Or,
you may have an argument that ended in shoving or even fighting; this is
also a potential criminal offense.If
the investigator needs to gather information from the suspected offender,
the problem of the employee having the right to remain silent is often
significant to the investigation.
Unless the information
is going to be used for criminal prosecution, there is no right
to remain silent.Kalkines v.
United States, 473 F.2d 1391 (Ct. Cl. 1973). The MSPB has interpreted Kalkines to support the proposition that an employee can be removed for failing to reply to investigatory questions: An employee may be removed for not replying to questions in an investigation by an agency if he is adequately informed both that he is subject to discharge for not answering and that his replies and their fruits cannot be employed against him in a criminal case.See, e.g., Kalkines v. United States, 473 F.2d 1391, 1393, 200 Ct.Cl. 570 (1973). Haine v. Navy, 41 M.S.P.R. 462 (Aug. 9, 1989).In this case the employee had received proper warning advice, including: (1)He would be asked questions concerning the performance of his official duties; (2)he had a duty to reply to these questions; (3)neither his answers nor any information or evidence therefrom could be used against him in a criminal proceeding;and (4)he would be subject to dismissal if he refused to answer or failed to respond truthfully and fully to any questions. But even if an employee is not fully warned, the right to remain silent only applies if the employee has a reasonable basis to believe that criminal prosecution could result.Ashford v. DOJ, 6 M.S.P.R. 389, 466 (1981). If an employee is forced to answer incriminating questions under penalty of disciplinary action, the answers cannot be used in a criminal proceeding.Garrity v. New Jersey, 385 U.S. 493 (1967). ...
Warning.Some
guides to administrative investigations have put Garrity and
Kalkines together and come to a problematic conclusion.The
analysis goes like this:(1) since
evidence obtained from mandatory questioning cannot be used in a criminal
prosecution pursuant to Garrity, then (2) pursuant to Kalkines
the
employee must answer or face disciplinary action for failure to cooperate.In
essence the two rules work together as a de facto “use immunity”
and this then requires an employee to answer investigatory questions or
face discipline, possibly removal.
Important note:This is probably legally and logically correct, but if the de facto immunity results in damaging a federal or state prosecutor’s case when it goes to criminal trial, it will be very embarrassing for the agency and investigator.To avoid this problem, the Department of Justice has established very clear rules prohibiting agencies from unilaterally giving an employee “use immunity.” Under no circumstances should a prospective interviewee with foreseeable criminal exposure be interviewed under an express or implied threat that he will be discharged if he refuses to cooperate in the investigation by invoking his rights under the Fifth Amendment, unless this course of action has been discussed with and approved by the Department of Justice.Requests for permission to utilize this interrogation procedure should be directed to the Justice Department component to which a referral of the matter would be made pursuant to 28 U.S.C. 535.Such clearance should be obtained before the witness is questioned.
Attorney
General Memorandum to Agency Heads dated June 4, 1980.
When an agency undertakes an investigation of an employee for matters that have potential criminal liability, it has two choices: 1.Give the employee a Miranda type warning that includes the right to elect to remain silent. 2.Get a clearance from the Department of Justice to allow the witness “use immunity” and include the language described above in the advice to the witness.For very routine matters, a blanket authority can be approved in advance. The alternative warning forms are attached.Please remember:Matters that have any real chance of criminal prosecution should be referred to the proper criminal investigative activity. Finally on the issue of potential criminal prosecution, under no circumstances should an agency representative ever state or imply that criminal prosecution either will or will not be undertaken.Those decisions are in the exclusive domain of the Department of Justice or state and local prosecutors.An implied ‘transactional immunity,” even if made completely without authority, can cause significant problems for prosecutors. ...
Bottom Line:If
an employee is properly warned that disciplinary action may result for
lack of truthful cooperation and that any evidence obtained cannot be used
in a criminal prosecution, then he or she must truthfully cooperate or
face disciplinary action, up to and including removal. LaChance
v. Erickson, 118 S.Ct. 753 (1998); Kalkines v. United States,
473 F.2d 1391 (Ct. Cl. 1973); Weston v. U.S. Dept. of Housing and Urban
Development, 724 F.2d 943 (Fed. Cir. 1983).See
also Modrowski v. Department of Veterans Affairs, 252 F.3d 1344, 1351
(Fed. Cir. 2001)(“Invocation of the Garrity rule for compelling
answers to pertinent questions about the performance of an employee’s duties
is adequately accomplished when that employee is duly advised of his options
to answer under immunity granted or remain silent and face dismissal.”).
...
What
legal rights do third-parties have in the investigation? A meeting with an employee purely for the purpose of investigating a job related issue is not a formal meeting within the meaning of the Federal Service Labor Management Relations Statute and the union is not entitled to have a representative present at the interview.Contrast 5 U.S.C. 7114(a)(2)(A) and (a)(2)(B).
Who
will have access to all or part of the investigation?
A witness in an interview is entitled to a copy of his or her own statement or affidavit. An EEO Complainant is entitled to a complete copy of an investigation conducted pursuant to 29 C.F.R. § 1614. An employee who receives discipline or adverse action is entitled to a copy of all materials relied upon by management in deciding to take that action.5 U.S.C. § 7503.
FOIA
– Freedom of Information Act – FOIA is an access statute.It
permits any person, whether U.S. citizen or foreign, to seek access to
records of the Executive Branch of the Government.Supreme
Court:FOIA reflects “a general philosophy
of full agency disclosure unless information is exempted under clearly
delineated statutory language.”Department
of Air Force v. Rose, 425 U.S. 352, 360-361 (1976).Still,
there is a less open policy recently.New
Justice Department policy:
Any
discretionary decision by your agency to disclose information protected
under the FOIA should be made only after full and deliberate consideration
of the institutional, commercial, and personal privacy interests that could
be implicated by disclosure of the information. In
making these decisions, you should consult with the Department of Justice's
Office of Information and Privacy when significant FOIA issues arise, as
well as with our Civil Division on FOIA litigation matters. When you carefully
consider FOIA requests and decide to withhold records, in whole or in part,
you can be assured that the Department of Justice will defend your decisions
unless they lack a sound legal basis or present an unwarranted risk of
adverse impact on the ability of other agencies to protect other important
records. Compare old (1993) DOJ policy:“In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption . . . .If there is little or no harm of the type the exemption is meant to prevent, the exemption should not be applied.”
Federal Labor Management
Relations Act – Under section 7114(b)(4), an agency’s duty to
bargain in good faith includes the obligation to furnish an exclusive representative
of its employees, upon request, and to the extent not prohibited by
law, data meeting the following criteria:
- normally maintained by the agency in the regular course of business; - reasonably available; - necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; - and not constituting guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Pre-Trial Discovery:If the case proceeds so far as federal district court, the rules of pre-trial discovery require the release of all relevant evidence or any information that may logically lead to relevant evidence.Federal Rules of Civil Procedure 26 (b)(1): Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Is
a Privacy Act Statement required?
Sometimes “yes” and sometimes “no.”A good lawyer’s answer.If you are collecting information for inclusion in a system of records and those records can be retrieved by name or personal identifier, a Privacy Act Statement is required.In the normal pre-action investigation the information will not be included in a system of records and a Privacy Act Statement is therefore not normally required.By comparison, an IG Investigation or an EEO investigation, is maintained in a system of records and would require a privacy act statement. In my experience, most investigators conducting a simple pre-action investigation do not provide a Privacy Act Statement.But using a Privacy Act Statement is easy enough and can be incorporated into your other advice memorandum under Kalkines.The Privacy Act neither confers nor denies the right to remain silent.Thus as indicated elsewhere in this discussion, if a government employee is required by other regulations to answer questions, he or she cannot refuse to answer questions based on the Privacy Act.This is another good area to discuss with your legal advisor prior to beginning your investigation.
What
about Confidentiality?
Two important issues. First, allegations that lead to investigation usually involve sensitive issues and are almost always derogatory in nature.In short the mere existence of the investigation may constitute an invasion of privacy, harm the reputation and careers of individuals, and tarnish the image of the agency.The investigator must do everything possible to prevent or minimize the spread of information beyond those who absolutely must know.This is a large part of the need for compete objectivity in the investigation.Keep the files and statements safe, advise all witnesses that they are not to discuss the investigation or their testimony, and do not discuss the investigation outside of those who need to know. Second, many people who provide information during an official investigation believe their identity and information will be held in strict confidence.But there is no right to confidentiality.Even the Inspectors General Act of 1978 does not provide absolute confidentiality even to the complainant.The investigator must clearly communicate to all the witnesses that the information included in the investigation may be made public in one form or another.Never promise confidentiality.
What
about Reprisal?
The right to communicate with your agency and disclose issues of suspected misconduct is protected by the Whistleblower’s Protection Act.The scope of this protection is beyond this outline, but every investigator should advise witnesses that if they believe reprisal has or is about to take place because they participated in the investigation, they should immediately contact the investigator.Reprisal is a separately punishable offense under many authorities and may very well constitute a greater violation than what is being investigated.For example, in the EEO area, reprisal against an employee for participation in the EEO complaint process is itself a separate act of discrimination.
When
preparing the statement, what format should be used?
I recommend that statements be taken in the form of a declaration rather than an affidavit.An affidavit must be notarized to be properly executed.Whereas a declaration under 28 U.S.C. § 1746 is acceptable in court without notarization. A simple and effective declaration format is simply: Pursuant to 28 U.S.C. § 1746, I, ________________ , declare as follows: [body of declaration] I declare under penalty of perjury that the foregoing is true and correct.Executed on __[date]_____ . ___[signature]_____________ ___[witness]______________ Federal courts have routinely held that a person who
makes a false § 1746 statement “under penalty of perjury” may be charged
with perjury under 18 U.S.C. § 1621, just as if the statement were
made under oath.
...
OFFICIAL SHIPYARD INVESTIGATION
Please carefully read
and initial each section:
I have been informed and I understand this is an official investigation involving matters relating to my official duties as a federal employee. I have been informed and I understand, as a federal employee, I am required to cooperate with this official investigation and provide truthful answers. I have been informed and I understand this is not a criminal investigation and neither the information I provide in response to questions by the investigator or any evidence gained by reason of my answers will be used against me in a criminal proceeding unless I knowingly provide false information. I have been informed and I understand that if I refuse to cooperate and answer questions in this official investigation, my refusal to cooperate can be a basis for disciplinary action, which may result in my removal from federal service. ___ I have been informed and I understand if I provide information during this official investigation that I know to be false at the time I provide that information, my providing false information can be a basis for disciplinary action which may result in my removal from federal service. I have been informed and I understand if I provide information during this official investigation that I know to be false at the time I provide that information, my providing false information can be a basis for criminal prosecution. SIGNATURETIME & DATE
WITNESSTIME
& DATE
OFFICIAL SHIPYARD INVESTIGATION
1.You
have the right to remain silent and refuse to answer any questions at any
time.
2.Anything you say or do can be used against you in a court of law or administrative proceeding. 3.You have the right to talk to a lawyer before answering any questions and to have a lawyer with you during questioning. 4.If you cannot afford a lawyer, one will be appointed for you without cost before questioning. 5.If you decide to answer questions now, you have the right to stop answering questions at any time. 6.If you refuse to answer questions on the grounds that the answers may tend to incriminate you, you cannot be removed solely for remaining silent. 7.If you choose to answer questions, you must answer truthfully.If you knowingly give false or misleading information you are subject to disciplinary action that may result in your removal from federal service. I have read each of the seven statements of rights and advice listed above and I understand these rights.I am willing to make a statement and answer questions.No promises or threats have been made against me, and I agree to answer questions of my own free will. PRINT FULL NAME SIGNATURETIME & DATE
WITNESSTIME
& DATE
VOLUNTARY STATEMENT I, __________________________ make the following voluntary statement to __________________________ who has advised me that he/she is conducting an official investigation regarding ________________________ .I am making this statement without threat or promise and of my own free will. OROFFICIAL STATEMENT I, _________________________ have been advised that I am required to provide a truthful statement regarding official duties.I make this statement to _________________________ who has identified herself/himself as conducting an official investigation into ______________________________ .I make this statement as part of my official duties and it is truthfully made without threat or promise. ORAFFIDAVIT I, _________________________ hereby certify under penalty of perjury, in accordance with 28 U.S.C. § 1746, that the following is true and correct to the best of my belief. CLOSING PARAGRAPH By my signature below I acknowledge that I have read and understood my statement consisting of this page and_____ other pages.I have made all the changes and corrections I desire to make and have initialed each change I have made. _______________________ Signature and date[Witnessed, sworn to, or notarized ]
OATHS
An oath is not required, but can provide support in getting truthful statements.It is important to get all statements in writing, signed, and witnessed for authenticity.An unsworn declaration pursuant to 28 U.S.C. § 1746 is acceptable as evidence under federal district court rules, and I have never had an administrative agency refuse one. Several statutes give federal employees the authority to administer oaths or you may be able to have the witness sign the document in front of a notary public.The most general authority is 5 U.S.C. § 303.It reads: (a) An employee of an Executive department lawfully assigned to investigate frauds on or attempts to defraud the United States, or irregularity or misconduct of an employee or agent of the United States, may administer an oath to a witness attending to testify or depose in the course of an investigation. (b)An employee of the Department of Defense lawfully assigned to investigative duties may administer oaths to witnesses in connection with an official investigation.
PLANNING, CONDUCTING, AND REPORTING INVESTIGATIONS
Planning
the Investigation
Know your Task and Authority What information is being sought and why? What degree of importance? Are there any pre-investigatory restraints? What are the deadlines? Assess
your Own Impartiality and Objectivity Assess
your Knowledge of the Subject Enlist
your Subject Matter Experts and Legal Advisor Consider
and List the Objectives of a Complete and Thorough Investigation Consider
your Sources of Evidence Evaluate
the Quality of Evidence Material Evidence--Evidence is material if it relates to one or more of the issues raised in the inquiry. Relevant Evidence--Evidence is relevant if it tends to prove or disprove a material issue raised in the inquiry. Reliable Evidence--Even if material and relevant, not all evidence is worthy of belief.Some factors to consider in determining whether testimony is reliable are:
1.Is the testimony based on personal knowledge or experience? 2.Is the testimony a direct observation or merely a conclusion? 3.Does the witness have an interest in the outcome of the inquiry? 4.Is the witness biased for other reasons? Prepare
an Investigative Plan and Order of Interviews Order
of Preferred Interview Methods 1.In person and face-to-face. 2.Telephone Interview with subsequent written declaration. 3.Written Interrogatories as last resort. ....
Conducting the Investigation Collect
Most Reliable Information First
Documentary Evidence – Daily Reports, Letters, Logs, Emails, Written Work, Photographs, Video Tape, Time Cards, Attendance Records, etc. Neutral Witnesses Interested Witnesses Complaining Party and Suspected Employee-- (Remember the Waters and Dong cases) Method of Interview 1.Tell the witness who you are and the general purpose of the official investigation. 2.Advise the witness of their rights and duties in the investigation (varies). 3.Advise the witness that a written declaration/affidavit will be prepared and they will receive a copy of the completed document. 4.Advise the witness that as you speak to all the witnesses, you will be coming back to seek additional input.Make sure the witness knows there will be follow-up. 5.Advise the witness that you are going to ask them to first tell you everything they know about the issues and that you will then go back through the testimony carefully and ask questions. 6.Ask the witness to narrate what they know about the issues once all the way through.Some experienced investigators choose to take no notes the first time as a way of keeping the witness at ease.The investigator may need to do some prompting, as in “tell the whole story.”During free narration, interviewees frequently provide valuable clues while talking about things that would have seemed unrelated to the investigator prior to the interview. 7.Then ask questions and take verbatim notes.Keep the pace within what you can transcribe.Tape recording is an option, but many witnesses are inhibited by a taping device. 8.Many experienced investigators ask easy questions first on issues that are already well established, then move to the more difficult issues.You might think of this as asking direct questions first and then cross-examination questions at the end.Leave the issues most likely to be in dispute until the end. 9.Clarify everything!!Avoid all conclusory statements by the witness.You don’t want to know that a person was angry; you want to know what they did, what they said, how they said it, was it a loud voice or a screaming voice, etc.Likewise words like drunk, confused, impolite, disrespectful, late, troublemaking, numerous, threatening, frequent, etc. are all too imprecise and capable of later revisions.Pin down the facts.Never accept a vague statement – all too often a witness will put a different spin on that statement later.If a comment is capable of more than one meaning, break it down further until it is as singular as possible. 10.Put the interview into a first person statement using the exact words used by the witness (do not edit or summarize in your own language). 11.Have the witness read it, make changes, and sign it.If you can do it in one sitting, with a laptop computer for example, that is the best approach.Administering an oath is optional. 12.Tell the witness to contact you immediately if they think of any new information. 13.When you are done, make sure you know how to contact the witness again and make sure they know how to contact you in the event of newly remembered information. 14.Give the witness a copy of their statement. 15.Advise the witness not to discuss his or her testimony with any other prospective witness. 16.Advise the witness that if they believe there has been any reprisal for their testimony, to contact you immediately. 17.Keep all your original notes with the finished statement. Conduct to Avoid 1.Showing personal prejudice or bias to witness. 2.Lying. 3.Hurrying. 4.Degrading the witness. 5.Placing too much value on minor inconsistencies. 6.Bluffing. 7.Anger. 8.Leading questions – most people are suggestive and want to please the interviewer; do not suggest the “right” answer. 9.Negatively phrased questions – such as, “You wouldn’t do anything like that, would you?”Again, this not only suggests the “right” answer, it communicates that the investigator has already prejudged what will be reported as wrongdoing.The investigator should not influence the testimony. 10.Compound questions – when questioning, try to ask for one piece of information at a time. 11.Complex questions – keep it simple.
Interview
suggestions
Probe for bias or influence – Ask witnesses what they heard about the investigation, whether anyone has discussed it with them, and what, if anything, they have done to prepare for the interview.Ask if any prior testimony has been related to them, and whether anyone has asked them what they would say to the investigator, or has attempted to suggest what they should say.Ask if they have any special relationship to any of the parties (related by blood or marriage, golf partners, members of same club, church etc.).Ask if there is any reason they cannot be fully objective, or if they have any reason to fear reprisal for their testimony. If you strongly suspect a witness is lying you may give the following advice: I consider it my duty to advise you that under the provisions of Section 1001, Title 18, United States Code, whoever in any matter within the jurisdiction of any Department or Agency of the United States knowingly and willfully falsifies, conceals, or covers up by trick, scheme or device, a material fact, or makes any false, fictitious, or fraudulent statement or representation, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.Additionally, any person who willfully and contrary to his/her oath testifies falsely, while under oath may be punished for perjury in accordance with Section 1621, United States Code.Do you understand? Review
all the Evidence Collected Re-Interview Witnesses as
Needed and it probably will be needed Organize
your Evidence
Preparing
the Report of Investigation
Subject Background List
of Exhibits or Enclosures including written witness statements Statement
of Facts (each fact must be supported by one or more Exhibit) |
ADMINISTRATIVE INVESTIGATIONS
Presented by Dave Franey and Steve Seaton at SOELR 2002
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