BEST OF SOELR 2003 [PERMERICA.COM]

ADMINISTRATIVE INVESTIGATIONS

PART 1

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.”

Inspector General Act of 1978.

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).See also Hanna v. Dept. of Labor, No.

00-3240 (Fed. Cir. 2001), unpublished 18 Fed.Appx. 787.

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, 278 F.3d 1280 (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).The FLRA does a case-by-case review of Brookhaven issues to determine

“voluntariness.”

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 re: Garrity plus Kalkines.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 legally correct.See Bucknor v. U.S. Postal Service, 93 M.S.P.R. 271

(2003)(separate opinion by Judge Slavet).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.The authority to

grant use immunity is specified by regulation and the U.S. Attorneys” Manual.28 C.F.R. §

0.175.U.S. Attorney’s Manual Chapter 9-23.140.An agency can provide use immunity under

limited circumstances “with the approval of the Attorney General.”18 U.S.C. § 6004.No agency

has the authority to approve or cause a grant of use immunity on its own authority.

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 for whom discipline or adverse action is proposed 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

EMPLOYEE INFORMATION AND ACKNOWLEDGMENT FORM

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

YOUR RIGHTS AS A WITNESS

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.

OR OFFICIAL 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.

OR AFFIDAVIT

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.

PART II

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)

Investigator’s Conclusions

ADMINISTRATIVE INVESTIGATIONS
Presented by Dave Franey and Steve Seaton at SOELR