The phone rings and it is Special Agent John Doe from your agency’s Office of the Inspector General. He tells you he is doing an investigation and wants to stop by the next day to clarify some things he’s looking into. Should you be worried? Should you kick yourself for procrastinating about purchasing professional liability insurance?
First, when Agent Doe calls, ask if you are the subject or target of the investigation. It makes a significant difference whether you are a witness providing background information or whether the IG is looking into a concern that you might have violated the law or engaged in misconduct. If you are not the target, you can feel more comfortable about agreeing to the interview.
Second, ask whether the interview is voluntary or compelled. If voluntary, it often means the IG is looking into a possible criminal matter and you should not go without legal advice. If the interview is compelled, you cannot be criminally prosecuted for what you say, but your testimony can be used to support a disciplinary action against you. Also, if you are dishonest with the investigator, you can be prosecuted for it.
All employees have a duty to cooperate in an investigation. The only way to escape this is to resign your employment. Cooperating does not mean you have to answer all questions. Sometimes cooperating means showing up and answering questions or exercising your Fifth Amendment right against self-incrimination.
If it sounds complicated, it is, and usually requires the assistance of a lawyer to navigate the legal maze.
So, request Agent Doe’s telephone number and tell him you will get back to him. Then, call your lawyer.
IGs will permit you to have a lawyer at the interview. You do not have a right to have a lawyer during the interview concerning a criminal investigation, but IGs will allow you to have an attorney as a courtesy. You do have the right to obtain legal advice before being required to answer a question. This means you should ask Agent Doe the subject of the investigation and seek legal advice before the interview.
Most people contacted by an IG participate in the interview believing that they have done nothing wrong or that they can explain their way through things. Sometimes this works and sometimes the IG is out to play a game of “gotcha.” Be careful whenever dealing with an IG investigation that is about you. Nothing good can come from the investigation and your job is to minimize the damage. You will not be able to convince the agent you are innocent. Your goal should be to make him believe he lacks the evidence to convict you or to sustain a charge of misconduct.
Because the process is so legalistic, you should consult an attorney for all but the most routine of investigations. This attorney will not be paid for by your agency and is one of the main reasons for considering professional liability insurance. If the IG is investigating you for something you did on the job, providers of professional liability insurance should cover you and provide a lawyer to you at no cost.
Three companies provide professional liability insurance to federal employees: Federal Employee Defense Services, Wright USA and Mass Benefits Consultants.
When you attend the meeting with the IG agent, remember three rules to help minimize the damage:
Tell the truth. Many employees have more serious problems because they lied or were not fully candid during an interview than they would have been if they had told the truth and admitted some uncomfortable fact.
Do not guess or speculate about anything. It is permissible to say you forgot or do not know something if that is a truthful answer. Speculating and getting it wrong will cause the investigator to think you are being less than truthful.
Do not volunteer anything. Your duty is to give an honest, responsive answer. You do not need to make the IG agent’s job easier by volunteering something that is not asked. Remember, your focus is on minimizing the damage to you.