Q & A Session: Pleading the 5th during an interview with OIG/management

Q:

Can a federal employee plead the 5th rather than say “I didn’t do it” or “I don’t know” in an interview with the Office of the Inspector General or management?

A:

In an interview, you can state that you do not remember, or that you do not know the answer to the question whenever that answer would be truthful, but it must be the truth.

Regarding your question about when you have a right to remain silent pursuant to the Fifth Amendment, the Fifth Amendment states that:  “No Person . . . shall be compelled in any criminal case to be a witness against himself . . .”  In 1967, the Supreme Court decided a case which helped to explain when a government employee may refuse to answer questions posed by his or her employer.  That case is Garrity v. New Jersey, 385 U.S. 493 (1967).  In Garrity, police officers were told that they had to answer questions about their conduct, that their answers could be used against them in a criminal prosecution, and that they would be fired if they refused to answer.  The officers confessed to criminal activities and were criminally convicted.  The Supreme Court held that this practice was unconstitutional, and amounted to a coerced criminal confession, in violation of the Fifth Amendment.

As a result of this case, employees of the Office of the Inspector General cannot compel an employee to provide an answer if they wish to use the employee’s testimony against him in a criminal proceeding.  However, the OIG can require an employee to answer questions if they forfeit the right to use your answers against the employee in a criminal prosecution.  Fortunately, there is an easy way to know whether or not you have a Fifth Amendment right not to answer the OIG’s questions:  ask the OIG investigator whether your participation is voluntary, or if it is compelled.

If the OIG tells you that it is a voluntary interview, then you have a Fifth Amendment right not to answer anything at all.  Your refusal to participate in a voluntary interview cannot be used against you in a criminal proceeding or as the basis for firing you.  Even if you wish to participate in the interview, you can inform the OIG that you will only voluntarily participate if you may have an attorney present to represent you in the interview.

If the OIG informs you that you must participate in an interview, and that you can be fired for refusal to participate, then your response is compelled and you must answer questions or risk being fired.  In a compelled interview, your statements can only be used against you in a disciplinary matter, but answers to their questions will not be used against you in a criminal proceeding (the exception being that an employee can still be criminally prosecuted for making false statements during the interview).  If you wish, you can still request an attorney be present with you in a compelled OIG interview, although the OIG is generally not obligated to agree to this in a compelled interview.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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