It always amazes me how federal employees will let themselves be interviewed by federal law enforcement without even a basic understanding of their rights.
The employees usually believe that they did nothing wrong, so the OIG interview will be harmless. Wrong. The OIG community is banking on you not knowing or understanding your rights as a means for gaining an advantage in an investigative interview. And they will gain that advantage in most instances because the uninformed subject of the investigation is an easy target.
Simply believing you did nothing wrong and explaining so to the investigator is not foolproof. Not many of you know the intricacies of federal criminal law, ethics law and regulations to be in any position to determine that you did (or did not) break the law. Believing that because you lacked criminal intent means you did not commit a crime is simply wrong. The same is true for non-criminal offenses. So concluding that you have “nothing to worry about” because you know you did not intend to violate any law or regulations is foolish.
The most important aspect of knowing your rights is knowing whether you are legally required to answer the questions of an OIG agent. The duty to cooperate in an investigation is only the duty to show up for the interview. Whether you have a duty to answer questions at the interview is a different legal matter. If you are not specifically told that you are required to answer questions asked of you (or face disciplinary action for refusing to answer), then you are not legally required to answer the agent’s questions.
Being required to answer the OIG questions is known as a compelled interview. If you’re not being compelled to answer questions by the OIG, then the interview is voluntary. When your interview is voluntary, that means the OIG is running a criminal investigation of you (which is why you have a Fifth Amendment right to silence), and you would surely want counsel before answering under such a legal circumstance. In a voluntary interview, anything you say can be later used against you to bring criminal charges. We always work to obtain a compelled OIG interview. When your answers are compelled by an agent of the U.S. government, your responses cannot be used against you to bring criminal charges. Compelled interviews mean the OIG and agency can only act against you by way of a disciplinary action and not by bringing criminal charges.
This distinction between a voluntary (criminal) and compelled (noncriminal) interview is simple. However, OIG agents across government feel the need to attempt to confuse most interviewees of whether they are running a criminal or noncriminal investigation. They do so by telling interviewees that they have a “duty to cooperate” or that the interview is “administrative” in nature. Neither phrase informs you of your legal right or obligation: are you compelled to answer the IG’s questions or is the interview voluntary? Stand firm and get an answer to that very specific question: Is the interview voluntary or compelled?
Do not rely on being told it’s merely “administrative” in nature. OIG agents use that term to try to downplay what they are doing. But an administrative interview can become a criminal interview in a moment if you unwittingly answer a question by confessing to a crime. That’s because an interview that is called administrative is a voluntary interview (criminal) unless you are told that you are being compelled to answer questions.
Why do OIG agents attempt to avoid informing you of your legal right to silence? Because by tricking you into answering questions in a voluntary interview they have held open the opportunity to use your own words against you in a criminal proceeding. And OIG agents like making criminal cases. They view that to be their job and indeed are rated on their successes in doing so.
