Avoid recalling from memory


I thought I’d written my last column this year in which I offer advice on being interviewed by an Office of Inspector General.

We litigated the two widely reported recent Veterans Benefits Act (VBA) cases before the Merit Systems Protection Board in which two career senior executives with stellar careers were demoted by the Department of Veterans Affairs based on an OIG report that turned out to be wholly unreliable.

It became clear in the lead up to the two MSPB hearings that a major reason the report was so unreliable because of the testimony the OIG elicited from witnesses during its interview stage of the investigation. The OIG intentionally refused to show a single witness any documents or emails related to the matters under investigation, instead insisting that witnesses testify from memory about transactions that had occurred a year earlier.

I am not alone in saying that this widely publicized VA OIG report was unreliable. The VA’s deputy secretary presented written testimony to Congress for a Dec. 9, 2015 hearing in which he stated that he and the Veterans Affairs secretary “were very disturbed to find that the underlying evidence does not support the report’s findings with respect to people.” He went on to state that “there were significant gaps between the rhetoric in the report and the … employees’ testimony.”

With regard to the central issue of whether these two career VA executives misused their official positions for their personal gain, the deputy secretary stated: “nor did the evidence establish that the superior leaders’ reassignments to their subordinates’ former positions was improper or contrary to law.” Thus, neither executive’s demotion action was based on a charge that they engaged in some scheme to move themselves into their subordinates’ positions with lesser responsibilities at their higher salaries, the central conclusion of the OIG, disavowed by the VA leadership, but not understood by any press reporting.

In conducting its “investigation,” the VA OIG interviewed 11 individuals, mostly high-ranking officials of VA and VBA. In each interview, the OIG declined to show a single witness a single piece of paper, and instead said: “We’re just asking you to recall from memory.” Surely the OIG investigators must know that these memories had the potential of being wholly unreliable as each witness explained so. Nonetheless, the OIG declined to show anyone an email or paperwork on the reassignments at issue. Each witness, except for one, fell for it and answered “from memory.” Often the witness’s memory was faulty.

The exception was the chief of staff to the secretary. At the VA, the COS must approve every reassignment of an executive after considering a package of underlying paperwork. The COS had approved the reassignments under “investigation.” His OIG interview was short. That’s because he politely declined to answer any substantive question about any of the reassignments without being able to review the underlying paperwork he reviewed and signed when he approved each personnel action.

The OIG persisted in questioning him despite his requests to review the paperwork. He held his ground. Six times he asked the investigators if he could review the packages before answering questions about his approvals. He was able to end the interview by not answering any question from memory and by saying he would read the reassignment paperwork, and asked the investigators to follow up with him after he’d conducted his review. Interestingly, the OIG never circled back to speak with this single witness who had refreshed his memory before answering any questions.

Take a cue from your former chief of staff. If your memory is unclear, do not guess. If you know there is paperwork or emails that will help refresh your memory, ask to see it. When the OIG refuses to show it to you, know you are being set up and refuse to guess.

If your memory is not clear, then that’s your answer: I don’t recall. Of course the VA OIG will harangue and threaten you about not cooperating. However, you are not required to guess about something if you don’t recall it. Hold your ground: “I don’t remember.”


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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