On the Hot Seat

overnment managers often find themselves the subjects of investigations into allegations of both criminal and administrative misconduct. In today's climate of complaints and accusations, with morale deteriorating throughout the government due to downsizing, a manager may be the target of intense scrutiny over issues ranging from misallocating parking spaces or personal use of frequent-traveler miles to bribery or conflict of interest. Irrespective of the seriousness of the allegations or the dubiousness of the source, the accusation may trigger an investigation.

On the other side of the coin, managers themselves must frequently conduct inquiries involving questionable conduct by their subordinates. Managers are spared such difficult interviews in serious cases-involving, for instance, accusations of espionage, bribery or a six-figure theft-because an outside law enforcement agency or the department's inspector general would conduct the investigation. By contrast, drunkenness, insubordination, chronic absenteeism and misuse of government property may be "below the screen" of an inspector general yet cause enormous problems for the office. Almost invariably, these "management problems" are left for supervisors and mid-level managers to handle themselves.

Surprisingly, government agencies offer managers little or no training in the area of employees' procedural rights in a misconduct case. As a result, managers are often ignorant of their own rights and prone to error in dealing with their employees. For that reason, investigating managers need to learn what they can and cannot do.

But before worrying about employees' procedural rights, a manager must first decide whether he or she should get involved in the problem at all. To avoid blundering into an ongoing criminal investigation and possibly alerting the suspect or prejudicing his rights, a manager should first check whether internal investigators are already involved. In some instances, the manager's call may alert investigators to a matter serious enough to warrant conducting the investigation themselves.

Obviously, common sense must come into play: The manager ought not to waste agency investigators' time by calling them on matters that are clearly of no interest to them, such as minor misuse of property, disrespectful conduct or chronic tardiness.

To help get to the bottom of misconduct allegations, most agencies have a provision in their policies and procedures manual that mandates employee cooperation in internal investigations. The following is typical:

"Employees must furnish testimony, or fully disclose information in their knowledge or possession, concerning any matter of official interest, to any federal court, board, panel, tribunal, agent, or official authorized to conduct a particular inquiry, investigation, hearing, trial, or other proceeding, or to act upon such testimony or information, when directed to do so by proper authority. Employees must answer any proper questions, under oath or affirmation if required, including furnishing or authorizing the release of information related to their financial affairs, which has reasonable relationship to matters of official interest."

An agency's table of offenses delineates punishment for failure to cooperate in an investigation. Frequently, that punishment is removal.

The Warning Dilemma

When making his own inquiries, a manager must above all else respect the constitutional rights of a public employee accused of misconduct. During the 1960s, the U.S. Supreme Court held-in cases such as Murphy v. Waterfront Commission of New York Harbor (1964), Garrity v. New Jersey (1967) and Gardner v. Broderick (1968)-that compelling a public employee to answer job-related questions concerning his own possible criminal conduct under threat of disciplinary action (such as removal) violates his rights under the self-incrimination clause of the Fifth Amendment. The choice between job forfeiture and self-incrimination, said the Court, is inherently coercive and, in effect, a choice "between the rock and the whirlpool." Put another way, a public employee cannot be placed in a position where he will:

• Incriminate himself if he tells the truth.

• Subject himself to perjury prosecution if he lies.

• Set himself up for removal if he refuses to cooperate.

In deciding whether an employee can be compelled to cooperate without running afoul of the Fifth Amendment, a manager must determine whether or not the violation is potentially criminal. If the allegation is non-criminal, the Fifth Amendment does not come into play and the employee must answer questions put to him. Such cases could involve misusing vehicles or giving the appearance of a conflict of interest, for example.

Instructive is the Merit Systems Protection Board's 1981 decision in Ashford v. Bureau of Prisons, where an auditor was accused of, among other things, inappropriate behavior toward a female employee. The Board, in upholding a disciplinary action against Ashford, observed that he had no Fifth Amendment right to refuse an interview by investigators because he was not being accused of a crime but merely of administrative misconduct. The fact that Ashford could be fired or could be subjected to a civil suit by the offended woman couldn't help him. As long as he was free from the danger of criminal prosecution, he had to cooperate.

In such a non-criminal case, the agency should advise the employee of his obligation to cooperate and the consequence for failure to do so via the agency's so-called "administrative warning," which will read like this:

"Under [the applicable agency policies and procedures manual] you are required to disclose any information in your possession pertaining to the matter which I am investigating and answer any proper questions which I might put to you. You may be subject to disciplinary action for your failure or refusal to answer proper questions relating to the performance of your duties as an employee. You may also be subject to criminal prosecution for any false answer that you give to any of my questions."

As this typical agency warning indicates, employees never have a right to lie, even if incorrect warnings or no warnings at all were given. Silence is the only alternative to the truth- and even here, refusal to answer questions can be grounds for an agency to discipline an employee.

Criminal Matters

When a public employee is the subject of an actual or potential criminal investigation, he cannot be compelled to cooperate or face loss of his job. An inquiring official's first step may well be an attempt to secure the voluntary cooperation of the individual with his or her clear and full knowledge of the possible consequences. Many agencies have developed their own wording but the "Beckwith" or "Civiletti" warning is often used:

"You are being contacted to solicit your cooperation in an administrative inquiry regarding misconduct or improper performance of official duties. The matter under investigation could also constitute a violation of law which could result in criminal prosecution of responsible individuals. You have the right to remain silent if your answers may tend to incriminate you. If you do decide to answer questions or make a statement, you may stop answering at any time. Although you would normally be expected to answer questions regarding your official duties, in this instance you are not required to do so. Your refusal to answer on the grounds that the answers may tend to incriminate you will not subject you to disciplinary action by the [agency]. Any statement you furnish may be used as evidence against you in any future criminal proceeding or agency disciplinary proceeding, or both."

This warning clearly discloses its voluntary nature and the possible adverse consequences of cooperation.

If, however, the subject of the potentially criminal investigation declines to cooperate voluntarily, the interviewer must make a choice. If he absolutely needs the statement of the subject to ascertain what occurred, he must forego any use of the statement (or of any evidence derived from the statement) in a subsequent criminal prosecution. The interviewer should consult with agency counsel or internal investigators who, in turn, should obtain from a prosecuting attorney a decision not to prosecute criminally. However, even if an investigating official does not secure such a declination of prosecution, government prosecutors will not able to use the employee's statement; they will be bound by the act of the official, such as the manager making the inquiry. But it's worth noting again that if the manager even suspects that a major criminal case is lurking in the shadows, he should consult with agency investigators before he makes the decision to compel the employee to cooperate. Even if the case turns out not to be criminal, messing up the procedure could be a major embarrassment.

To ensure that an interviewee has been advised of his obligation to cooperate in a potentially or theoretically criminal case that the agency has decided to handle administratively, such as a $25 voucher fraud, the so-called "Kalkines" warning must be given immediately after the administrative warning:

"You are further advised that the answers you give to my questions pertaining to the matter presently under investigation or any information or evidence which is gained by reason of your answers, cannot and will not be used against you in any subsequent criminal proceedings, except that you may be subject to criminal prosecution for any false answer that you give to any questions."

Only in this way, by effectively giving up the right to prosecute criminally, can an agency compel one of its employees to make an incriminating statement without violating his rights under the Fifth Amendment's self-incrimination clause.

In Kalkines v. United States (1973) the government failed in its attempt to fire an employee because it failed to tell him in a potentially criminal bribery case that his statements could not be used against him in any subsequent criminal proceeding. An interesting contrast to that case is Weston v. Department of Housing and Urban Development (1983), where the agency successfully removed an employee for buying HUD property through a straw purchaser after deciding not to prosecute criminally and then giving the employee both the "administrative" and "Kalkines" warnings. In the Kalkines case, the employee's rights under the Fifth Amendment's self-incrimination clause were violated because criminal prosecution had not been ruled out at the time he was compelled to cooperate. In the Weston case, however, the employee had no Fifth Amendment rights whatsoever because he was expressly advised that his statement could not be used against him in a criminal proceeding.

Failure to comply with this elaborate and complex array of warning requirements can and unfortunately does ruin otherwise well-run investigations. Many managers, otherwise knowledgeable, are under the mistaken belief that these "warning rules" apply only to interviews by investigators and not to ones by themselves. In fact, when a manager conducts an interview which elicits information later used against the employee in an adverse action, failure to give the proper warning(s) can cause the Merit Systems Protection Board or the federal courts to overturn an disciplinary action an agency may take.

For example, in Sternberg v. Department of Defense (1989), a supervisor's failure to respect the employee's constitutional rights (in a potential criminal case) caused the Merit Systems Protection Board to reverse the agency's decision to remove him. The employee, Carroll Sternberg, was accused of making threats, using an office copying machine for personal business, improperly entering a military base and running around the base clad only in red underpants. Sternberg's supervisor ordered him to submit written answers to questions about these charges in a memorandum. Sternberg refused to answer based on Fifth Amendment grounds, and the board said he was right because some of the charges were criminal in nature. He could have reasonably believed criminal prosecution might result from his answers and thus was protected under the Fifth Amendment.

By contrast, in the case of Devine v. Goodstein (1982), an immigrant had complained of rude treatment at the hands of an Immigration and Naturalization Service inspector. The inspector was ordered to write a report about the incident and refused on Fifth Amendment grounds. But here, said a federal appeals court, there was no possible criminal repercussion because a simple act of rudeness is not a crime. Therefore the INS inspector had an obligation to respond to the agency's (purely administrative) inquiry, and the adverse action taken against him by the INS was upheld.

Other Issues

Public employees are frequently shocked to find out they may not be entitled to representation when they are subjects of investigations. Government employees rarely have the right to counsel in an interview. If the official is being interviewed as a witness only (not as a suspect), or if the matter is strictly administrative, or if a decision has been made not to prosecute, he or she has no right to the presence of an attorney or any other personal representative (other than union representation in the case of bargaining unit employees).

Miranda warnings are limited to those situations where the interviewee is "in custody or otherwise deprived of his freedom of action in any significant way," be it in jail, under arrest or in a situation that has all the trappings of a formal arrest. Such situations rarely arise. Only where criminal liability is a possibility and the interview is voluntary in nature will the employee be able to insist on the presence of a lawyer as a condition of his cooperation in an investigation.

Another potential trap exists for the government official who declines to be interviewed or to answer certain questions, even if he's following orders from a superior or the advice of counsel. If it is later determined that he should have cooperated, the disciplinary action against him will be upheld. In the same vein, a superior who tells his employees they do not have to cooperate with investigations or audits may himself be committing actionable misconduct. Public employees generally do have an obligation to assist in their agency's fact-finding process.

Finally, the public employee who offers the "I was conducting my own investigation" story usually gets no further than did "Abscam" defendants in the FBI's investigation into corruption in Congress. If a manager finds himself the subject of an investigation, he should avoid questioning co-workers about the matter and leave the work to the agency's investigators. A manager who attempts to vindicate himself by getting to the root of the allegation usually ends up charged with interfering with an agency investigation in addition to the original charges against him.

To wade successfully through the employee rights quagmire, federal managers who interview employees must understand basic rules of procedure in the areas of warnings and representation. The people being interviewed have an even more compelling need to know their rights. Managers who are familiar with the rules will be more effective when conducting inquiries and will be better protected when they find themselves on the hot seat.