When Employees Take the Fifth

or nearly 30 years, the rule regarding the requirement that federal employees must cooperate in job-related investigations has been relatively clear: Whether the questioning is by an internal investigative unit, such as an inspector general, or by the employee's own superiors, an employee who refuses to answer job-related questions can be disciplined. Even first-time offenders can be fired.

There is, however, a significant exception to the rule. If the matter is potentially criminal, the employee has the right to remain silent under the self-incrimination clause of the Fifth Amendment, which holds that "[N]o person . . . shall be compelled in any criminal case to be a witness against himself." Many inquiries or investigations are inherently noncriminal and thus do not involve the Fifth Amendment: misuse of a telephone, computer or government vehicle; sick leave abuse; insubordination or disrespectful conduct; discrimination; and sexual harassment.

On the other hand, thefts, frauds, threats, assaults and bribery all have criminal overtones, so an employee accused of such offenses can't be forced to cooperate, nor can his refusal be used against him in an administrative proceeding. This is true even if the allegation is a minor one, where it would be highly doubtful that any prosecutor would choose to pursue the case criminally.

However, there is a way around the Fifth Amendment. If an agency can't prove its case from sources other than the compelled statement of the accused employee-by using documents, surveillance tapes, fingerprints or statements of witnesses, for example-or if the "crime" is too small to merit prosecution, the agency can go to the appropriate prosecutor's office and ask him not to take any criminal action against the employee. This grant of immunity converts a criminal case into an administrative one. From that point forward, as long as the employee doesn't lie, his own words can't be used to lock him up. (There is never a right to lie-the immunity from prosecution covers only truthful statements.)

The agency pays a price for granting immunity. Even if the employee confesses to a crime, his words (or anything derived from them) can't be used against him in a criminal proceeding. On the other hand, with the case "de-criminalized" and the Fifth Amendment no longer applicable, any statement he makes can be used to fire or otherwise discipline him in an administrative action.

In practice, the agency's internal investigative unit usually secures a prosecutor's agreement not to prosecute and then orders the employee to report for an interview. After being told that regulations require the employee to answer truthfully, that he may be disciplined for failing to answer, and that lying is a crime, he will be given the following warning: "You are further advised that the answers you give to my questions and any information derived from your answers cannot and will not be used against you in any subsequent criminal proceedings (except, of course, for lying)."

Having received such a warning, an employee who admits to misconduct can be disciplined administratively. Conversely, should he refuse to answer, he can also be disciplined for refusing to cooperate because the promise not to prosecute him effectively "decriminalized" the matter and thus has thrown all rights under the self-incrimination clause out the window. Once a supervisor or investigator mastered these rules, interviews were relative-ly easy to manage. Then on June 13, 2001, the Court of Appeals for the Federal Circuit dropped Modrowski v. Department of Veterans Affairs, 252F.3d 1344 (Fed. Cir. 2001), into the system.

THE MODROWSKI DECISION

In early 1997, the VA began an investigation of Modrowski based on allegations he had been involved in various criminal activities. During this investigation, the agency uncovered information concerning Modrowski's improper involvement in the sales. On July 9, 1997, Ronald Rogala, the VA loan guaranty officer leading the investigation, met with Modrowski and confronted him with evidence of his involvement in criminal and/or ethical violations, and told Modrowski that he should obtain representation. Two days later, accompanied by his union representative, Modrowski again met with Rogala, who tried to question Modrowski about his involvement in the sales to his son-in-law. Modrowski invoked his Fifth Amendment right against self-incrimination.

Rogala visited the U.S. attorney's office, which issued a statement saying it wouldn't prosecute Modrowski. On July 30, Rogala sent a letter to Modrowski on VA letterhead telling him the U.S. attorney was granting him immunity from prosecution related to the sales of the two properties to his son-in-law, that his assertion of his Fifth Amendment rights was therefore unnecessary, and that he was ordered to respond to investigators' questions.

The following day, Rogala met with Modrowski and tried to question him, but Modrowski still refused to talk. At a fourth meeting, on Aug. 6, Modrowski told Rogala he was going to talk to an attorney in two days, and would not answer any questions until then. Rogala never attempted to contact or question Modrowski again. Instead, on Aug. 27, Rogala sent Modrowski a letter proposing that he be removed from his job. Modrowski was charged with deliberately concealing his improper relationship in the sales of both properties, and also with refusing to cooperate in the investigation on both July 31 and Aug. 6.

Modrowski initially responded by asking for time to consult with his attorney, who was on vacation, and later asserted he couldn't be charged with refusing to cooperate prior to Aug. 8, because he had not been able to meet with his attorney before that date. Without anything further than a brief telephone call, on Sept. 29, Montgomery Watson, the director of the VA's Chicago regional office, sent Modrowski a letter saying he was being removed from his job.

Modrowski appealed the firing. He argued that after reading Rogala's July 30 letter, he wasn't clear about the scope of the immunity being granted, and therefore was entitled to continue to refuse to answer questions until he had consulted with an attorney. The Court of Appeals for the Federal Circuit agreed that the immunity issue was anything but clear, particularly since the letter purporting to grant immunity was issued on VA letterhead and signed by the investigating officer, not the U.S. attorney. The letter didn't set out the specific parameters of the immunity, and referred only to the sales but not to the other allegations that had prompted the investigation.

The court found it was reasonable for Modrowski to believe that if he talked about the two sales, his statements couldn't be used against him in criminal proceedings related to the sales, but they could be used against him in other criminal proceedings. This, the court ruled, was a legitimate reason for refusing to answer. The court found that the VA's unexplained refusal to allow Modrowski two days to consult with an attorney was unjustified, arbitrary and capricious.

The court was careful to point out that it was not holding that all federal employees who are asked to respond to questions in an agency investigation have the right to delay proceedings to obtain legal counsel. The court clearly limited its holding to the following facts: The VA was investigating Modrowski on allegations of criminal wrongdoing; the purported immunity grant was ambiguous; any statements obtained from Modrowski under the immunity grant could potentially be used against him in related criminal proceedings; there was no formal assurance from the VA that the criminal portion of the investigation was dead; Modrowski was faced with the dilemma of cooperating or being fired; Modrowski met with an attorney in a timely manner; and his request was reasonable. Nonetheless, the bottom line is that the once-clear rule that a decision not to prosecute means that an employee must then cooperate has been seriously muddied.

FOUR NEW STEPS

• Get the immunity grant in writing from the U.S. attorney's office on Justice Department letterhead.
• Give the employee a specific warning about what the grant of immunity covers.Explain the ramifications of failing to cooperate.
• If the employee is not represented by counsel at the time the warning is given, and if he asks for a short amount of time to consult with an attorney, honor the request. The request for an attorney cannot be used against the employee to support removal for failure to cooperate. Follow up by contacting the employee after the date of the appointment with the attorney, and set up a meeting with or without the attorney present to obtain the cooperation of the employee in the investigation. (The attorney has no right to be present.)
• When other potential criminal charges are still active and there is a possibility, however slight, that the information to be given by the employee could be incriminating on the charges for which immunity has not been granted, if the employee asks to consult with an attorney before answering questions, he must be allowed to do so. These four steps should enable administrative investigators to act lawfully, but how Modrowski plays out in the Merit Systems Protection Board is, of course, a matter of conjecture.