If you are called into an investigatory meeting the statute and applicable collective bargaining agreement provide you with the right to representation. The following is guidance to keep in mind, should you be investigated. You should get a union rep as soon as you know about the interview as the rep can help you through the process as described below.
What you should do when being interviewed and/or investigated:
Ask if discipline will result, or could potentially result from the interview and/or meeting:
- What is the matter under investigation?
- Do you think I was involved in the matter you are investigating?
- Am I the subject or focus of your investigation?
- Am I free to refuse to answer questions and leave this interview without risk of discipline by my agency?
If yes, then it is your option to quickly, but politely, leave the interrogation without answering any questions and immediately secure union representation
Ask whether or not the interview is related to possible criminal misconduct, whether criminal proceedings may result from the interview and/or meeting, or whether you are under arrest?
- If the answer to any of these questions is yes, then ask to see, in writing, the legal authority that keeps you at the interrogation. At this time you are entitled to Miranda warnings. You should then immediately end the meeting and secure competent criminal counsel.
- If the answer to this question is no, but you are not free to go, or face discipline if you leave, you may state: “I am invoking my Fifth Amendment right to silence.”
The Fifth Amendment of the United States Constitution gives you the right to remain silent if you believe that your statements may tend to incriminate you in a potential criminal proceeding. As a federal employee, the right to remain silent, if properly exercised, may provide you with important criminal law protections, but it may also expose you to significant administrative adverse actions. If, after invoking your Fifth Amendment right to silence, you are given written assurance [properly authorized by a U.S. Attorney in that jurisdiction] that your answers can not be used against you criminally – a protection called “criminal use immunity,” and you are ordered to speak under threat of discipline, then you must answer all questions asked or you can be disciplined. At this point, one of two things may happen:
- If you refuse to speak, the Agency may discipline you.
- If you speak, whatever you say, and the fruits of your replies should not be used against you in any criminal prosecution, but the agency may still discipline you for what you say.
- Get ON THE RECORD that the Agency ordered you to talk under threat of discipline. If possible, also get a written statement from your Agency acknowledging that you are being compelled to speak by your Agency and that your answers cannot be used in any criminal charges against you.
Presuming the questioning is not involving criminal activity, you should ask for a union representative to be present during questioning. 5 U.S.C. §7114(a)(2)(B) gives bargaining unit employees the right to have a union representative present during agency investigations if “the employee reasonably believes that the examination may result in disciplinary action against the employee” and if they so request. Under the statute the employee must initiate the request. Under our collective bargaining agreement the Agency is required to tell you that you have the right to union representation.
As stated above if the questioning pertains to criminal activity (real or potential) you have the right to have an attorney present during questioning. As this right is an individual right, and not a union right, it is your responsibility to get an attorney to your interview. Once again, you may insist on this right to an attorney and request that the interview be postponed until your attorney can be present. Make sure such requests are made ON THE RECORD.
If union representation, or legal representation (counsel) is denied for this or any reason, attempt to get ON THE RECORD, the following statements [if the Agency is recording the interview, or taking notes make sure the tape recorder is running when you exercise all of your rights]:
- “I request a union rep.”
- “My union rep is here (or is just outside this room).”
- “May I call in my union rep?”
- “After repeated requests, you have denied me my statutory right to a union representative. I am continuing this interview but have not been given my right to have my union representative present and do not waive any right I may have to union representation or legal counsel.”
If the Agency refuses your right to a union representative, you cannot refuse to continue the interview without placing yourself in jeopardy of possible discipline for refusing to be interviewed. You should ask your union representative to consider filing an unfair labor practice charge or grievance if you are denied the right to union representation.
The Union representative is allowed to take an active role in the investigation or formal meeting. An active role for a union representative includes the right to ask questions, make comments concerning the form of question or statements, clarify facts, elicit favorable facts, assist in producing relevant information, and consulting with the employee being interviewed.
Use extreme caution when talking to management/investigators. For instance, do not let yourself be drawn into an extended conversation with the investigator or any management official at the interview.
Keep all of your answers to questions short, simple, truthful, and responsive. As the Supreme Court made clear in LaChance v. Erickson, 118 S.Ct. 753 (1998), you may be disciplined if you deny alleged misconduct and Agency later learns that your denial was a lie.
The Agency/management does NOT have the authority to:
- Order employees to appear for interviews without a representative or discipline employees if they refuse to appear or speak without a representative; or attempt to coerce an employee to forego union representation during an investigative interview
- Physically threaten or intimidate employees; or
- Designate which representative will attend an investigative interview.
Should you find yourself subject to this type of interview you should contact your rep for assistance. You should never go into one of these interviews alone for several reasons. First, the Agency will have two people present, one of whom will serve as a witness. You need a witness of your own. Second, the old adage of “only a fool has an attorney for him/herself” is particularly true here when you face potential discipline. At least one if not both of the investigators will try to come across as your friend when in fact their goal is to find a sufficient basis to discipline you.