With the threat of broad and ill-defined “audits” in the Federal government comes the threat of investigatory interviews. Answers to questions during an investigation may be used against a federal employee to compromise her rights and benefits under Federal law. Prior to responding to questions, it is important for a federal employee to understand the nature of the Federal government’s investigation and her rights and obligations incidental to that investigation.
In general, the obligation of a Federal employee to answer her employer’s work-related questions is dependent upon whether there is a substantial risk that the employee may be subject to criminal prosecution for actions connected with the subject of her employer’s inquiry. A Federal employee cannot be discharged simply because she invokes her Fifth Amendment privilege against self-incrimination in refusing to respond. See Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968). Conversely, a later prosecution cannot constitutionally use statements (or their fruits) coerced from the employee by a threat of removal. See Garrity v. New Jersey, 385 U.S. 493 (1967). However, the Federal government is not wholly barred from insisting that a federal employee answer its questions. Specifically, the Federal government can remove a federal employee for not replying if she is adequately informed that she is subject to discharge for not answering and “assured of protection against use of his answers or their fruits in any criminal prosecution.” Kalkines v. United States, 473 F.2d 1391, 1394 (Ct. Cl. 1973). It is important to note that your answers during administrative investigations may be used against use in adverse action (i.e., disciplinary) proceedings.
The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends or passes new statutes, Federal agencies issue new regulations and courts issue new interpretations of the law. THE JEFFREY LAW GROUP, PLLC does not guarantee the accuracy of the legal information in this document. THE JEFFREY LAW GROUP, PLLC recommends you consult a licensed attorney of the firm who is knowledgeable about the area of law in question before you take action to address a legal matter: www.jeffreylawgroup.com or 202.312.7100.