OIG Agent Warnings and Federal Employees

When a federal worker is under investigation by the federal government, they’ll mostly be contacted by the Office of Inspector General informing them of an investigation that is being carried out. In most cases, an OIG agent will call you and ask you for an interview or will give you a visit at your workplace. Once an agent is in contact with you, you will receive a warning about the information you’ll give while answering questions. A federal employee who is under investigation by the Office of Inspector General should be worried that they may lose their job due to a possible administrative action and at the same time, they may face charges for a criminal case. There is a close connection between these two consequences. The agent investigating you will have a significant say on whether you will lose your job and face criminal charges.

In most cases, when a federal employee engages an OIG agent, there are two kinds of warnings that will be laid out. These two warnings are very important and need to be taken with the seriousness. It is also important to note that there is a difference between these two warnings and the difference says a lot about the investigations and the federal employee. The first one is called Garrity warning. It is derived from the Supreme Court case “Garrity v. New Jersey.” The other warning is known as Kalkines warning, derived from a case heard at the Court of Federal Claims named ”Kalkines v. United States.”

Before an interview which involves investigations, it is common for law enforcement agencies to inform the accused of the Miranda warnings. Simply, Miranda warnings say that “you have the right to remain silent, and anything that you say can be used against you.” It continues to outline that you have the right to legal representation by a lawyer and if you cannot hire your personal lawyer, they can provide you with one. Anytime a law enforcement agent attempts to do something equivalent to arresting or actually arresting someone; they are supposed to read out the Miranda warnings.

When many people are dealing with an OIG agent, they tend to be confused since they do not understand the ground rules involved in such a case. Many people are accustomed to the Miranda warnings since they are mainly carried out when someone has been booked in a police station. For an OIG agent, scheduled interview can happen without being booked in a police station, so how are you supposed to respond to such an interview.

Garrity warnings

Under this warning, a federal employee is asked to provide information, and that relates to the investigation. The interview is conducted voluntarily, and therefore you are not supposed to answer to questions that may make you a target in the investigations. If you refuse to answer the questions, no disciplinary action can be taken against you. However, you should understand that your silence may be misconstrued as evidence of your involvement. Any information provided can be used as evidence in case of administrative proceedings or court when facing criminal charges.

Under Garrity warnings, the OIG agent has the liberty to use the information provided, in a criminal case. So, if you are worried about the consequences of possible criminal charges or administrative action, by hearing this warning, you can consider being careful with what you reveal to the OIG agent.

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Kalkines warning

If you are being investigated for administrative or internal matters, you will be asked questions that relate to your official duties. You are required to answer these questions in the best way you can. If you fail to answer the questions truthfully, disciplinary action such as dismissal can be taken against you. The information revealed can be used as evidence in administrative proceedings. However, the information you reveal and that derived from the answers you give cannot be used in criminal proceedings. However, there is a caveat that if you knowingly and willingly give false statements, such information can still be used in criminal charges.

Legal Scenario: What Would You Do?

Scenario

You receive a phone call from someone identifying themselves as an OIG agent who says they need to interview you about discrepancies in your department's travel reimbursement records. They tell you the interview needs to happen immediately and that refusing to cooperate could result in disciplinary action against you.

Am I required to sit down for an interview with an OIG agent right away, and can I really face consequences for saying no?

Attorney's Answer

Federal employees generally have the right to consult with an attorney before submitting to an OIG interview, and you should exercise that right immediately. Under Garrity v. New Jersey (1967), if you are compelled to answer questions under threat of termination, any statements you make may be protected from use in criminal proceedings against you. However, you must understand the distinction between a Garrity warning and a Kalkines warning — a Kalkines warning means you can be fired for refusing to answer, but your statements cannot be used criminally. Contact a federal employment attorney before the interview so they can advise you on your rights and potentially be present during questioning.

This is general information only. Contact us for advice specific to your situation.

Kalkines warning is normally arrived at after an OIG agent has liaised with a federal prosecutor to arrive at the decision that information revealed may not be needed in a federal criminal case. The unfortunate thing about Kalkines warning is that your job is on the line in case you fail to co-operate.