IG and DS Investigation Guidance

Updated June 2016

Introduction

This advisory was prepared by AFSA to apprise Foreign Service employees of their rights and responsibilities during Diplomatic Security (DS), Office of the Inspector General (OIG), Office of Security, and other types of interviews and investigations. While this guidance focuses on DS and OIG interviews, many of the rights (such as the right to representation) are applicable to other types of interviews (e.g., those conducted by the Office of Civil Rights).

Summary

Employees who are contacted by DS or OIG should attempt to ascertain whether they are the subject of the investigation and what type of interview (i.e., compelled or voluntary) is being undertaken before meeting with the investigating official. At the beginning of the interview, employees should be given a written warning and assurances form disclosing the nature of the interview (voluntary or compelled). In both voluntary and compelled interviews, the employee’s statements may be used to support disciplinary action and/or security clearance suspension/revocation. In a voluntary interview, any statements the employee makes (whether truthful or not) may be used against him or her in a criminal proceeding. In a compelled interview, the employee’s statements may only be used in a criminal proceeding if the employee lies.

Employees have the right to representation during both types of interviews. We strongly advise that employees seek guidance and representation from AFSA or private counsel prior to agreeing to any interview.

Right to Representation

Under the Foreign Service of 1980, as amended, Foreign Service employees who are in AFSA’s bargaining unit have the right (known as the “Weingarten Right”) to be represented by AFSA in an interview if they reasonably believe that it could result in disciplinary action and they request representation. Weingarten rights are not like Miranda warnings. The investigating official is not required to inform employees of this right at the beginning of each investigation. When employees invoke their Weingarten Right, the investigating official must either allow a reasonable period of time for a union representative to attend the interview (3 FAM 4322.3(h)) or advise the employee that it does not wish to wait until union representation is available and plans to carry on its investigation without interviewing the employee. The employee then has the choice about whether to stop the interview or proceed without representation. We strongly advise employees to stop the interview and contact AFSA immediately.

All employees, regardless of bargaining unit status, have the right to have a representative present during a DS, OIG, or other interview (3 FAM 4322.3(g) and 4325.2). AFSA attorneys are available to represent members in such interviews. In the alternative, employees may retain private counsel to represent them. Depending on the circumstances, we may also represent employees in interviews relating to the performance of their duties conducted by outside law enforcement agencies. If an employee is being interviewed while serving abroad, AFSA will arrange representation by telephone.

The presence of an AFSA representative during interviews serves several useful purposes. We ensure that the investigator affords the employee all of his or her rights and conducts the interview in an appropriate and professional manner. We confer privately with the employee, if necessary, to answer his/her questions or provide guidance. We take contemporaneous notes during the interview and review sworn statements that may be requested or required.

When allegations against employees could result in criminal prosecution, we strongly recommend that employees retain an experienced criminal attorney. AFSA has a list of criminal attorneys in the Washington, D.C. area posted on our website. In many cases, these attorneys can represent you even if you are overseas.

Too often, employees meet with investigators without proper preparation and guidance and the consequences can be severe (criminal indictments, loss of security clearance, and/or disciplinary action, including separation for cause). We strongly encourage you to use the resources that AFSA makes available to its members.

Right to Know the Nature of Charges

3 FAM 4322.3(d) states that investigating officials should give employees appropriate notice that an administrative investigation has been opened against them, unless such notice might compromise the inquiry. Employees who have been contacted for an interview should attempt to gather as much information as possible from the investigator regarding the nature of an interview, including whether they are the subject of the investigation and whether the interview is voluntary or compelled, before the personal interview. AFSA can request this information on your behalf.

Right to Written Warning and Assurances

The investigator should, at the outset of the interview, advise the employee in writing: whether he/she is a subject of an investigation or merely a witness; the subject matter of of the inquiry being conducted; (and whether the investigation could lead to criminal and/ or administrative action. DS and OIG have standard written warnings for each type of interview. Employees are entitled to a copy of the warning form and should request one.

During a voluntary interview, anything the employee says can be used against him/her in a criminal proceeding. For this reason, the employee can decline a voluntary interview, refuse to answer particular questions, and/or terminate the interview at any time. During a compelled interview, the employee must answer all questions relating to the scope of his or her employment but nothing the employee says can be used against him/her in a criminal proceeding unless he/she lies during the interview. While in this situation an employee's truthful responses cannot be used in a criminal proceeding, they can be used against him or her in a future civil proceeding or in an administrative case (e.g., discipline or security clearance revocation). As noted above, if an employee knowingly provides false statements to a law enforcement officer, he or she can be criminally prosecuted. Sometimes, the allegations are relatively minor, but the employee is then accused of lacking candor during the investigation and the consequences can be severe.

Recording of Interview

As of June 27, 2016, DS’s Office of Special Investigations (OSI) has the authority to overtly audio/video record interviews conducted in the United States of employees who are the subject of both criminal and non-criminal investigations. This represents a major change from past practice, in which DS had to obtain the employee’s permission to record the interview. Employees are not entitled to a copy of the recording and may only receive a copy if they are proposed for adverse action (such as a suspension or separation for cause or revocation of their clearance) or through the discovery process in a criminal proceeding. In certain circumstances, AFSA has the right to review and take notes of the recording. See VANCE MOA here.

In those offices where the investigating official must still obtain permission prior to recording the interview, we encourage employees to discuss with AFSA the pros and cons of consenting to a recorded interview before they do so.

Preparation for the Interview

It is important to realize that an interview requires preparation. If the employee knows the subject matter of the investigation prior to the interview, he or she should refresh his or her memory by reviewing pertinent documents, if appropriate. The employee may also want to bring copies of relevant documents to the interview to leave with the investigator.

Participation at the Interview

When participating in an interview, employees should take the following steps to limit possibly damaging testimony. Making false statements to law enforcement officers is a criminal offense. Employees should only testify to facts known to them. Do not speculate! Honest mistakes of fact on the employee's part during the course of the interview may be subsequently misinterpreted by the investigator as a lack of candor. When answering questions, an employee should distinguish between what he or she knows first-hand and what he or she has been told by others. In addition, if an employee is making a statement based on records compiled by someone else, the investigator should be told this. If the investigation may lead to criminal charges, the employee may invoke the protection of the Fifth Amendment which allows the employee to refuse to provide information which may be used against him or her in a criminal proceeding.

Sworn Statement

The investigator may prepare a written statement from the answers that the employee has given during the interview which the employee will be asked to sign. Employees may also be offered the opportunity to prepare their own sworn statement following a voluntary interview or they may be compelled to provide a sworn statement following a compelled interview. Employees should ensure that his or her oral statements during the interview are not vague and verify that the investigator's written statement accurately reflects the employee's statements. A person should not sign a statement containing blanket legal conclusions. Any statement such as "all laws, regulations, and policies have been complied with" is a particularly dangerous statement to sign since it is not clear which regulations are at issue in the investigation. If accurate, the employee should state that he or she believes a certain policy or regulation has been adhered to and the relevant policy or regulation should be identified, to the maximum extent possible. It is critical that the employee carefully read the statement prior to signing it to ensure that his or her statements have not been misinterpreted. Employees are entitled to a copy of their sworn statement and we encourage them to request one at the conclusion of the interview. We also encourage employees to discuss the pros and cons of a voluntary sworn statement with AFSA and to consult with AFSA prior to signing any sworn statement.

For More Information

The above information provides general guidance for all employees interviewed by DS, the OIG, or other agency. Questions regarding specific cases should be referred to AFSA's Labor Management office at (202) 647-8160 afsa@state.gov or email member@afsa.org.