The following question came to us via Ask FELTG:
Is a Federal employee entitled to have an attorney represent them during an Office of Inspector General (OIG) investigation?
Thanks for the question. The answer – barring the existence of a union contract, which by law allows a covered employee to have representation during a Weingarten meeting – is no. Foundational MSPB case law tells us that an employee’s right to counsel is limited to criminal proceedings, and a Federal employee has no right to counsel during an administrative investigative interview unless:
(1) The investigation may result in criminal prosecution, and
(2) The interrogation takes place while the employee is in custody.
Chisolm v. USPS, 7 M.S.P.R. 116, 120 (1981); see also Ashford v. DOJ, 6 M.S.P.R. 458 (1981); Torain v. Smithsonian, 465 F. App’x 945, 948 (Fed. Cir. 2012).
So if the OIG investigation is not about a criminal matter and the employee is not in custody, the agency does not have to grant the employee’s request to have an attorney present.
A recent MSPB case looked at this very issue. Tate v. DOD, SF-0752-19-0692-I-1 (Oct. 3, 2024)(NP). The appellant, who was suspended for 60 days after the OIG found time and attendance violations, argued that he was entitled to be represented by an attorney during the OIG investigation, and because he was denied a representative, the suspension should be reversed. However, he had signed a form prior to the OIG interview, which specifically stated that his answers could be used “in the course of civil or administrative proceedings” but could not be used in a criminal proceeding unless he knowingly provided false information. Id. at 2.
In addition, the appellant was not in custody during the interview. According to the Board:
The appellant has not shown that he was compelled to appear before the OIG Special Agent. That he could have faced an agency disciplinary action for refusing to cooperate with the investigation does not alter that fact. See Weston v. Department of Housing & Urban Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983) (finding that an employee can be removed for refusing to cooperate in an agency investigation if, among other things, the employee is informed that information obtained from the employee will not be used in a criminal proceeding against him) … Nor has the appellant cited to an agency regulation or policy or an applicable collective bargaining agreement provision setting forth a right to counsel in an OIG investigative interview. Thus, we find that the appellant has not shown that he was improperly denied the right to representation by counsel during the OIG investigation.
Id. at 3.
There are lots of rights and responsibilities and dos and don’ts when it comes to agency administrative investigations. Do you know which laws, regulations, and rules apply?
Have a question? Ask FELTG.
The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.
Related training:
- Workplace Investigations Week, February 24-28
- MSPB Law Week, April 7-11