By Ann Boehm, March 19, 2020
Unless you’ve been hiding under a rock for the last 30 years, chances are that at some point you have watched an episode of Law and Order. (And if you haven’t seen an episode, I’m pretty sure there’s one playing on some channel at this very minute.)
To run for three decades, the show must be onto something, and it is. The format. After the crime is discovered, the first half hour is devoted to an investigation by the detectives. The second half focuses on the criminal trial.
Personally, I generally lose interest once the detectives are done. The investigation part is much more interesting than the trial part. (Perhaps becoming an attorney was a bad idea for me.) The investigation part is also the most important. If the detectives don’t do their job right, the lawyers can’t do their job and convict the bad guys.
This is true in the world of federal misconduct. A good investigation makes all the difference.
So, if a good investigation makes all the difference, why do I so often get blank stares at training sessions when I ask, “Who is responsible for investigating misconduct?” That concerns me. It may indicate a couple of issues: The people who do the investigating are not properly trained (because no one knew they were supposed to be the ones investigating); or, even worse, the agencies aren’t investigating the misconduct properly before disciplining employees.
When I teach our Investigations course, I always emphasize that the point of investigating is to find the facts, not “get” the employee. Employees who allegedly engaged in misconduct should want the matter to be properly investigated.
In my experience, a lack of investigation can result in improper discipline, and a good investigation can clear an innocent person. And of course, a good investigation will support proper disciplinary action so that the agency will prevail in any grievance, arbitration, or EEOC or MSPB litigation.
Here are two anecdotes. I have a friend who was accused of having improper contact with a contractor. She received a letter of reprimand. No one investigated the alleged misconduct – they just issued the letter. She grieved it and demonstrated she did nothing wrong. It put her through tremendous angst and a lot of effort to clear herself after the issuance of the reprimand. The agency had to spend time considering a grievance and ultimately rescinding the letter of reprimand. A good investigation beforehand would have saved the agency time and effort and the employee stress.
In another instance, I had a friend accused of pretty serious criminal misconduct. Fortunately, the agency conducted a top-notch investigation and quickly determined there was no misconduct. The people making the misconduct allegations were misinformed. The employee was cleared.
The detectives on Law and Order have a harder job than agency misconduct investigators.
First, they have to get enough evidence to meet the criminal burden of proof – beyond a reasonable doubt. The burden of proof for federal administrative cases is preponderance of the evidence or “more likely than not.” The federal administrative investigator also is not bound by the many constitutional restrictions and rules of evidence that often doom the Law and Order investigations.
But investigations must be done, and they must be done correctly.
A note to agencies: Make sure you have policies that address misconduct investigations. Make sure it’s clear who is to conduct those investigations. And make sure the investigators know how to investigate.
Investigations are the fun part. They will either assist the agency with proper discipline or clear a wrongly accused employee. Wouldn’t you rather be Detective Lenny Briscoe than District Attorney Jack McCoy? And if you are Jack McCoy, don’t you want the talents of Lenny to help you get the best information for your case?
Good investigations benefit all! Boehm@FELTG.com