By William Wiley, October 29, 2019
As the inquiry into impeachment continues on Capitol Hill, many talking heads and so-called experts are accusing those running the inquiry of being unfair. We here at FELTG love teaching moments. And the impeachment inquiry arguments provide a great opportunity for us to hammer home some basics about federal workplace investigations.
- Secret interrogations. A number of media personalities are all bent out of shape that the House Intelligence Committee is questioning witnesses in private rather than in a public forum. Well, that’s the first hour of FELTG’s Workplace Investigations program. [Join us for our next Workplace Investigations Week, which will be held November 4-8 in Washington, DC. Register here.] Frankly, you shouldn’t have to attend the training to realize that when you’re investigating possible misconduct involving many witnesses, you don’t want the witnesses getting together and aligning their stories with each other. You want to hear each person’s independent view of events without reliance on what someone else heard or saw. Studies show us that when witnesses are exposed to the testimony of others, subconsciously they often draw details or judgments from that testimony. It’s not necessarily a conscious attempt to mislead. It’s just that we as humans in a neutral setting don’t want to seem out of step with what others are thinking. Were the committee’s investigative sessions open to the public, each witness possibly would have been influenced by the testimony of the previous public witnesses. That would undermine the validity of the investigation process, as we teach in our training classes.
- Refusal to appear. It has been reported that a number of individuals who were subpoenaed by Congress were ordered by their supervisors not to comply with the subpoenas, to refuse to testify, and/or not produce the requested documents. One talk show expert stated that he would always advise his client to obey his supervisor’s order, or risk being fired. Well, that’s just the opposite of what FELTG teaches in its UnCivil Servant seminar for supervisors. If an employee is ordered to do something illegal, he should refuse to do it. As we sometimes say in class, “We can get you another job a lot more easily than we can get you out of jail.” Obedience to a supervisor’s directive does not shelter the employee from criminal prosecution. MSPB will refuse to uphold a removal for misconduct if it finds that the supervisor’s order was illegal. In addition, the Follow the Rules Act, passed in 2017, amended 5 USC 2302(b)(9) to allow an employee to refuse to follow an order he believes violates a regulation or agency rule – not just a statute.
- Preliminary conclusions. As the chairman of the House Judiciary Committee walked out of a closed-door session last week, a reporter called out to him, “Do you have enough evidence to impeach yet?” The chairman, wisely, just kept walking without answering. The very LAST thing you want to do when conducting an investigation into possible misconduct is to reach a preliminary conclusion about what the outcome will be. The science is full of studies, as FELTG teaches in its investigations class, that show that simply suggesting a possible conclusion to an investigator before the investigation concludes skews the investigator’s results toward that conclusion. In one famous study, fingerprint experts who were preliminarily told that the prints being studied “probably” belonged to the suspect were 60% more likely to find that the fingerprints did indeed belong to that suspect. The conclusions of an investigation should not be made until all the evidence is in.
With all modesty, this is basic stuff. FELTG prides itself on getting the basics in place and then building up from there. We don’t do a lot of training on Capitol Hill or in CNN/FOX/MSNBC newsrooms, but we’d be happy to present a session. You can’t really reach meaningful conclusions about the hard bits if you don’t understand the fundamentals. Wiley@FELTG.com