OIG Agent Warnings and Federal Employees

Federal employees who are the subject of an Office of Inspector General - or OIG - investigation, are often called in for an interview with an OIG agent. When a federal employee is called in to an OIG interview, they are given a warning about the statements that they make.

A federal employee under investigation has to worry about two things - a possible criminal case and a possible administrative action against his or her job. Each is a little different, and OIG agents investigate both.

There are two kinds of warnings that a federal employee sitting down with an OIG agent will hear. And the differences between them are important and can say a lot about what's going on with the OIG investigation and that federal employee. The first is called a Garrity warning (after the Supreme Court case Garrity v. New Jersey).The second warning is called a Kalkines warning (named after Kalkines v. United States - a case from the Court of Federal Claims).

Most folks are familiar with the idea of a warning from law enforcement before an interview because they've heard of a Miranda warning. If you're given a Miranda warning,  you're told that you have a right to remain silent, that anything you say can be used against you, that you have a right to a lawyer, and that if you can't afford a lawyer one will be provided for you.

Miranda warnings are supposed to be read whenever the police have arrested someone - or done something that's basically equivalent to arresting them.

Federal employees are in a different position when an OIG agent schedules an interview with them than if they were sitting in a police station after having been booked. But, still, because OIG agents have power relating to federal employees' jobs, when an OIG agent comes in to ask a federal employee questions, the employee may not feel like he or she has the right to say no. She may not know what the ground rules are, and because of that, may be too scared or freaked out by being questioned by the OIG agent that she doesn't ask.

Garrity warnings are supposed to fix that. One version of a Garrity warning is this:

You are being asked to provide information as part of an internal and/or administrative investigation. This is a voluntary interview and you do not have to answer questions if your answers would tend to implicate you in a crime. No disciplinary action will be taken against you solely for refusing to answer questions. However, the evidentiary value of your silence may be considered in administrative proceedings as part of the facts surrounding your case. Any statement you do choose to provide may be used as evidence in criminal and/or administrative proceedings.

The person who hears the Garrity warning learns, by virtue of the Garrity Warning, that the OIG agent may or may not use what they say in a criminal case. If a federal employee is worried about both administrative action and a possible criminal action, hearing this warning should, if they're being careful about what they say,  probably decide not to talk to the OIG agent.

Kalkines warnings are different. Here's one version of a Kalkines warning:

You are being questioned as part of an internal and/or administrative investigation. You will be asked a number of specific questions concerning your official duties, and you must answer these questions to the best of your ability. Failure to answer completely and truthfully may result in disciplinary action, including dismissal. Your answers and any information derived from them may be used against you in administrative proceedings. However, neither your answers nor any information derived from them may be used against you in criminal proceedings, except if you knowingly and willfully make false statements.

Normally, a Kalkines warning is only given after an OIG agent talks to a federal prosecutor who makes a decision not to base a federal criminal case on the thing that's being investigated. But, the downside is that you have to grant an interview to the OIG agent if they issue a Kalkines warning as a condition of your employment. If you don't, they can discipline or fire you.