Attachement_2-_Investigation_Guide_(FCG)_Draft_2019__(with_Edits).docx

FEDERAL CONSULTING GROUP

INVESTIGATOR GUIDE TO CONDUCTING ADMINISTRATIVE INVESTIGATIONS

June 2019

Federal Consulting Group Department of the Interior 1849 C Street, NW Washington, DC 20240

TABLE OF CONTENTS

Table of Contents

Appendix A: Investigative Plan Checklist Appendix B: Letter to Witnesses – Notification of Investigation Appendix C: Employee Authorization for Recorded Interview Appendix D: Employee Testimony Rights and Obligations Appendix E: Interview Tips Appendix F: Sample Evidence Chart

1. Preamble This Investigator Guide is provided by the Department of the Interior (DOI) Federal Consulting Group (FCG). It provides information on procedures to carry out administrative investigations for third-party investigators with whom FCG contracts to conduct such investigations (contract investigators). This Guide provides guidance to investigators on the general expectations FCG has for the scope, content and depth of inquiry conducted by the investigators, the manner in which the investigation is conducted, and the reports the investigators complete. It also assists contract investigators in understanding the considerations and procedures that shape FCG management’s retention of their services.

This Investigator Guide is intended for experienced investigators, and as a result, it does not provide detailed instruction on how to conduct every phase of an investigation. Yet, FCG recognizes that questions may arise when an investigator prepares to conduct an investigation for FCG, or in the course of the investigation. To the extent that questions arise that are not addressed by this Guide, investigators are encouraged to contact the employee relations specialist who is the primary contact for the investigation (ER POC). ER POCs are encouraged to consult with their Bureau/Office headquarters employee relations lead and the Office of the Solicitor.

2. Pre-Investigation Preparation A. Investigative Plan Before the contracted investigation begins, the Authorizing Official (the management official who authorized the administrative investigation) will provide the investigator with a written summary of the allegations. It is vitally important that the investigator understand the allegations he or she is investigating so that he or she can develop a proper investigation strategy. If the investigator does not understand the allegations, or if, as the investigation proceeds, the allegations do not seem to provide the investigator with enough direction, the investigator should consult with the ER POC.

The ER POC assists the Authorizing Official, who is generally the supervisor or manager who oversees the organization where the allegations reside. As described in Section 1.B., the Authorizing Official has also generally consulted with an attorney from the Office of the Solicitor (SOL) by the time the investigator is engaged. The ER POC, the SOL attorney, and the Authorizing Official are the parties normally included in initial calls or meetings with the investigator at the start of the investigation. The ER POC serves as the investigator’s primary contact for any questions during the investigation, and consults with the Authorizing Official and SOL attorney as necessary to obtain relevant information.

The end result of an investigation typically reflects the amount of preparation put into the investigation. Creating an investigative plan before conducting the investigation will provide a road map for the investigator. The investigative plan ideally contains what facts are known at that point, what standards and proof analyses are at issue, what evidence the investigator will need to gather, and the deadlines by which the investigator plans to accomplish key tasks. The investigative plan must also include the date that the first draft of the fact-finding report (FFR) is expected to be delivered to the ER POC and Authorizing Official for review. Appendix A contains a checklist of the information that should be contained in an investigative plan.

The investigator is required to develop an investigative plan before commencing the investigation. The investigator must provide the investigative plan to the ER POC for review prior to beginning the investigation. The ER POC will consult with the SOL attorney and the Authorizing Official as necessary before approving the investigative plan.

Once the investigative plan is approved, the investigator will report weekly to the Authorizing Official (via the ER POC) on their status toward meeting the expected FFR first draft delivery date identified in the investigative plan. Investigators must request an extension from the Authorizing Official (via the ER POC) one week in advance of the FFR first draft due they if they are experiencing delays, providing an explanation of what is causing the delay and how long it is expected to be.

As described more fully below, it is crucial that the investigator remain neutral. Therefore, the goal of the investigation should not only be to collect evidence to prove the allegations, but also to collect evidence that could potentially disprove the allegations. When investigating sexual harassment allegations, it is significant, for example, for an investigator to determine not only that a romantic overture occurred, but also to uncover whether it was invited or solicited. Similarly, for allegations of a physical nature, it would be important to uncover that an aggressive act was taken in self-defense, or that an employee’s action was inadvertent, rather than intentional. Accordingly, the investigator should develop the investigative plan so as to proceed in a neutral fashion; the plan should not pre-suppose a particular outcome.

B. Framing the Allegations Assisted by the ER POC and the SOL attorney, the Authorizing Official will frame the allegations before contacting the investigator. The Authorizing Official will seek to give clear allegations to the investigator to provide the investigator a clear direction for the investigation. Allegations should precisely identify who the subject(s) is/are, what the person(s) is/are alleged to have done, what standard was allegedly violated, and when the wrong allegedly occurred. The investigator may need guidance regarding potential misconduct charges, which can determine the factual elements that the investigation seeks to establish.

In addition to collecting evidence that may prove or disprove the substantive facts of any potential misconduct charges, the investigator should also collect evidence that will assist the Agency’s proposing official in conducting the penalty analysis required by the Merit Systems Protection Board in its landmark decision, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). The Douglas case established criteria that the Agency should consider in determining an appropriate penalty to impose for an employee’s misconduct. The twelve factors are commonly referred to as “Douglas Factors.” Thus, investigators should be prepared to collect testimonial and documentary evidence on such information as whether the suspected conduct was intentional or inadvertent, the supervisor’s reaction to the suspected conduct (e.g., has trust in the employee waned), whether there is public knowledge or media attention regarding the suspected conduct, whether circumstances existed that might mitigate (i.e., partially or totally excuse) the conduct, etc.

C. Research the Law, Rules, and Regulations Governing the Allegations

The investigator must research and understand the elements of proof of the appropriate conduct charge(s) before conducting the investigation. For example, if the allegation at issue is sexual harassment, the investigator must research the elements of the charges of sexual harassment and/or inappropriate conduct so as to understand what the Agency must ultimately prove if those charges are later brought. In addition, the investigator must be familiar with any Agency policies or requirements that may relate to the alleged misconduct. With that knowledge in hand, the investigator will better understand what evidence would be the most relevant to the charges. The investigator will also be able to gather evidence that would indicate whether the subject of the investigation was on notice that his or her actions were a violation of law, regulation or policy.

D. Witness Cooperation The investigator should work through the ER POC to make witnesses available for interviews. Most witnesses are willing to cooperate with an investigation. In the case of the unwilling witness, the means and ability to require their cooperation will vary depending on the employment status of the witness. If the witness is a federal employee, the witness’s supervisor can order the witness to participate in the interview. The investigator or the ER POC should issue a standard letter to the employee who raised the allegations of misconduct, to the employee who is the subject of the investigation, and to any other witnesses informing them of the investigation, the investigator’s role in conducting the investigation, and the witness’s rights and obligations (i.e., a Notification of Investigation Letter). The letter should be from the Authorizing Official, and can be transmitted in hard copy or electronically. A sample is attached in Appendix B. In addition, employees who are the subject or potential subject of the investigation should be informed of this fact, as well as the general nature of the alleged misconduct, before the interview takes place.

Federal employees have a duty to cooperate with administrative investigations, and can only refuse to answer questions that may incriminate them in criminal conduct (see Section 3.B. below on witness warnings). If a witness who is a federal employee refuses or expresses a reluctance to participate in the interview, the investigator should consult with the ER POC and the SOL attorney to obtain guidance as to next steps.

Witnesses who are not employed by the government, including contractor employees, cannot be ordered or directed to cooperate with the investigation. The investigator can always invite non-government witnesses to participate in an interview, but if the person refuses, the investigator has no power to make them cooperate. Like all other witnesses, witnesses who are not government employees can refuse to answer questions that may incriminate them in some criminal conduct.

If a witness is a minor (usually defined as people under age 18), the investigator must first consult with the SOL attorney before contacting the witness. Minors may fall into the category of non-employee witnesses. Additionally, even if a minor agrees to testify, the investigator must first obtain the consent of a parent. A parent or guardian must be present for all interviews of minors. Like all other witnesses, minors can refuse to answer questions that may incriminate them in some criminal conduct.

E. In Person Versus Telephonic Interviews

If at all practical, the investigator should interview witnesses in person to observe their demeanor, which can be an important indicator of truthfulness. However, if the witness is located at another office or location, the investigator has several options:

(1) personally interview the witness at their location;

(2) delay the interview until the witness returns, if their absence is temporary and time permits;

(3) conduct a telephonic interview;

(4) conduct the interview by video teleconference, Skype or similar applications;

(5) mail, e-mail or fax the witness written questions and have them provide a sworn, written response; or

(6) ask the witness to provide a sworn statement.

The investigator should note in his or her report why an in person interview was not practical or possible.

If a telephonic interview is conducted, the investigator should apply the same considerations to determining whether the interview must be recorded as described below for in- person interviews (see Section 1.F.). Also, like in-person interviews, the investigator should ask the witness to declare under penalty of perjury that the statements made during the interview are true and correct (see Section 3.A.). The investigator should take detailed notes and then summarize the witness’s testimony in a Witness Statement. For recorded telephonic interviews, the investigator must have the witness’ recorded statements transcribed. The witness should then be asked to sign and date the summarized or transcribed statements.

F. Documenting and Recording Witness Testimony

The decision regarding how to chronicle witness testimony must be made based on consultation with the Authorizing Official, the ER POC, and the SOL attorney. For most investigations that do not involve serious misconduct, it may be sufficient for the investigator to take detailed notes and then summarize the witnesses’ testimony in a Witness Statement, signed under penalty of perjury by the witness. It is advisable for the investigator to review the entire Witness Statement with the witness, either in person or on the phone, before asking the witness to sign the document, to ensure that the employee has fully reviewed it. If the witness wants to make substantive changes to the Witness Statement, the investigator must reflect the requested changes in the case file and in the fact-finding report.

Each Witness Statement that is prepared after a non-recorded interview must include the following post-interview certification with a space for the witness to sign and date the document:

I have reviewed the Witness Statement prepared by the investigator or his/her agent based on my interview. I certify that the testimony is true and correct to the best of my knowledge and belief. I further certify that the Witness Statement does not mischaracterize or misstate my testimony, and no key information is omitted.

For investigations involving serious matters, all significant witness interviews will most likely be recorded. Such investigations include allegations of severe misconduct (e.g., allegations of physical contact), potentially wide-ranging misconduct (e.g., involving multiple employees making similar allegations), or potentially high profile matters (e.g., because they involve a member or members of the Senior Executive Service (SES) or issues of Congressional interest).

For interviews that warrant recording, the investigator must arrange to transcribe the testimony of the person who reported the misconduct, the subject of the investigation, and all key witnesses. In lieu of a court reporter, digital recorders and computer software can make transcription easier and less expensive, and are now considered the norm in investigations. The investigator should arrange for a court reporter or digitally record with an approved digital recording device any witness interviews that are significant to the investigation. A sample form Employee Authorization for Recorded Interview is attached in Appendix C and should be issued to each witness when the interview is recorded. Unless the interview will be conducted in a state in which recording is permissible with one-party consent, the investigator must proceed without recording the interview if the employee does not consent to being recorded. In such circumstances, the investigator should take notes and prepare a Witness Statement instead.

However, the investigator must note in the Fact-Finding Report that the employee withheld consent for recording the interview. The ER POC should consult with the SOL attorney if there is a question concerning whether the interview may be recorded in a particular state.

In instances when the interviews are recorded by a court reporter, the court reporter should ensure that the witness is sworn in under oath before the interview commences. When the interview is recorded by someone other than a court reporter, the investigator should ensure that each witness whose interview is recorded signs and dates the Employee Testimony Rights and Obligations form in Appendix D at the beginning of the interview.

A determination should be made during or before drafting the Investigative Plan whether verbatim, transcribed testimony is needed from each or any witnesses interviewed. Summarized testimony carries less evidentiary weight because it is essentially a third party translation to the reader of the report. Yet, recording testimony increases costs, and it has the potential of creating a barrier to open communication by the witness. If the need for recording interviews arises partway through the investigation, investigators must contact the contract lead and FCG, who will then contact the ER POC for coordination to approve any potential increase in scope.

G. Privacy Act Statement

Before testifying, all witnesses should receive a Privacy Act statement. The Privacy Act of 1974, 5 U.S.C §552a, provides protection to individuals by ensuring that personal information collected by Federal agencies is limited to that which is legally authorized and necessary and is maintained in a manner which precludes unwarranted intrusions upon individual privacy.

Pursuant to 5 U.S.C. §552a(e)(3), agencies are required to provide a Privacy Act Statement to all persons asked to provide personal information about themselves, which will go into a system of records (i.e., the information will be stored and retrieved using the individual’s name or other personal identifier such as a Social Security Number). The Privacy Act statement included in the Employee Testimony Rights and Obligations in Appendix D meets this purpose.

3. Witnesses’ Rights and Obligations A. Witnesses Must Make Their Statements Under Penalty of Perjury All witnesses must be required to declare under penalty of perjury that the statements made during the interview are true and correct by signing the Employee Rights and Obligations document in Appendix D at the start of the interview. See 28 U.S.C § 1746 (“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on (date)(Signature)”). Where the testimony is not electronically recorded by a court reporter, the investigator must also request each witness to sign and date their summarized testimony. This puts the witness on notice that the investigation is a serious matter and lets the witness know he or she could be criminally liable for failing to tell the truth.

B. Advising Witnesses of their Rights

i. Weingarten rights During any investigation, advising subjects or witnesses of their rights may become an issue. Weingarten rights apply if the witness is represented by a labor organization (union). The Supreme Court case of National Labor Relations Board v. Weingarten, decided in 1975, established this basic entitlement and the procedures for when and how union representatives may participate in investigatory examinations. This entitlement was written into the Federal Service Labor-Management Relations Statute with the passage of the Civil Service Reform Act in 5 USC 7114(a)(2)(B). Under Weingarten, a bargaining unit employee (BUE) has the right to union representation at any investigatory examination conducted by an agency representative if the BUE reasonably believes that the examination may result in disciplinary action against the BUE and the BUE requests representation. The BUE can request union representation before or at any time during the interview. If a BUE requests representation, management must either grant the request and (within reason) delay questioning until a union representative arrives; deny the request and end the interview immediately; or give the BUE the firm choice of continuing the meeting without representation or ending the interview.

While management need only inform its covered employees of their Weingarten rights annually, if it fails to do so, management may be required to inform each covered employee of their union representation rights before each investigatory interview. The investigator should, at the time of scheduling an interview with a witness, determine through the ER POC whether the witness is represented by a union and, if so, whether the witness has received annual notice of his or her Weingarten rights. In addition, the investigator should determine if there are any other specific requirements that have been established through collective bargaining.

ii. Garrity and Kalkines Warnings

If the investigator comes to believe that the conduct being investigated may be criminal in nature, the investigator should immediately consult with the SOL attorney as to appropriate next steps. It may be necessary to provide the witness with Kalkines or Garrity warnings. These warnings are described below for informational purposes, but the investigator should not administer these warnings without consulting with SOL.

Kalkines and Garrity warnings are advisements of rights to federal employees during internal investigations. An employee issued a Garrity warning prior to being interviewed in an administrative investigation may not be disciplined for refusing to answer questions, but the government preserves its right to use any statement the employee voluntarily makes against him in a subsequent criminal prosecution. If the agency issues a Kalkines warning, on the other hand, the government waives its right to use the employee’s voluntary statements in a criminal prosecution, but preserves its right to discipline an employee for refusing to cooperate in the investigation.

Thus, a Kalkines warning compels subjects to make statements or face disciplinary action, but also provides suspects with criminal immunity for their statements. Due to the immunity conferred, neither an Agency nor its investigator may issue a Kalkines warning without approval or prosecutorial declination by the United States Attorney’s Office and the state or local prosecutor.

Whenever there is a question about whether an individual should be read his or her rights, the investigator should consult with the SOL attorney. If Garrity or Kalkines warnings seem appropriate based on the anticipated testimony, the Authorizing Official should be notified. It may be that the investigation is more appropriately handled by the DOI Office of Inspector General or a law enforcement agency.

iii. Protection from Retaliation

Employees are protected from retaliation for participating in agency investigations. The Authorizing Official should inform witnesses of this protection in the Notification of Investigation letter sent to witnesses, a sample of which is attached in Appendix B. Investigators should also remind witnesses of this protection at the beginning of the interview, and ask witnesses to notify the investigator or the Authorizing Official if they have any concerns about retaliation for participating in the investigation. Investigators should also remind supervisory employees who are witnesses or are the subject of the investigation of the prohibitions against retaliation and interference with other witnesses’ participation in the investigation.

C. Third-Party Presence during Interviews An interview will normally only involve the investigator and the witness. Sometimes an HR employee appointed to assist the investigator will accompany the investigator during interviews. However, no one but the investigator is allowed to ask questions. The investigator should also document in the fact-finding report (FFR) why the third party was present.

There may be certain situations when labor union representatives may be present for an examination of an employee who is represented by a union. The investigator should work closely with the SOL attorney to determine whether a labor union representative should be allowed to be present during an interview and to define the participation that representative may have during the interview.

D. Attorneys and Other Personal Representatives Alleged victims, witnesses, and subjects may consult with their attorneys regarding an administrative investigation interview, but most do not have the right to have an attorney present during interviews. As a general rule, third-party representatives for witnesses and subjects are not permitted to be present during investigation interviews. As described above, exceptions may exist for witnesses who are covered by a union and have invoked their Weingarten rights. The investigator should consult with the SOL attorney when questions arise regarding witness representation.

E. Confidentiality Communications made to the investigator during an investigation are not privileged. Witness testimony can be revealed on a need-to-know basis, so the investigator should never promise confidentiality to a witness. However, the disclosure of these communications will be limited. The FFR must be marked “For Official Use Only” and treated as closely-held information. The Privacy Act statement included in Appendix D notifies witnesses of the appropriate uses of the information.

4. Interviewing Witnesses

A. Interview Questions

The investigator should encourage witnesses to tell what happened by asking open-ended questions; leading questions should not be used. A leading question is worded so as to suggest the proper or desired answer. Non-leading questions leave the answer completely open, and are generally questions asking who, what, when, where, why and how. Leading questions are generally less us Also, the investigator should not ask compound questions. A compound question is one that contains several questions in one. Compound questions can confuse the witness and often result in one answer, making it impossible later to determine which question the witness answered (e.g., Q: “Did you take Joe to the store with you, or did you go alone?” A: “Yeah.”).

The investigator should prepare interview questions in advance to ensure the questions are relevant, organized, thorough, and in correct form. The investigator should be prepared, however, to deviate from the planned questions when necessary to gather relevant information. The interview questions should focus on the facts and circumstances surrounding, and leading up to, each allegation. Information that relates to the elements laid out in the proof analysis will always be relevant. The best interviews start with background and build up to the salient questions or issues. The investigator should ask pertinent background questions first and work the witness toward the more difficult subjects. While there is no cookie-cutter method to ensure effective interviews, one recommended approach is to review events chronologically rather than by allegation. Jumping from allegation to allegation often results in skipping around in time and can be confusing to the person being interviewed and reviewers reading the transcript.

B. Order of Witnesses

The recommended sequence of interviewing witnesses is: (1) the individual who raised the allegation; (2) any subject matter experts (e.g., for an improper hiring allegation, a subject matter expert might be HR personnel); (3) any other witnesses; and (4) the individual who is the subject of the investigation. Interviewing the subject last enables the investigator to have as much testimonial evidence as possible before interviewing the subject of the investigation. However, this order may change depending on the specifics of the case. Earlier interview of the subject may be advisable. This decision should be made as part of process to develop the Investigative Plan. If, notwithstanding the potential benefits of interviewing the subject last, the investigator elects to interview the subject first in an investigation, the investigator must be willing to interview the subject again at the end to delve into facts learned from the other witnesses or conflicts between the subject’s testimony and the testimony of other witnesses.

C. Investigators Must Be Professional, Objective, Neutral, and Fair The investigator must be professional at all times. This requires the investigator to be objective, neutral and fair. The investigator should adopt a professional, not familiar, attitude. The investigator should not disclose witness identities or opinions; deceive, browbeat, threaten, coerce, or make promises; shout, or lose composure.

Further, the investigator should not set out to prove a misconduct charge, but rather whether certain conduct occurred. The investigator’s questions should seek to establish the facts, as opposed to eliciting conclusory statements. For example, the questions asked of an employee should be “Did the supervisor touch you on the buttocks?” “Did you want the supervisor to touch you on the buttocks?” instead of “Did the supervisor sexually harass you?” The neutral investigator would not limit witness questions to verifying whether the touching occurred, but would also ask questions to determine if there is evidence that the subordinate solicited or welcomed the touching. If the evidence shows that the touching occurred and it was unwanted, the investigator would not label the conduct as “sexual harassment.” Rather, it would be left to the proposing official to determine which disciplinary charge is covered by the supervisor’s actions.

D. Conducting a Thorough Investigation One of the basic precepts of conducting an investigation is to focus on answering the questions of who, what, when, where, why and how:

· Who saw or participated in the event in question?

· What happened?

· When did it happen?

· Where did it happen?

· Why did it happen?

· How did it happen?

The most fundamental mistake an investigator can make is to not ask the appropriate follow up questions. Investigations particularly need to address the “why.” Motive is almost always relevant. Here are some examples of improper investigative techniques:

Hypothetical 1: Several witnesses inform the investigator that they have been subjected to sexual harassment for years by other employees in the office and complain that the office has a culture of harassing women. The investigator fails to ask about the specific events that occurred, when and where the events occurred or if the events were observed by anyone else. In the FFR, the investigator reports that witnesses reported having been subjected to sexual harassment, but provides no details. The witnesses’ statements are conclusory in nature and provide no factual support. The investigator did not test the witnesses’ credibility or memories and provided no basis on which the Agency can determine whether misconduct occurred.

Hypothetical 2: A witness claims that he received an inappropriate sexually explicit voice message from his supervisor. The investigator does not ask the witness if a recording of the voice message still exists or request to obtain a digital recording of the message if possible. The digital recording and any written email communications would be key pieces of evidence relating to the allegation of sexual harassment.

Hypothetical 3: A supervisor arranges for an independent investigation because co-workers have alleged that Employee X has engaged in prohibited personnel practices in the hiring of a person for a particular position. During the course of gathering witness testimony, it becomes apparent that another employee (Employee Y) also was involved in the hiring process for the position in question. The investigator does not ask further questions about the involvement of the Employee Y because the original target of the investigation is Employee X. As a result, the Agency will not have the evidence it needs to discipline Employee Y. The investigator should contact the contract lead and FCG, who will then contact the ER POC to determine if a separate investigation concerning Employee Y should be opened, or whether to expand the investigation concerning Employee X to also include Employee Y.

Hypothetical 4: A supervisor is alleged to have engaged in improper hiring practices to hire his best friend’s son. During his interview, the supervisor testifies that the resume of his best friend’s son indicated that he was far more qualified than the other applicants. The investigator does not produce the resumes from the applicants during the supervisor’s interview to test the supervisor’s conclusions that the best friend’s son was the most qualified. The resumes are key pieces of documentary evidence that should have been used by the investigator to test the veracity of the witness’ statements and conclusions.

Evidence collection often has a ripple effect; the disclosure of one piece of evidence often drives the need to confirm it, or refute it, through other evidence. Any evidence that is relevant should be gathered, even if it is hearsay, circumstantial, photocopied, or otherwise not the “best evidence.” The best practice is then to trace that evidence back to a more reliable source (e.g., Q: “Do you know anything about Ed saying to John, ‘You know I have a gun, right?’?” A: “I heard something about that, but I wasn’t there.” Q: “Can you tell me who told you about that?”).

The investigator must ensure that he or she:

· Pursues an issue when there is an indication the witness has additional information;

· Finds the source of second-hand information so that first-hand information may be obtained;

· Determines the basis for witness opinions (i.e., A: “In my opinion, he’s not a truthful person.” Q: “What leads you to believe that?” A: “He lied to me three times.” Q: “Please explain.”);

· Asks for clarification when answers contain technical jargon, acronyms, slang or colloquial expressions;

· Seeks facts, not conclusions (i.e., A: “He was drunk”; Q: “What gave you that impression?” A: “He smelled like beer, his eyes were bloodshot, he was slurring his speech and couldn't stand up without swaying.”).

· Avoids labeling actions (i.e., do not state Q: “Do you know anything about Ed threatening John?” Instead, state Q: “Do you know anything about Ed saying to John, ‘You know I have a gun, right’?”)

At the end of every interview, the investigator should bolster the witness, whether he or she is friendly or hostile. This can be accomplished by employing the following statements:

· “Is there anything else I should ask you that I haven’t?”

· “Anything else I need to know?”

· “If you have any doubts, is there anything else you think you should tell me?”

· Remind the witness “it’s for the record.”

· “Certainly you appreciate that this matter may go to a higher level. Is there anything you’d like to amend or supplement?”

The investigator should always give the witness the opportunity of contacting the investigator if additional information is later recalled or comes to their attention. Not everyone can think of every detail on the spot, and the questioning may well trigger further search of memory and records.

Appendix E provides interview tips, including interviewing techniques and sample questions. However, investigators are cautioned that every investigation is unique and investigative techniques are not amenable to a one-size-fits-all approach.

E. Do Not Share Testimony and Evidence with Other Witnesses

An investigator must not taint the testimony of a witness by sharing what the investigator has found out from other witnesses. Information should flow in one direction only: from the witness to the investigator. If Witness A learns about the testimony of Witness B before Witness A can testify, Witness A will find it easier to deliberately tailor his own testimony to that of Witness B. Witnesses may also be influenced subconsciously and conclude that they have a personal recollection of an event that in reality had merely been relayed to them in conversation. An investigator will find it more difficult to expose misrepresentations, collusion, or inaccuracies by witnesses who have been informed about the testimony of others. For that same reason, it is also advisable that the investigator advise witnesses not to discuss the investigation or their testimony with other individuals in the office.

However, the investigator must not order the witness not to reveal information to “anyone.” Doing so without informing the witness of his or her rights under whistleblower laws could violate the law. The following language must be provided to the witness, verbatim and in writing, if the investigator is instructing a witness regarding their non-disclosure obligations:

This advisory is consistent with and does not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling executive orders and statutory provisions are incorporated into this advisory and are controlling.

5. Gathering Physical Evidence

Physical evidence consists of documents, computer records, photographs, and objects (e.g., tools), to name a few examples. Chain of custody refers to the chronological documentation or paper trail that shows the collection, custody, control, transfer, and analysis of physical or electronic evidence. While no specific “chain of custody” requirements are imposed on administrative investigations, the investigator should still take care to secure evidence as best as possible. The investigator should gather as much physical evidence as possible before conducting witness interviews, as physical evidence can be used to test and refresh witness recollection. The ER POC can assist the investigator with determining what type of physical evidence may be available (e.g., personnel documents, leave and earning statements, badge access records).

Any evidence that contains an individual’s medical information must be kept in a separate file, subject to additional confidentiality protections. It is recommended that any medical files be kept apart from the rest of the evidence files that pertain to the investigation. Investigators should reference where the medical files can be obtained in the FFR (e.g., “To review Exhibit A, contact [Name] in [Office]”).

A. Objects Occasionally, an investigator will have to collect objects as part of an investigation. The investigator should work with the SOL attorney to obtain, secure and store the evidence. Investigators should obtain photographs of the objects to include in the case file. Occasionally, the investigator may only have a photograph of an object that is fixed in place or otherwise unable to be collected (e.g., a particular location).

B. Documents Documentary evidence may be in the form of handwritten notes, correspondence, reports, newspapers, inventories, and computer records such as e-mails. Written documentation, if authentic, can provide powerful evidence to help the investigator reach a factual finding. Anytime a witness discusses a particular document during testimony, ensure the testimony identifies the document (e.g., “my letter, dated X, subject X”).

If it would be helpful, the investigator can create or have witnesses create documents to illustrate points in the investigation. This is called “demonstrative evidence.” For example, the investigator can have the witness diagram a location and where people were standing at a given time. Other examples of demonstrative evidence include organizational charts and maps. Demonstrative evidence should be thoroughly and accurately labeled. All documents should be marked “Provided by [name of person or office].”

C. Circumstantial Evidence For many allegations of misconduct, the investigator will need to obtain evidence that would establish a subject’s motive, intent or knowledge. Because the investigator cannot read minds, the chance of finding “direct” evidence of a person’s state of mind is remote. Instead, the investigator will need to rely largely on circumstantial evidence.

Circumstantial evidence is evidence that tends to prove the existence of a fact, but does not absolutely make it necessarily true. For example, if an investigator is attempting to determine that a supervisor has committed an unwanted touching of a fellow employee on his or her backside, the only direct evidence – evidence that if true would necessarily prove this fact – might be if the supervisor testifies that he or she did in fact engage in this behavior. On the other hand, there may be quite a bit of circumstantial evidence to prove that the supervisor touched the employee improperly, such as: witnesses testified that the supervisor was seen outside of one of the alleged victim’s office around the time that the alleged victim says the event occurred, and another witness testified that she had witnessed the supervisor engage in inappropriate sexual innuendo in the office a few years before. None of these pieces of evidence proves that the supervisor necessarily touched the alleged victim in an unwanted way, but they may well lead the Agency to conclude that a preponderance of the evidence supports the alleged victim’s version of events.

Circumstantial evidence can be as compelling as direct evidence, and often will be at the center of the investigator’s factual findings.

D. Computer Evidence The investigator can obtain e-mails, electronic documents, or other evidence on a computer system by asking the subject or witness to provide copies of such evidence. Occasionally, the investigator may want to access a subject or witness’s e-mail, computer, or other office files without their consent to obtain evidence. The investigator must consult with SOL to determine if the Agency will grant such access.

6. Adding New Allegations

Sometimes an investigator may discover additional possible misconduct that should be investigated by the Agency. For example, an investigator examining allegations of prohibited personnel practices might hear credible testimony from a witness that a supervisor has subjected subordinates to sexual harassment. Conversely, the investigation into allegations of sexual harassment might find evidence that much more serious misconduct, such as physical assault, has taken place. The investigator has no authority to investigate these new matters unless authorized to do so. The investigator must disclose the new information to the ER POC, so that he/she can coordinate with the Authorizing Official and SOL attorney to determine whether to broaden the scope of the investigation or authorize a separate investigation.

If, after consultation with the ER POC and the SOL attorney, the Authorizing Official decides to expand the scope of the current investigation, for contracted investigations, the ER POC will coordinate with the FCG to ensure that the contract scope is modified as necessary. Once FCG confirms the increase in scope, the Authorizing Official will provide the investigator a written document authorizing the investigator to examine the additional allegations. If any subjects who have already been interviewed are subjects of the new allegations, the investigator must re-interview those subjects to advise them of the additional allegations and give them a chance to respond. If a witness becomes a subject, the investigator must re-interview them, advising them of their changed status, advise them of the allegation(s), and give them a chance to respond.

The more challenging scenario occurs when a later reviewer, such as the SOL attorney conducting the legal review, notices that the evidence raises possible misconduct that the FFR failed to address. When this occurs, the attorney, the ER POC, the Authorizing Official, and the investigator should meet to discuss possible courses of action. If the FFR already contains all necessary information to address the additional misconduct, the Authorizing Official may simply choose to proceed on the completed FFR. However, if additional information is needed to ensure a comprehensive investigation of the new allegations, the Authorizing Official may elect to add the new allegations, re-interview the subjects to allow them to present any additional defense, and have the investigator analyze the additional allegations in the report. If additional evidence must be gathered to properly analyze the additional misconduct, the Authorizing Official will need to decide whether to have the investigator expand the investigation or to conduct an entirely new investigation into the additional misconduct. The Authorizing Official will contact FCG to authorize any additional investigations prior to giving the investigator the revised or new written summary of allegation.

7. Fact-Finding Report A. Organize the Evidence

Before beginning to write the report, the investigator should organize all his or her evidence. Transcripts of all testimony of significant witnesses must be obtained and reviewed; the investigator should not rely on his or her memory to pull together all the most relevant statements by witnesses. Appendix F is an example of an evidence chart that an investigator can use to understand all of the evidence that may prove or contradict a particular charge of misconduct.

B. FFR Format Two terms are used to describe the product the investigator produces. The FFR is the product the investigator writes that:

· contains an explanation of the investigator’s authority,

· lists the allegations and relevant laws, rules, policies or procedures,

· describes the methodology/logistics used to conduct the investigation,

· lists the witnesses interviewed and describes their roles,

· details the facts of the case,

· analyzes the evidence, and

· summarizes the investigator’s factual findings, including evidence relevant for credibility determinations.

The “case file” is the broader term for the entire binder of material the investigator submits. The case file includes the FFR, but also includes witness interview transcripts, documentary evidence, administrative documents, legal reviews, notes and other materials. The FFR – the written report – must be a stand-alone document. It must reference and cite all essential facts, documents, portions of regulations, and interviews, so that a reviewer can arrive at a determination without reference to information outside the report. The investigator should write the FFR with the assumption that the reader will have no prior knowledge of the case.

C. Authority and Scope In Section 1 of the FFR, the investigator should describe his or her authority to conduct the investigation and the authorized scope of the investigation. The investigator should also reference the Notification of Investigation Letter sent to the all witnesses (see Section 2.D).

D. Background and Allegations In Section 2 of the FFR, the investigator should list all allegations exactly as the Authorizing Official framed them. The investigator must address each of the allegations separately. The investigator should type out, word for word, the original allegation. The wording of the allegation drives the analysis. The investigator should not combine allegations in an attempt to simplify the process and must not change the wording of the allegation as framed by the Authorizing Official unless previously coordinated with and approved by the Authorizing Official.

The investigator should then provide a background of events that led to the alleged misconduct. This background section should consist of a complete recitation of the facts of the case. The investigator needs to include a citation to the case file for every factual statement in this portion of the report. If the investigator can cite to specific line numbers on a page, the report will be even more helpful.

E. Legal Standards and Burden of Proof

Once the issue and background facts have been identified, in Section 3, the investigator will next focus on the applicable rules or laws that guide the investigator in examining the issues. These rules come from regulations, laws, and Agency policies and procedures. The investigator should document the relevant parts of the rules. For example, if the allegation involved a violation of DOI policy, the investigator should annotate the name of the policy and effective date and quote the applicable portions of the policy, including any definitions. The investigator should use the original language from the policy or other rule or guide and include the cover page of the policy and relevant excerpt as an exhibit in the case file.

F.…