Typically when a federal employee is accused of misconduct, a federal agency will conduct an investigation before proceeding with disciplinary measures. During this time, it is important to understand your rights, as these investigations are designed to not be in your best interests.
At The Federal Employees’ Law Firm of John P. Mahoney, Esq., Attorneys at Law, we have over 25 years of top-rated experience defending federal employees against a wide range of accusations during an investigation. We care about your future and are dedicated to protecting your rights.
The Investigation Process
The federal employee investigation process occurs once a federal employee has been notified in writing or orally by the investigating agency that they are the subject or target an ongoing investigation of their conduct or performance related to their federal employment.
Typical reasons for federal employee investigation may include:
- Falsifying important information
- Harassment and threats
- Extended absence without leave
- Misuse of agency funds, credit cards or governmental vehicles
- Employee misconduct detracting from workplace operations
- Allowing a breach in security
Under all circumstances, it is recommended that you seek representation from a qualified federal employment law attorney to advise you of your rights at all stages of the investigation process.
Warnings During the Investigation
A federal employee should receive a warning, either orally, in writing, or both informing them about the nature of the investigation. Depending on the reason for the investigation, federal employees will be issued one of the following warnings:
The Kalkines Warning: This warning is issued in purely administrative as opposed to criminal investigations. Because the nature of the investigation is purely administrative, subject employees are required to answer all investigatory questions truthfully and completely, to the best of their knowledge, information, and belief under penalty of perjury. Truthful employee responses may not be used against them in criminal prosecution. However, intentional false answers may be used to criminally prosecute them.
- The Garrity Warning: This warning is issued in voluntary investigations that are potentially criminal in nature in which subject employee responses may be used against them in a criminal prosecution for any proven crimes. Given that, subject employees have a Constitutional right to remain silent and to refuse to answer the investigatory questions they are asked, If an employee is given a Garrity Warning volunteers to provide a substantive answer to investigatory questions, those answers can be used against them in criminal prosecution.
Unionized federal employees have the right to be represented by a union representative in a purely administrative investigation that could lead to discipline. All federal employees have a right to be represented by an attorney in any criminal investigation. Federal employees may be allowed by the investigating agency to be represented by an attorney in a purely administrative investigation. The attorneys at The Federal Employees Law Firm of John P. Mahoney, Esq., Attorneys at Law, regularly represent federal employee clients in administrative federal employee investigations by federal agencies throughout the United States and around the world.
The Disciplinary Process
Federal employees accused of misconduct may be placed under investigation by their employing agency or another federal agency with the authority to investigate the alleged misconduct. Any investigation can result in several outcomes. First, the federal employee could be cleared of the alleged misconduct and allowed to keep their job without discipline. Alternatively, the employee may receive discipline if they are probationary or a proposed disciplinary or adverse action if they are nonprobationary. Proposed disciplinary actions will be issued through written notice from the agency to the federal employee.
This notice of proposed discipline should include the charges and specifications of the alleged misconduct and the level of disciplinary penalty the agency proposed to take for the alleged misconduct. The notice of proposed discipline will also provide the subject employee that they have the right to review any materials relied upon by the agency proposing the discipline. Additionally, the employee must be given a reasonable period of time in which to reply in writing, orally, or both before the proposed disciplinary or adverse action is decided upon in writing. Moreover, employees who receive a proposed disciplinary action have the right to be represented by an attorney throughout the discipline process. The Attorneys at the Federal Employees Law Firm of John P. Mahoney, Esq., Attorneys at Law, represents federal employees frequently to reply to proposed disciplinary or adverse actions.
In response to a notice of proposed discipline, employees should first request copies of all the evidence or other materials the Agency relied upon to propose the action, any evidence that might help them disprove the alleged misconduct or that would tend to mitigate the penalty proposed by the agency, as well as any evidence that the proposed action constitutes a prohibited personnel practice (PPP), such as EEO discrimination or whistleblower retaliation, that is in the agency’s possession. The employee should also ask the agency for any necessary extension of the deadline in which to reply in order to have sufficient time in which to properly reply to the proposed discipline. In the written and oral replies, the employee should explain why the agency cannot prove each specification of the alleged misconduct charges by preponderant evidence and why the proposed penalty is unreasonable under the mitigating circumstances of the case. Moreover, the employee’s replies must prove any alleged PPP affirmative defense or harmful procedural error by the agency.
It is crucial to speak with experienced legal counsel at the time an employee receives a proposed disciplinary action. A federal employment attorney will assist you in drafting your written reply, gathering any evidence to support your reply and presenting a defense in your case. After you do respond, the deciding official will review any responses and evidence presented in order to determine their decision by either sustaining, rescinding the proposed action or reducing the proposed punishment.
The Performance Improvement Plan
At the outset of your annual performance rating period, your agency is supposed to give you reasonable and objective written performance standards tied to the critical elements of your job duties for that rating period. After you’ve been given a reasonable opportunity to perform under those performance standards, if the agency believes that your performance in one or more of the critical elements of your performance standards is unacceptable, it should place you on a Performance Improvement Plan (PIP) designed to assist you to improve your performance in those critical elements. Compliance with the recommendations in the PIP is highly recommended to avoid possible reassignment, demotion, or termination.
The Performance Improvement Plan is initiated by the agency in question to address steps to correct the alleged unacceptable performance. The problem PIPs is that they often end with an unfavorable result. Employers will suggest that a PIP is for the employee’s benefit, but more often than not it will be used as a reason for demoting or terminating an employee if the Agency can show that the employee’s performance has not improved during the PIP.
Therefore, it’s important to enlist legal counsel to help you respond to the original allegations of unacceptable performance, to challenge the content of the PIP Notice when appropriate, and to assure it is being properly administered by the agency. If you have received an unfavorable performance appraisal or been placed on a PIP, a federal employee lawyer will help you find an effective solution to any allegations of poor work performance.
Seek Legal Assistance
Legal counsel is highly recommended if a federal employee finds that they are being investigated for any of the above-stated claims. At the Federal Employees Law Firm of John P. Mahoney, Esq. Attorneys at Law, our worldwide federal employee attorneys are dedicated to protecting the rights of government employees and to defending their federal careers.
Contact John P. Mahoney, Esq. Attorneys at Law today at (202) 759-7780 if you are a federal employee under investigation, on a PIP or facing proposed discipline.