In Part One we looked at the ins and outs of running a Weingarten or Investigative meeting. Included in the article was a planning checklist for a supervisor or manager anticipating such a meeting.
In this article, we’ll look at why you don’t have to hold a meeting and why it might be in your interest to try another way of getting information from an employee alleged to have committed misconduct. As always, I advise you get up with your labor relations staff and/or Agency attorney before you deal with this stuff.
Three Key Principles
In order to get you where you may want to go, you need to read quotes from or a brief summary of three critical cases. I always recommend that people read an entire case for themselves rather than relying on a summary or quote. In any case, here goes:
In Weston v. Department of Housing and Urban Dev., 724 F.2d 943, 949 (Fed. Cir. 1983), the Federal Circuit Court of Appeals said, “To require a public body to continue to keep an officer or employee who refuses to answer pertinent questions concerning his official conduct, although assured of protection against use of his answers or their fruits in any criminal prosecution, would push the constitutional protection beyond its language, its history or any conceivable purpose of the framers of the Bill of Rights.”
In LaChance v. Erickson, 118 S. Ct. 753, 756 (1998), the U.S. Supreme Court held, “The fact that respondents were not under oath is irrelevant, since they were not charged with perjury, but with making false statements during an agency investigation, a charge that does not require sworn statements. Moreover, any claim that employees not allowed to make false statements might be coerced into admitting misconduct, whether they believe that they are guilty or not, in order to avoid the more severe penalty of removal for falsification is entirely frivolous.”
In Wilkes, 6 M.S.P.B. 732, 735 (1981), the Merit Systems Protection Board held that when an agency investigator, such as a supervisor, who is not a law enforcement officer conducts the interview, it is not “Custodial” and does not require a Miranda warning.
So What?
If you have come to grips with your limitations as an interrogator being duly humbled by the likes of Atticus Finch, consider not interviewing the employee at all. That’s right. Why get into a stressful and tense situation if you don’t have to when there are ways to get the information you need without all the drama? Consider this case and the options listed for conducting an inquiry.
The Case
Jo Schmo performs telework every Friday unless in travel status away from the area. Last Friday, Jo was scheduled to work an eight hour day at an approved alternate duty location (Jo’s home). Jo’s hours are 8:30 am to 5:00 pm with a ½ hour unpaid lunch. Jo filled out the timesheet electronically from the remote location claiming to have worked those hours on that day. On Monday, you had lunch with a supervisor from another work unit at the office. That supervisor told you that he had taken the kids to a local water theme park the prior Friday and had had a great day. He mentioned that he saw Jo Schmo there as well but that he just missed catching up with Jo to say hello. You asked what time this was and the supervisor said it was around 1:00 pm and that he saw Jo leaving around 3:30 pm. You asked if it were possible that Jo was just dropping off and picking up the kids but the supervisor said that he knows where Jo lives and that it takes about 25 minutes each way to get there and back. He said that Jo and the kids were wet and had towels wrapped around themselves on both times he saw them.
This information should get the supervisor asking “what’s going on here?” A good supervisor will go and check whether the dates are the same, whether Jo requested leave and what hours Jo reported for that date. Once you have this information and know there’s a conflict between your lunch partner’s account and what Jo reported, you’ve got an obligation to find out what’s going on, right? If not, remind me to deduct something from my taxes for the free time Jo got. Also the issue is not just whether Jo’s playing hooky but whether Jo has tried to finagle the Agency out of some work without charge to leave. In other words, is Jo less than a forthcoming Fed?
Option 1: An Opportunity to Correct the Record
As Jo’s supervisor, you may want give Jo a memo that lays out the facts and directs Jo to confirm the alleged facts, deny them and/or provide an explanation. It could go as follows:
Date: Today
To: Jo Schmo
From: Your Supervisor
Subject: Opportunity to Address an Allegation of Misconduct
This is to advise you that an allegation of misconduct exists regarding your behavior on Friday (dd/mm/yyyy), specifically that:
You were scheduled to telework on Friday (dd/mm/yyyy) at an approved location, your home, at (address). The approved hours were 8:30 am to 5:00 pm with a ½ hour unpaid lunch. You did not request leave for any part of that day and you reported those exact hours as hours worked on your electronically submitted timesheet at 5:04 pm that day. You were reported to be at the (NAME) water theme park at (address) on that same day, Friday (dd/mm/yyyy) from approximately 1:00 pm until 3:30 pm. This appears inconsistent with the hours you reported working and the location at which you were authorized to work.
As your supervisor, I am authorized by the Agency to inquire into such allegations of misconduct and require that you specifically address the above allegation.
This is an administrative inquiry and I have no intent to nor am I authorized to engage in a criminal investigation. You may assert your right to remain silent if you believe that making a response to the above allegation may result in a criminal prosecution. If you do so, I will refer the matter to the Agency I.G. for appropriate action.
As I stated, this is an administrative inquiry for the purpose of deciding whether I must consider taking or recommending administrative action in this matter. In that regard, I am directing you to address the accuracy of all of the facts in the allegation described above. By noon on (Day, dd/mm/yyyy), you are to provide a response to me in writing. You are to sign and date that response. You should be aware that there is no right to refuse to provide this response and doing so may result in the consideration of disciplinary action for failure to cooperate with an Agency inquiry. You should also be aware that providing false information in connection with an Agency inquiry may also result in the consideration of disciplinary action.
If you have questions concerning this matter, please provide them to me in writing. Doing so, in and of itself, will not extend your time to respond.
Option 2: Direction to Answer Questions
This option is a direction to the employee to respond to a series of questions. Here’s a sample based on the above case.
Date: Today
To: Jo Schmo
From: Your Supervisor
Subject: Opportunity to Address an Allegation of Misconduct
This is to advise you that an allegation of misconduct exists regarding your behavior on Friday (dd/mm/yyyy), specifically that:
You were scheduled to telework on Friday (dd/mm/yyyy) at an approved location, your home, at (address). The approved hours were 8:30 am to 5:00 pm with a ½ hour unpaid lunch. You did not request leave for any part of that day and you reported those exact hours as hours worked on your electronically submitted timesheet at 5:04 pm that day. You were reported to be at the (NAME) water theme park at (address) on that same day, Friday (dd/mm/yyyy) from approximately 1:00 pm until 3:30 pm. This appears inconsistent with the hours you reported working and the location at which you were authorized to work.
As your supervisor, I am authorized by the Agency to inquire into such allegations of misconduct and require that you specifically address the above allegation.
This is an administrative inquiry and I have no intent to nor am I authorized to engage in a criminal investigation. You may assert your right to remain silent if you believe that making a response to the above allegation may result in a criminal prosecution. If you do so, I will refer the matter to the Agency I.G. for appropriate action.
- Were you scheduled to telework on Friday (dd/mm/yyyy)?
- Were you scheduled to work at your approved telework location, which is your home, at (address) on Friday (dd/mm/yyyy)?
- On Friday (dd/mm/yyyy), is it true your approved working hours were 8:30 am to 5:00 pm with a ½ hour unpaid lunch?
- Is it true that you did not request leave for any part of Friday (dd/mm/yyyy)?
- Did you report that you worked 8:30am to 5:00 pm on your electronically submitted timesheet on Friday (dd/mm/yyyy)?
- Did you report your hours worked on your electronically submitted timesheet at or about 5:04 pm on Friday (dd/mm/yyyy)?
- Were you at (NAME) water theme park at (address) at any time Friday (dd/mm/yyyy)?
- Were you at (NAME) water theme park at (address) on Friday (dd/mm/yyyy) from approximately 1:00 pm until 3:30 pm?
- If you were you at (NAME) water theme park at (address) on Friday (dd/mm/yyyy), what time did you arrive?
- If you were you at (NAME) water theme park at (address) on Friday (dd/mm/yyyy), what time did you leave?
- Provide any information in regard to the above allegation or questions that you would like me to consider in determining whether administrative action is necessary in this matter.
As I stated, this is an administrative inquiry for the purpose of deciding whether I must consider taking or recommending administrative action in this matter. In that regard, I am directing you to answer the questions listed below. By noon on (Day, dd/mm/yyyy), you are to provide the answers to me in writing. You are to sign and date that document. You should be aware that there is no right to refuse to provide answers to these questions and doing so may result in the consideration of disciplinary action for failure to cooperate with an Agency inquiry. You should also be aware that providing false information in connection with an Agency inquiry may also result in the consideration of disciplinary action for that misconduct.
If you have questions concerning this matter, please provide them to me in writing. Doing so, in and of itself, will not extend your time to respond.
So What’s Next?
The employee will reply or not. If not, you now have two charges: the original bad deed plus failure to follow instructions. If so, assess the answer against the facts you have.
No, you don’t have to tell the employee where the info came from at this point. After all, it is true or it’s not. You also need not sit down with the employee or representative unless you want to. There is no inherent right for an employee or union rep or anyone else lacking authority to demand a meeting with you. If you do, make sure you have someone sit in, either above you in the chain or a labor/employee relations person or Agency counsel. Speaking of lawyers, Fedsmith lets you email my articles to whoever you choose. Just go to the top of the article and click on email. Send Part One and Two to your labor advisor, lawyer and/or boss and see what they think. Again, get an official take before you charge ahead. Let them wordsmith the letter to their hearts’ content as long as it goes out.
There are, of course, numerous variants on the samples provided. What I’m suggesting is that careful preparation trumps shoe-pounding and high drama every time. Whether you do a meeting or direct a response in writing there are three crucial rules. They are 1. Prepare, 2. Prepare, 3. Prepare. I hope this discussion helps.
As always, any opinion expressed above or mistaken case cite is my fault alone. BTW,
I’m speaking at the DELRS in Atlanta next week. If you’re a reader, please grab me and say hello.
