Misconduct Investigations: Lessons from the Employee’s Lawyer

Target Audience: OIG Agents, IA Agents, and other Agency Investigators

Length: Half-Day Seminar


“Misconduct Investigations: Lessons from the Employee’s Lawyer” is designed to enhance and hone the skills of special agents investigating allegations of misconduct—both criminal and administrative—by federal employees. Seen through the eyes of the employees’ lawyer, attendees learn about many common mistakes made during the investigation. Defense attorneys exploit these mistakes to influence agency officials to settle or mitigate otherwise solid, meritorious misconduct cases. Through the recounting of actual cases, fact patterns, and experiences of an attorney who has defended thousands of investigations conducted by hundreds of different agencies, investigators learn to be proactive and avoid those mistakes that adversely influence Agency misconduct cases. 


1. Seminar Overview and Legal Background

  1. Purpose of Seminar
  2. Role of MSPB Appeal in Evaluating Investigations
  3. General Rules Governing Conduct of Investigations
  4. Harmful Error Analysis
  5. Bad News for You and Good News for Employee
  6. Impact of Errors in the Investigation
  7. Legal Rules

2. Common Mistakes Made During Investigations

  1. Timeliness
  2. Workplace Searches
  3. Failure to Gather Evidence on Elements and Defenses of the Charge
  4. Investigations of Privileged Communications or Statements
  5. Investigations of Constitutionally Protected Rights
  6. Reliance on Arrests and Convictions without Independent Evidence
  7. Failure to Understand Complex Subject Matter
  8. Conclusory Investigation Reports
  9. Outside Influence for Improper Purposes
  10. Failure to Properly Administer Rights
  11. Mistakes in Dealing with Bargaining Unit Employees
  12. Improper Sequence of Interviews
  13. Inaccuracies in Witnesses’ Statements
  14. Flawed Surveillance
  15. Investigations of Employee Claiming Disability
  16. Failure to Investigate Nexus for Off-Duty Misconduct
  17. Failure to Investigate the Douglas Factors
  18. Retention of Notes
  19. Intentional Misconduct of Investigators
  20. Failure to Consult with Attorney or Personnel Specialist
  21. Failure to Maintain Secrecy of Proceedings
  22. Pre-Employment Investigation of Probationers