Tom: Welcome to the “I Got Fired” show, for folks who have been fired or afraid that they might be. I’m Tom Spiggle with The Spiggle Law Firm, and today we are gonna continue our series for federal sector employees. On previous episodes, we’ve talked about performance improvement plans, workplace investigations and how to handle appearing before the Merit Systems Protection Board. And today we’ve got a special guest with us, Sara Kropf, who is a good friend and excellent attorney, to talk to us about the, I don’t know, there’s a light and dark side, but [inaudible 00:00:32] the darker side of federal investigations, those that have a potential criminal angle to them. And it’s really important that we delve into that because sometimes it can be difficult to tell where you are in that spectrum, and it’s really important that you know. So welcome Sara. I will let you introduce yourself and tell us a little bit about who you are and what you do.
Sara: Great. Thanks, Tom. Happy to be here. My name is Sara Kropf as Tom said. I’m a lawyer here in Washington, D.C., I have my own firm. My practice is largely focused on white-collar criminal defense cases. So that involves fraud, conspiracy, anything along those lines. And I also do civil litigation. The white-collar criminal defense side, I’ve handled quite a few OIG investigations, D.C. is ripe for those, a lot of federal employees and a lot of investigations. And so that’s the basics of my firm.
Tom: Okay. And so if folks wanted to find you, where can they find you?
Sara: So my website is www.kropf-law.com. If you google me, it comes up. And I have a blog called grandjurytarget.com, where I’ve written about OIG investigations along with other topics, but folks are welcome to read about OIG investigations there.
Tom: Yeah, you’ve got some really good stuff on that blog. I highly recommend it to people. I mean, we’ll put your email…I mean, your website address in the show notes for folks that wanna follow up that way.
So tell us a little bit about…and let me…you know, you’ve hid your light under a bushel a little bit, a former big-firm partner, you’ve been doing this for a long time. You know, really just a great attorney. So tell me, for those folks who do not know, and as you know, folks who are watching this are usually people who are caught up in it, not a lot of lawyers, so what is OIG? And if I’m a federal employee, why should I care?
Sara: So OIG is Office of Inspector General, and every federal agency has an OIG that’s inside of the agency, and then there’s several independent agencies that also have an OIG inside of them. OIGs are interesting in that they are housed within the agency, but they are technically independent of the agency. So the head of the agency, the secretary of your agency or the head of it cannot tell the OIG what to do or what not to do. They can’t stop an investigation. They can refer something, but they can’t stop it from happening once it’s started.
So OIGs are kind of interesting little animals. They’ve gotten a lot of press recently because we’ve been hearing about them in politics quite a bit, but the basics are it’s as part of the agency that has lawyers, and it also has non-lawyer agents. Agents are the ones who will usually reach out. But some agencies have a very large OIG. You know, they may have 30, 40 people that work in it. Some of the smaller ones will literally have two or three. So the size varies usually with the size of the agency.
Tom: And they have a lot of power. Is that right? They usually have a lot of discretion.
Sara: They do. It’s a funny…I think in one of the post we put it as a narrow but deep channel of power. OIGs have an incredible amount of power within the organization. So the things that they can investigate are defined as waste, fraud, and abuse, which can cover almost anything that happens within an agency or anything a federal employee does. Within that, they have certain ways that they can investigate, but whatever they investigate, they then turn the results over to your supervisor or your…the group in which you work, or they can turn it over to the prosecutors for a criminal investigation. And I’m happy to talk more about the kinds of things they investigate, but they have broad power in that they can look at almost anything that an agency or a federal employee does in the context of their job.
Tom: So if I…in the previous episodes, we were talking to some attorneys who do federal sector work but more of the employment side, and there are, of course, a number of types of investigations that a public sector employee can be pulled into. How would I know the difference between an OIG investigation and what my supervisor might be doing, you know, as part of a disciplinary action?
Sara: It’s usually fairly clear that it’s an OIG investigation. Usually, the way you find out is the agents honestly will just stop by your office. In the criminal work, as Tom knows, sometimes it’s called doorstepping. So they’ll show up on your doorstep. For you, it’s your office rather than your home. They will identify themselves as OIG agents. They will give you a business card that says that they are an agent with the OIG within your agency. So it will be apparent to you that it is an OIG investigation.
Now, I think where people get caught up and a lot of folks who call me, they’ve already had that first interview without a lawyer and talked to the agent maybe multiple times and don’t quite understand the implications of it. But it will be apparent to you that it’s coming from the OIG, and the people who talk to you will identify themselves. On the employment side, I’ll leave that to Tom and his experts to answer that. But on the OIG side, it really will be apparent to you that it’s coming from an OIG.
Tom: Yeah, usually on the employment side, it’s usually your supervisor or somebody in the office that you know. It’s not usually gonna be obviously somebody from OIG. And correct me if I’m wrong, but usually these folks when they do a…you know, they do doorstepping and they stop by, they’re usually pretty friendly, right?
Sara: Yeah. You know, it’s interesting, of the employees that I’ve talked to, it does seem to fall into two camps. I’ve had a handful of clients who the agents come in hot, so to speak. So they come in and they’re literally pounding the table and pointing fingers, but the large majority of them are very friendly. They will show up and say things like, “Oh, we just wanna find out some information from you. We’re just trying to find out what happened.” They generally won’t lie and say, “Oh, you don’t have anything to worry about,” but they certainly will place the conversation into a context that makes a lot of employees not concerned.
Most people go into the interviews thinking, “Well, I have nothing to hide. Happy to cooperate.” They see it as part of their job, which it is, and so they talk to the agents and don’t think about hiring a lawyer. But, yeah, for the most part, the agents are friendly. And many times they’re reaching out because the information you have as an employee is just that, it’s just information. You are a witness. But the agents, unlike in criminal cases, aren’t required to tell you you are the target of what’s going on. So they don’t have those same obligations to inform you. And they won’t. So they might come in friendly and it turns out what they’re really trying to do is gather information against you, and that’s really the danger.
Tom: Yeah, the wolves in sheep clothing sorts of things. So, you know, as you know, federal sector employees have different rights than employees in private sectors, which means that they also receive different kinds of warnings if OIG is gonna come in and talk to you. So tell us about those. What they are and what they mean.
Sara: Sure. So the warnings are important. I mean, I like to think of it, and you can think of it as Miranda warnings for an OIG investigation. You know, as lawyers, we call them…they fall into a couple different categories. And I’ll explain what the warning will look like when you get it. So the first type is a Garrity warning. And Garitty is just the name of a Supreme Court case. So we call them Garrity warnings. That is the kind of warning that happens in most cases. So that warning, and the warning, they will generally…sometimes they give it orally, but they’re usually safer. They give you a piece of paper, and it has one paragraph of information on it, and it says, “You’re being asked to give information to the OIG. Your interview or your cooperation is voluntary.” And it’ll have some other parts to the warning.
Now, what it’s warning you about is that because it is a voluntary interview, that if you make any statements during that interview, those statements can be used against you later. So a lot of people are familiar with the Fifth Amendment. We hear about it a lot these days. But it’s sort of like…it’s sort of preserving those rights. If you make a statement voluntarily, even though it’s the government asking you questions, then they can use those statements against you later in a criminal case or in whatever OIG does or anything like that. So that’s a Garrity warning. And that is…the majority of cases, that’s what you get. And that’s because, as I was explaining, most federal employees are happy to cooperate voluntarily.
The other category of warnings are called Kalkines warnings. And it’s just another Supreme Court case. I think that one might be a Second Circuit case, but it’s another court case. That type of warning looks the same, so it’s a single piece of paper that will have a place for your signature, and it’ll have about a paragraph of information. That warning you get, however, is when the interview is involuntary. Now, if you are in the private sector and the company you’re working for wants to do an internal investigation and they interview you, then they can force you to do that because you work for them, that’s part of your job, you have to cooperate or you can be fired.
The same is sort of true with the government, but it gets to different rights because it’s the government in that situation who is compelling you to answer the questions because the government is your employer. So if the government is compelling you to answer questions and saying, “You have to answer these questions or we will fire you,” then you do have certain rights. And that’s where your right…if the government is compelling the statements, that those statements not be used against you in court. And so the Kalkines warning will say that. It’ll say, “This interview is not voluntary,” or, “This interview is being compelled,” and the statements against you cannot be used later in a criminal case.
That one is much rarer. Generally speaking, agents will always try to get a voluntary interview. And you can see why, because then they get to use the statements however they want. But those are the main kinds of warnings that you will get. And OIGs, you know, to their credit, are careful about giving the warnings. They will give them. Most employees are not paying any attention to them. They sign them and don’t think about it again. But that’s what those warnings mean.
Tom: So what would your advice be for, you know, you’re in your office, you’re a federal employee, you know, OIG knocks on your door and comes in and wants to talk. What should I do? Should I call a lawyer right away? Is there ever a time I shouldn’t call a lawyer? What would you recommend?
Sara: As a general matter, it’s best to get a lawyer. Where people are concerned with that is they think that if they say, “Hey, I wanna wait to be interviewed until I get a lawyer,” that they look guilty. And I’m not saying that there’s not some risk of that. OIG agents are suspicious folks. That’s what they do for a living. It makes their lives more difficult generally if the employee gets a lawyer. So they probably won’t be thrilled if you decide to assert those rights. But as a general matter, it’s a huge help and I think eases people’s minds to have a lawyer.
So if you call a lawyer, the first step that’s going to happen once you retain the lawyer, if you’re retaining me I’d say, “Okay, look I’m gonna call the agent. I’m gonna find out exactly what they wanna ask you questions about.” So finding out the topic of the conversation is really helpful. Because otherwise, if they walk into your office and you engage in a two-hour interview with them, and some of them can be hours long, you’re not gonna remember everything. You won’t have had a chance to look back at your emails, look back at documents, refresh your recollection of what happened. So if you hire a lawyer, first, it slows down the process just a little bit. It gives your lawyer a chance to call the agent and find out what’s going on, and then have a chance to prepare you for those topics. So that is always much wiser.
The other huge risk when you talk to an agent, and Tom knows this from his previous life, is making a false statement. False statements to any federal agent, even if you’re not under oath, which these interviews are not under oath, they’re just statements to an agent, that is a separate crime. So if you make a false statement, and let’s say you even do it unintentionally, you open yourself up to a criminal prosecution. Now, you may be able to convince the prosecutor later that this was unintentional and here’s why you just forgot, but it creates all sorts of problems that you really don’t wanna be in. And having a lawyer allows you to take a step back, prepare fully, makes it less likely you’re gonna make an unintentional misstatement that someone may interpret as a true/false statement. So I think it is always better to have a lawyer helping you.
Tom: If that happens and somebody is looking for a lawyer, it’s important to remember that, right, the agency is not gonna provide you one. This isn’t public defender, you know. So what would you recommend? How do I find a lawyer if I’m in that situation? First of all, do I…let me ask this, do I say to OIG that I’m gonna get a lawyer and then they leave?
Sara: Yes. Yeah. So as soon as you say to them, “You know, I don’t wanna be interviewed. I want to get a lawyer,” I’ve never had any client or potential client say that the agent didn’t stop the conversation, or even that the agent tried to pressure them into still answering questions. They know that once the person says they want a lawyer, they need to back off, and they respect that.
So as far as finding a lawyer, there’s a couple things. One is some federal employees, and I forget the name of it but have an insurance policy, actually, that can provide counsel under that policy. If you have that kind of policy, and I would strongly recommend everyone get it, I’m not quite sure how you do that, but I’m sure I can find out, there’s a panel of lawyers that the insurance company has approved. I’m not interested here, I’m not on the panel, so, you know, this is…but I know some of the lawyers who are on it and they’re excellent. Your attorney’s fees will be paid and you get a lawyer. That’s really the best case scenario. Most federal employees do not have this policy. I always ask them if they have it and most don’t. But that’s one place to get one.
The other place is to ask. A lot of cases come to me from the federal employee asking a lawyer that they know. As a general matter, the lawyers who handle OIG investigations usually are criminal lawyers, because so many OIG investigations become criminal cases. So asking a lawyer that you know for a recommendation of a criminal lawyer will at least start getting you in the right direction. You know, those are the two places where I think most people find and how they find a lawyer. I guess some agencies have unions, but they aren’t going to provide a lawyer for you.
Tom: Yeah. And I think, you know, another thing to consider, you know, a lot of people, like I do, you know, go straight to Google. You know, criminal defense is a good place to start, but it is a fairly narrow specialty, and probably you’re looking for somebody with a background like yours, in white-collar criminal defense. I mean, that’s not to say that, you know, a criminal defense lawyer wouldn’t have other practice areas, but chances are, I mean, not always, but chances are, you know, the person who’s doing your DUI case is not gonna be the same attorney that you would want handling your OIG investigation. So you probably wanna look for somebody who has a white-collar criminal defense background is usually where you find them.
Sara: Yeah. And I think that’s a fair point is, you know, searching white-collar criminal defense lawyer will help. If you do just find your way to a criminal lawyer who doesn’t handle this type of case, they might have a referral for you to someone who specializes in white-collar. Because you’re right, I mean, it is definitely specialized. You know, frankly, I can’t handle a DUI case, and I’m gonna refer that to someone who can. Even if I consider myself a criminal lawyer, I mean, there are within the law, as you know, so many narrow specialties that you want someone to do that. But I think someone who genuinely does white-collar criminal defense can handle an OIG investigation.
Tom: And then there’s the national, or the National Association of Criminal Defense Lawyers, the NACDL, is that right?
Tom: I think it was .com or. org. That has a good, I think, a lawyer locator function on it.
Sara: I think it does. Yeah, especially if you’re in D.C., we’re all over the place. It’s easy to find a good white-collar lawyer in D.C., you know, and in any kind of big city. But if you are working for an agency then you’re located someplace remote to D.C., it can be a little more of a challenge. Now, you can work with a lawyer… Most agencies, of course, are based in D.C. You can find a D.C. lawyer to help you even if you’re located in another state, but sometimes it’s nice to have a lawyer that you can physically meet with is just a huge help.
Tom: Yeah, yeah, where you are. So what’s the outcome of an OIG investigation? What are the possible penalties? What should people be aware of and worried about?
Sara: Okay. So from the OIG investigation itself, there are no literal penalties. So an OIG itself cannot fire you, cannot take any steps against you, cannot prosecute you for a crime. But that doesn’t mean you shouldn’t worry because it’s what OIG does with its findings that creates all sorts of risk factors for employees. It can go in a couple different directions. OIGs can investigate something and then close the investigation having made no findings of any wrongdoing. And we can probably talk later about sometimes they publicize that in a way that still hurts the employee. But that’s option one is the OIG investigates, doesn’t find anything and the case is over.
Option two is OIG investigates the wrongdoing that’s at issue is internal to the agency, and they turn the report or the findings over, essentially, to your supervisor for consideration of employment sanctions, you know, from termination all the way down to just an informal reprimand. And the person who decides that is within your chain of command, it’s not the OIG.
That will happen when what’s at issue is just internal to OIG. You know, if you falsified your time records, if you submitted false expense reports that aren’t very big, that kind of stuff will stay within the agency. That’s still a huge risk because it’s your job on the line and, you know, demotion can have financial penalties, obviously being terminated is the most severe. But all of those things can be very, very serious. And I think a lot of federal employees understand that side of it. So that’s kind of bucket two. They find something wrong, they let your supervisor know and the employment side [inaudible 00:20:14] about what sanctions will be imposed and then if you wanna challenge them.
The third is the riskiest for the employee, and it’s also something that’s becoming increasingly common, which is that the OIG takes its findings and refers them to a prosecutor. And that will be a federal prosecutor, so a U.S. Attorney’s Office in your state. They can refer it to what we call Main Justice, which is Department of Justice here in D.C., [inaudible 00:20:42] to the U.S. Attorney’s Office. That starts or can start a criminal investigation into you. In many ways, that is the worst outcome because it adds a whole new layer of risk of prison time, going through a criminal case and so forth.
And it doesn’t only have to be referred at the end of OIG’s investigations. The very sophisticated OIGs, Health and Human Services has one, where they really investigate big companies who are submitting Medicare claims. They’re doing all sorts of very sophisticated investigations, and they’re referring it to prosecutors early. It’s not just at the end. So even while that OIG agent is talking to you, there may be already a criminal investigation happening. They won’t tell you that. They don’t have to tell you that. As a lawyer, I can often find that out, but not necessarily. So it’s pretty frightening because there may already be a criminal investigation and you just don’t know it yet.
Tom: And tell us, you know, about Fifth Amendment rights and asserting those and what that means. What happens if you talk to that friendly OIG investigator who stops by your office?
Sara: Right. So if you talk, you’re waiving your rights. If you’re telling the agent…if it’s a compelled interview and you’re telling the agent you’re being interviewed, you waive those rights and you can’t later say, “You know, I want to assert my Fifth Amendment rights.” So that’s why that first interview is so risky. And it’s interesting because the employee views it as very low-risk oftentimes because of the demeanor of the agent, maybe because what they’re talking about doesn’t seem that important, but talking to the agent will waive those rights. So it’s a dangerous feel. And that’s why, you know, frankly having a lawyer to at least talk you through that. It may be absolutely fine to be interviewed by the agent. And many of my clients are. We go in voluntarily, I’m sitting right next to them, and they’re interviewed, because they wanna keep their job. But you just wanna have someone advise you through that process.
Tom: Yeah. Because you’d rather…you know, if there’s a choice between losing your job and going to prison, you probably…I think most people would pick losing their job. You know, and I think it’s important to remember that once a Fifth Amendment, as you say, I mean, it’s like a bubble. Like, once it’s popped, it’s popped. You know, you can’t turn that around.
You know, and another thing I think for folks to remember is just because you’re not gonna talk to them it doesn’t mean you have to be, not that folks I think would be, you don’t have to be rude to them. But you can say like, “Hey, look, I don’t think I did anything wrong. You know, I’m just extra careful. You know, I am gonna want a lawyer. Here, would you like a piece of candy from my desk?” You know, that sort of thing, you know.
And I think most investigators understand that. But as you pointed out, a lot of times when investigators show up, 9 times out of 10, they already have a theory of the case, right? They have some…I mean, I think that, you know, genuine investigation, it’s not that they won’t change their mind, but they have some reason that they’re at your door, and they think you played some role in it. And maybe it’s completely not true. But as you pointed out, you will not know necessarily because they have a lot…you know, you’re seeing a small piece of the puzzle and, you know, they’ve got the whole mosaic there. So I think for those reasons I agree, the Fifth Amendment, you know, just the potential for, you know, getting a criminal violation for lying or waiving the Fifth Amendment just inadvertently.
And sometimes, let’s face it, sometimes OIG investigators and prosecutors most aren’t very good people, but they are…I mean, they can be overzealous. They over-prosecute, as you well know. They’re not trying to be bad people, but they have a certain view of what you did that can be wrong. And, you know, just the fact that they come in and they are nice to you doesn’t mean that, you know, they’re gonna be that way, you know, going forward. So absolutely, I just think that…and it’s not…you know, it’s not like you’re gonna have to, and you could speak to this, it’s not like you’re gonna have to drain your 401(k) to hire a lawyer, to advise you, to come sit for the interview. You know, many times that’s all it’s gonna be.
Sara: Yeah. And I will say, you know, and when I work with clients and federal employees, you know, they have a good job and they have oftentimes a good salary, but it’s still a stretch to hire a lawyer. And, you know, oftentimes my representation involves making a few phone calls in the beginning, finding out information, meeting with the client, preferably in person but we can do it by phone, to prepare them, look at documents and so forth, and then accompanying them to the interview, and then dealing with whatever follow-up questions the agents might have. So it isn’t an incredible amount of time. I mean, most lawyers who do this, like I do, bill by the hour, but it isn’t an incredible amount of time. When it gets expensive is when it’s a long, drawn-out investigation, when you are the target of the investigation rather than just someone who they need to interview, and when it becomes a criminal investigation.
Tom: Yeah, and at that point, you’ve got to…
Sara: It is troubling. And it can add up and can be expensive.
Tom: But you need a lawyer. I mean, it’s a bad situation to be in, but then you do wanna…you’ve got to do what you’ve got to do to afford that representation because it’s important. You know, if you’re in it for the long game it’s because you’ve got some real exposure and you need somebody on your side. So talk a little bit about, you mentioned publishing findings, tell us about that.
Sara: You know, it’s funny, that’s the part that oftentimes for my clients is the most difficult part of this. What happens at the end of an investigation is there is generally a report prepared, although sometimes not, and each agency has different rules and different practices that they follow about how they publish those results. Some agencies just put a small, one paragraph blurb on the OIG’s website within the agency website. And it’ll summarize it. It won’t say anything by name. It’ll just say, “You know, a GS-15 in this particular group was found to have, you know, violated the conflict of interest rules,” and give a couple sentence description of what it is.
Sometimes that troubles people because within groups and within any organization there’s always gossip. People oftentimes know the investigations are happening and they’re troubled by the fact that there’s a blurb there that says that they did wrongdoing. Even if a Google search is not gonna turn it up under your name, it’s still there for your co-workers to see. Some agencies do more than that. So some agencies do a longer summary. They’ll do a two-page or three-page summary of the findings, sometimes by using the person’s name and sometimes without.
And then some agencies go 100% all in, they publish a full report, it’s a PDF document, it’ll be on their website. Some of them don’t include names and some of them do. I mean, I represent a client now who there’s a pretty large OIG investigative report finding wrongdoing and it has his name throughout it. So when you google his name, that’s the third or fourth hit. And, you know, it’s very troubling to him to have that out there because, it does vary by agency, but you generally don’t get a chance to weigh in or have your views, you know, through your lawyer made known before that report comes out. So the publishing of the findings is oftentimes incredibly difficult. Even if the OIG didn’t necessarily find much that you did wrong, the idea there’s a report out there with your name in it can cause lasting damage.
Tom: Yeah, yeah, it’s an unfortunate…you know, unfortunate thing that they do and really unfair when they publish names. But, you know, talking about how much power they have, that’s one of the big…you know, one of the big hammers that they wield. Have you ever seen or what would you say to someone, you know, for example, like, there are investigations that happen on the employment side that are not…you know, the OIG is not involved in, but those…have you ever seen those turn…like, OIG coming in after that? I know it’s possible.
Sara: It’s certainly possible. I mean, referrals to OIGs can come from all over. I’ve only handled one that was purely administrative, and I asked them, “You know, is this something that OIG is gonna get involved in?” And they told me, “No, this is just administrative,” and they were telling the truth. I never saw OIG in that case. But certainly, an administrative investigation, you know, sometimes they start an investigation thinking that there’s something minor going on. There was a pretty well-known case at, I think it was EPA, where there was an employee who he was telling his supervisor that he worked for the CIA and he would literally take off 6, 12, 18 months at a time while he was still getting paid by the agency. That was obviously a very extreme example. It’s possible, though, that could start with just an administrative investigation and then get referred to an OIG.
OIG investigations start from referrals administratively, and so often they are from your disgruntled current or former colleagues, supervisors, subordinates, and they start that way. So there are, you know, someone…all it takes is someone doing an anonymous complaint to OIG, which they can do, to start an investigation.
Tom: Yeah. You know, and that’s an important thing to consider when thinking about your Fifth Amendment rights because if you’re talking as a part of an administrative investigation, they can use that, right?
Sara: Right. Absolutely.
Tom: They can turn all those notes right over to OIG and OIG can use them in whatever way that they wish. You know, that’s why I think even in those investigations, it’s always, you know, better to talk to a lawyer early on. Yeah, I mean, that’s one thing if you’re like, “This is clearly bogus. I didn’t do anything wrong.” You know, that’s one thing. But, you know, if you’re a little worried, “Maybe I did that one thing,” or, “I’m not sure,” you know, it’s probably better to get a lawyer. Just talk to them, you know, to get some kind of protection, to at least call the agency and see what you can find out about the investigation.
You know, because, again, it’s the domino effect. You know, you go in, you know, you talk to the internal folks and you say all kinds of things then the internals do a referral to OIG and all of a sudden you’re in a boatload of trouble. So it’s something to keep in mind when anybody shows up, you know, at your doorstep to do that investigation. Even if it is administrative, it doesn’t mean that it couldn’t metastasize to something more serious.
Sara: Right. Exactly. And I think, I mean, it’s interesting that you bring up the administrative side and whether or not those are referrals because, you know, I’m sure it’s something you think about when you’re representing your clients in those is thinking, “What are they admitting to and could that be a crime? Could that not be something that, you know, they need to worry about that?” Because, you know, things like fraud are so broad that, you know, submitting false time cards will likely, correct me if I’m wrong, likely will just stay administrative.
Sara: But the one with the guy at EPA who said he was working for the CIA, I mean, that, of course, became a major criminal case. You know, he got years in prison. And so, it’s all about degree oftentimes, but technically, you know, submitting knowingly false time cards, some prosecutor could say, “Well, that’s a crime.”
Tom: Yeah, yeah. And, you know, yeah, absolutely. And depending on who you’ve upset or who is upset with you. You know, I mean, we’ve seen this recently in the news, so it’s not far-fetched that, you know, you could get on the wrong side of a political dispute or an internal dispute and all of a sudden find yourself, you know, in front of OIG. So, you know, although it’s a little bit like, you know, the fox watching the chicken coop, but still, with two lawyers here, I still think it’s better to get a lawyer. It’s not completely out of our self-interest because a lot of times a lawyer can…just a little bit of advice early on can help really change the trajectory, you know, of those investigations.
Tom: All right, well, this has been very helpful. Is there anything else that I haven’t covered or any recommendations, you know, the cases that you’ve handled where you think, “Wow, I wish my folks had done this or not done that?” Any other?
Sara: You know, other than, you know, that first interview or that first request for an interview to politely decline, and I completely agree with you Tom, like, you do not have to be a jerk about it. It does not have to be an adversarial thing, you know, and giving yourself some cover of saying, “You know, I just like to be careful,” or, “You know, I just wanna check with a friend of mine who’s a lawyer,” or whatever, to give yourself that time is critical. You know, know that OIGs can subpoena your bank records, your cell phone. I mean, they can subpoena third parties for information. And they will do that. So they have pretty broad-ranging powers. And then they can seek the, you know, sworn testimony of current employees, but they can’t do it for former employees unless you’re Department of Defense.
But, you know, there are oftentimes where I’ve represented clients, and it comes down to very much, at least at that point, a distinction between would they like to keep their job and have to cooperate with this investigation or would they rather just quit. And it’s not that OIG can’t continue its investigation just because you quit, they can still write it. I’ve had many former employees who have reports published about them, but you don’t have to talk to the agents. So sometimes we get to a point where we say, “You know, look, you may face some liability here, some criminal liability, it would be best to quit, not have to be interviewed.” So there’s some things that go into that. But I think that’s it. I mean, I think we’ve covered most of the important parts of it.
Tom: I just wanted to chime, I mean, what about government contractors?
Sara: So government contractors absolutely can be investigated by OIG. More often than not, that’s gonna be hand-in-hand with a criminal case, or it will be hand-in-hand with the civil side of Department of Justice in what’s called a False Claims Act case. So if they think that you as a contractor submitted false claims, they might be working with the civil side of Department of Justice to investigate you in the same way they’d be working with the criminal side. So government contractors and third parties who do work with agencies are under just as much risk of being investigated. They absolutely have the power to do it. What they can’t do is seek your interview, but they can do everything else. They can request documents from you and so forth.
Government contractors also, you know, face the ultimate penalty of having the contract canceled. So they very much want to cooperate, feel under a lot of pressure to do so. And obviously, you know, the agency under whatever contractual provisions are there could likely end the contract if they don’t cooperate. So, again, OIG can’t take any action against that third party, but it can refer it to either civil side of Department of Justice or criminal.
Tom: Yeah. And I suppose there could even be for the contractor debarment, where you can’t even do business with the federal government ever and then you’re toast, you know, if that’s your primary client, that’s what you do is service the government.
Tom: So, you know, again, federal contractors, same deal, OIG starts sniffing around, it’s a good idea to go ahead and, you know, to get a lawyer because [inaudible 00:36:44].
Tom: All right. Well, thanks so much, Sara. I appreciate it.
Sara: No problem.
Tom: All right, you have a good weekend.
Sara: Thanks. You, too.