16 September 2000: Link to Chapter 232, Arrests: http://cryptome.org/doj-igm-232.htm

5 September 2000. Thanks to Anonymous.

Volume III - Investigations chapters in preparation:

Chapter 200 - Investigative Standards (5 pp.)
Chapter 201 - Firearms Policy (Table of Contents only, 2 pp.)
Chapter 202 - Threats to OIG Employees and Witnesses (7 pp.)
Chapter 233 - Searches and Seizures (43 pp.)

[30 pages.]

Table of Contents

226.1 Policy

226.2 Reference

226.3 Scope

226.4 Responsibilities

A. Inspector General
B. General Counsel
C. Assistant Inspector General for Investigations
D. Deputy Assistant Inspector General for Investigations
E. Special Agents in Charge
F. Assistant Special Agents in Charge
G. Special Agents

226.5 Procedures

226.6 Overview of Collective Bargaining Agreements and the Role of Unions

A. OIG Not Bound by Any Collective Bargaining Agreement
B. Recognition of union Representatives in Certain Administrative Interviews
C. Barring Union Representatives During Criminal Interviews
D. Independent v. Joint Investigations with Components

226.7 Interviews During Criminal Investigations

A. Use of Warning Forms
B. Refuting Claims of Coercion
C. Instructions to Maintain Confidentiality
D. Definition of a Subject
E. Custodial Interrogation of Subjects
F. Non-custodial Interrogations of Subjects in Criminal Investigations
G. Non-custodial Interrogation of Witnesses

226.8 Interviews During Administrative Investigations

A. Grants of Immunity
B. Definition of a Subject
C. Scheduling Administrative Interviews
D. Warning Form
E Scope of Immunity
F. Request for Counsel
G. Request for Union Representation
H. Role of Union Representative
I. Employee Refusal to Cooperate
J. Off-duty Conduct

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX E

APPENDIX F

226.2 Reference. This Chapter is issued pursuant to the authority contained in the Inspector General Act of 1978, as-amended, 5 U.S.C. app., Attorney General Order 1931-94, dated November 8, 1994, and Memorandum from then Attorney General Benjamin Civiletti to the Heads of All Departments, June 4, 1980.

226.3 Scope. The provisions of this Chapter will apply to all Special Agents in the Investigations Division, Office of the Inspector General.

226.4 Responsibilities. The responsibilities of the officials and staff of the OIG relevant to this Chapter are set forth below:

A. Inspector General (IG) ensures all Departmental policies, relevant court, Merit Systems Protection Board and administrative decisions are adhered to by Special Agents of the OIG during the course of interviewing Federal employees.

B. General Counsel (GC) advises the IG of all developments in the area of labor management-relations law as it pertains to employee interviews being conducted by Special Agents of the OIG. The GC will also advise the IG of changes in criminal law that would affect any subject interview procedures.

C. Assistant Inspector General for Investigations (AIGI) develops standards which Special Agents of the Investigations Division will use when interviewing a Federal emplpyee or non-employee during the course of their investigations. The AIGI also will ensure that Special Agents stay current with the law through periodic training and instruction.

D. Deputy Assistant Inspector General for Investigations (DAIGI) ensures that all standards and policies set for the Investigations Division relative to the interviewing of Federal employees and non-employees are adhered to within the Investigations Division.

E. Special Agents in Charge (SACs) ensure that all standards and policies for the Investigations Division relative to the interviewing of Federal employees and non-employees are adhered to within their respective Field Office. SACs are authorized to decide in certain types of criminal cases whether it is necessary to seek a formal prosecutive decision from a federal prosecutor prior to use of the Kalkines administrative warning in an employee interview. (See § 226.8(A).)

F. Assistant Special Agents in Charge (ASACs) ensure that all Special Agents under their supervision are cognizant of the requirements that must be met when conducting interviews during the course of an investigation. ASACs review all Memoranda of Investigation to ensure that all appropriate warnings required pursuant to this directive were given to employees and non-employees interviewed.

G. Special Agents (SA) ensure that all Federal employees and non-employees who they interview during the course of an official investigation are provided all warnings required as the circumstances of the investigation warrant. SAs shall create an accurate record as to the warning given at the start of the interview, including a statement that the interviewee understood his/her rights, whether or not the form is signed. When an employee requests representation, the employee reasonably fears discipline, and the interview is conducted in New Jersey, Pennsylvania, Delaware, or the Virgin Islands, SAs shall allow a union representative to be present during the interview to advise the employee.

226.5 Procedures. Sections 226.6 through 226.8 explain the procedures Special Agents of the OIG are to follow within conducting investigatory interviews involving both Federal employees and non-employees.

226.6 Overview of Collective Bargaining Agreements and the Role of Unions

A. OIG Not Bound by Any Collective Bargaining Agreement. Employees of several components, offices, boards and divisions (collectively "components") are represented by unions (e.g., Border Patrol, INS, BOP). No collective bargaining agreements (CBAs) between a union and a component apply to the OIG. Accordingly, OIG Special Agents should not comply with any CBA provision regarding interviews, including prior notice and informing an employee of a right to a representative, except as set forth below in S 226.6(D). If management of a component raises an issue of compliance with a CBA and does not accept an explanation that the OIG is not obliged to follow such agreements, the Special Agent should contact the OIG Office of General Counsel (OGC).

B. Recognition of Union Representatives in certain Administrative Interviews.

1. Conflict of Court Decisions. In addition to obligations imposed by a CBA, a "representative of an agency" is obliged by statute, in certain circumstances, to honor an employee's request for union representation during an administrative interview. The D.C. Circuit and the Third Circuit do not agree on whether an OIG is a "representative of an agency" and therefore obliged to honor requests for union representation. The D.C. Circuit recognizes an OIG's independence from the agency and has ruled that an OIG is not required to honor any employee's request for representation. The Third Circuit does not recognize an OIG's independence from the agency and has held that an OIG must, in the same circumstances as an agency, honor an employee's request for un:ion representation. The right to union representation in an administrative interview is often referred to as a Weingarten right, based on a Supreme Court decision.

2. Location. Due-to the-conflicting court decisions, the OIG's obligation to honor an employee's request for union representation depends in part on where the interview takes place. In New Jersey, Pennsylvania, Delaware and the Virgin Islands (areas within the Third Circuit), a Special Agent must allow union representation in an administrative interview when an employee reasonably fears discipline may result from the interview and he/she requests union representation. In all other locations, a Special Agent may deny a request for union representation during an administrative interview, even if the employee reasonably fears discipline. See SS 226.8(F) and (G) for additional details regarding the limited role of a union representative.

C. Barring Union Representatives During Criminal Interviews. A Special Agent may deny an employee's request for union representation during a voluntary interview of alleged criminal conduct. A Special Agent may inform the employee that the request is denied because it is against OIG policy to allow representation during interviews of alleged criminal conduct and because the employee's participation is voluntary. After denying the request, the Special Agent must notify'the employee that he/she has the option of continuing the interview without a representative or having no interview. The Special Agent should ensure that a subsequent decision to continue with the interview is made freely and voluntarily by the employee. (Courts and the FLRA look at a Special Agent's actions and comments to determine if the employee was coerced to continue without representation.)

D. Independent v. Joint Investigations with Components. The ability of the OIG to assert its independence from the agency (and therefore not to be required to allow union representatives during administrative interviews or comply with a CBA) will be affected if an investigation is conducted with the aid of a component's internal investigative unit (e.g., BOP Internal Affairs, INS Office of Internal Audit), either as partners or as witnesses in interviews. In order to successfully challenge any unfair labor practice charge by a union, a special Agent must follow different procedures during investigations with component participation.

1. Component Employee as Interview Witness. When OIG Special Agents use component employees as witnesses, such individual should act solely as a witness and not participate in the interview. The interviewee should be informed before the interview (and before any discussion of warning forms) that (1) this is an OIG investigation and an OIG interview, and (2) that the component employee is present as a witness.

2. Joint OIG/Component Investigations. When a Special Agent conducts an investigaficin jointly with a component's internal investigative unit and investigative duties are shared, the OIG's claim of independence (to disallow union representation or avoid CBA obligations) will be subject to challenge. Accordingly, when an administrative interview is conducted as part of a joint investigation, and an employee who reasonably fears discipline requests representation, such request must be honored without regard to where the interview takes place.

226.7 Interviews During criminal Investigations

A. Use of Warning Forms. Prior to addressing the subject matter of an interview, a federal employee.who is the subject of the investigation must be informed of his/her rights applicable'to the situation. In addition, a non-employee must also be apprised of his/her rights in certain situations. When specific forms,are identified in this chapter, the Special Agent should read the form aloud to the interviewee, give the interviewee an opportunity to read the form, and ask the interviewee to acknowledge receipt and understanding of the form. An interview may continue if the interviewee states he/she understands his/her rights but refuses to sign the form. A written record discussing how the warnings were given and the interviewee's acknowledgement or understanding of the nature of the warning should be included in the Memorandum of Interview (MOI) for the interview.

B. Refuting Claims of Coercion. Interviewees later may seek to suppress statements made during an interview and claim coercion or fear of termination of employment. The most effective evidence to refute such claims is evidence prepared at the time of the interview, either by the interviewee's signature on a warning form and/or by an MOI summarizing the discussion of warnings.

C. Instructions to Maintain Confidentiality. A Special Agent, at the conclusion of an interview, may instruct an interviewee-employee that he/she may not discuss the nature of the interview with other persons other than his/her counsel.

D. Definition of a Subject. A Subject of a criminal investigation is someone against whom evidence exists of criminal wrongdoing. Evidence includes allegations against an individual.

E. Custodial Interrogation of Subjects

1. Conditions. A custodial interrogation occurs when the interviewee is not free to leave the interview or does not reasonably believe that he/she is free to leave the interview. An interviewee need not be under arrest or incarcerated in order to be in a custodial setting. The location of the interview (closed and/or locked door) and a Special Agent's behavior, including the length of the interview, presence and display of weapons, manner of questioning, and number of agents will be considered if an employee raises a judicial challenge to the voluntariness of the interview and admissibility of statements provided. A witness should not be subject to a custodial interrogation.

2. Warning Form. OIG Form III-226/1 (Miranda/Employee) should be used when the subject is a federal employee. OIG Form III-226/1a (Miranda/Non-employee) should be used when the subject is not-a,federal employee. (See Appendix A). The Office of General Counsel should be contacted in advance of any interview of a presidential appointee who is the subject of the investigation so that the appropriate warnings can be provided.

3. Request for Counsel. A subject's request to stop the interview in order to speak to counsel must be immediately honored by the Special Agent. A subject's request that counsel be present during a custodial interview also must be honored.

4. Request for Union Representation. A Special Agent may deny an employee's request for union representation in all jurisdictions during an interview of alleged criminal wrongdoing. The interviewee should be informed that he/she has the right to decline the interview or continue without representation. The Special Agent should ensure that a subsequent decision to continue with the interview is made freely and voluntarily by the employee.

F. Non-custodial Interrogations of Subjects in criminal Investigations

1. Conditions. Subjects of investigations for alleged criminal violations are most commonly interviewed in a non-custodial setting. In this circumstance, criminal prosecution is possible, the interviewee's participation is voluntary, and he/she may leave at any time during the interview.

2. Warning Form. OIG Form III-226/2 (Noncustodial/employee) (See Appendix B) should be used when the subject is a federal employee. No specific form is required when the interviewee is not a federal employee, although the Special Agent should orally discuss the voluntary nature of the interview, the interviewee's opportunity to leave, and the fact that any comments may be used against the individual in a criminal or other proceeding. The office of General Counsel should be. contacted in advance of any interview of a presidential appointee who is the subject of the investigation so that the appropriate warnings can be provided. See Appendix B - OIG Form III-226/5 (Non-custodial/Presidential Appointee).

3. Request for Counsel. While case law does not demand it, as a matter of OIG policy, a Special Agent should honor a request that counsel be present during the interview. The counsel may not be another employee of the Department of Justice or a potential witness in the case.

4. Request for Union Representation. A special Agent may deny an employee-subject's request for union representation in all jurisdictions during an interview of alleged criminal wrongdoing. The interviewee should be informed that he/she has the right to decline the interview or continue without representation. The Special Agent should ensure that a subsequent decision to continue with the interview is made freely and voluntarily by the employee.

G. Non-custodial Interrogation of Witnesses

1. Conditions. During a criminal investigation, the Special Agent wishes to interview a person regarding a potential criminal violation committed by another person. The interviewee has not been given immunity (see S 226.8(A)) and there is no indication that the interviewee is a subject. The interview is purely voluntary.

2. Warning. No warning is required. The Special Agent should confirm, however, that the interviewee's participation is voluntary and that he/she may leave or terminate the interview at any time.

3. Reguest for Counsel. While case law does not demand it, as a matter of OIG policy, a Special Agent should honor a request that counsel be present during the interview. The counsel may not be another employee of the Department of Justice or a potential witness in the case.

4. Request for Union Representation. A Special Agent may deny an employee's request for union representation in all jurisdictions during an interview of alleged criminal.-wrongdoing. The interviewee should be informed that he/she has the right to decline the interview or continue without representation. The Special Agent should ensure that a subsequent decision to continue with the interview is made.freely and voluntarily by the employee.

5. Changing Status: Interviewee Witness Becomes Potential Subject. If the interviewee's comments suggest that he/she had a more significant role in any critical event relevant to the investigation than the Special Agent believed at the time the interview began, and that the interviewee may become a subject in this or another investigation the Special Agent should interrupt the interview, advise the interviewee of his/her rights as set forth in OIG Form III-226/2 (see 226.7(D)(2)) and proceed if the interviewee agrees to continue.

226.8 Interviews During Administrative Investigations

Although a determination has been made not to pursue a criminal prosecution, investigations can result in civil and/or administrative action. One benefit of an OIG administrative interview is that an employee can be required to answer questions regarding the performance of his/her duties and all relevant facts. A supervisor then can determine what, if any, adverse action is appropriate.

A. Grants of Immunity.

Not all instances of alleged criminal activity will result in criminal prosecution. The factors or guidelines defining when certain instances of illegal conduct will be accepted for prosecution vary from district to district. Where a decision has been made to forgo criminal prosecution, an employee can be required to answer questions related to his/her official duties. Statements may be compelled since there are no Fifth Amendment implications; the statements will not be used for any subsequent criminal prosecution. Whether or not the appropriate warnings discussed in this section are provided, however, any compelled statement may be suppressed in a subsequent criminal prosecution.

1. Declination of Criminal Prosecution. In most instances, a Special Agent should obtain a declination of criminal prosecution from a federal prosecutor. A record of declination, either by a letter from the reviewing attorney or an MOI prepared by the Special Agent identifying the Attorney and outlining the details of the consultation, should be placed in the case file.

2. SAC Decision Not to-present Matter for-Review. If a SAC knows that certain criminal allegations, even if proven, would not satisfy the prosecution standards or guidelines for a particular district, the SAC may choose not to present the matter formally to a federal prosecutor for a prosecutive decision. A SAC may determine which warnings are appropriate for interviews, which cases must be formally presented for prosecutive decision, and which cases may be treated as administrative matters without obtaining formal declinations. A SAC may delegate this authority to an ASAC.

B. Definition of a Subject. A Subject in a non-criminal investigation is someone against whom evidence exists of misconduct. Evidence includes allegations against an individual.

C. Scheduling Administrative Interviews. An administrative interview of an employee normally should be scheduled through a supervisor to ensure that the employee is on duty and that the supervisor has prior notice for assignment purposes. The supervisor should be specifically'told that a non-criminal, administrative interview will be conducted. The supervisor should be requested to inform the employee that this is an administrative interview and that the employee must attend.

D. Warning Form. OIG Form III-226/4 (see Appendix D) should be used when the interviewee is a subject and voluntarily consents to the interview. No warning should be given to an employee who is not a subject and who voluntarily consents to the interview. If the interviewee (subject or witness) does not consent to be interviewed, OIG Form III-226/3 (see Appendix C) should be used. This warning is often referred-to as a "Kalkines" or "Garrity" warning based on court decisions discussing the relationship between compelled statements and the Fifth Amendment. The office of General Counsel should be contacted in advance of any interview of a presidential appointee who is the subject of the investigation so that the appropriate warnings-,can be provided.

E. Scope of Immunity. OIG Form III-226/3 grants derivative use immunity to the interviewee; that is, neither the statements nor information derived from such statements may be used in any subsequent criminal prosecution of the interviewee. At the time this warning is presented to an employee, the Special Agent should specifically explain to the interviewee the conduct about which he/she will be questioned, in order to refute any subsequent challenge as to the scope of the immunity. If an employee begins speaking about other unrelated criminal conduct, the Special Agent should immediately inform the employee that the immunity does not apply to other conduct or admissions. A Special Agent should give the employee a non-custodial warning before questioning on unrelated conduct. (See S 226.7(E)(2)).

F. Request for Counsel. If an employee requests that counsel be present, a Special Agent generally must honor the request, but he/she may restrict the role.of counsel during an administrative interview (see S 226.8(E)(2). A Special Agent may deny a request for counsel where there is an identifiable, adverse consequence to the OIG, such as undue delay of the interview or interference with the investigation. What constitutes undue delay will vary depending upon the nature of the investigation, the length of delay, and the hardship on the Special Agent caused by the delay. Interference may arise from an attorney's representation of multiple subjects where the agent believes such representation'constitutes a conflict.

1. Counsel's Refusal to Allow Interview. Counsel may attempt to refuse to allow the client employee to participate in an administrative interview. This may be due to counsel's lack of understanding of "use immunity." The Special Agent should contact OGC in this instance, because a'letter ok explanation often will cau'se the attorney to withdraw the previous instruction to the employee to refuse the interview.

2. Counsel's Role-During Interview. If counsel is present during an administrative interview, the Special,Agent should advise counsel that the employee is obliged to answer questions regarding allegations of work-related misconduct, and therefore that any advice by counsel to his/her client not to respond may result in discipline of the employee. This issue should be addressed during the Special Agent's review of the warning form with the employee. (See SS 226.8(C) and (D)).

a. If an employee requests an opportunity to consult with a attorney at any time during the interview, including before answering a question, the Special Agent should honor that request.

b. A Special Agent may not ask an employee or an attorney about the nature of their discussions.

c. A Special Agent should deny any request by a representative to tape-record an interview. If a Special Agent wishes to tape-record an interview, approval must be obtained from the SAC. All tape recording must be made by the OIG only.

d. A Special Agent should not interrupt or bar all statements by the attorney during the course of an interview. The attorney should be allowed to clarify a Special Agent's questions and may clarify an employee's responses. The Special Agent should balance the attorney's participation with the orderly flow of the interview and should allow the representative to ask questions of the employee at the end of the interview.

e. If a Special Agent determines that an attorney is unduly disruptive during the course of the interview, the Special Agent may terminate the interview. In this circumstance, the Special Agent should contact OGC. The Special Agent may continue the interview of the employee without counsel after the employee receives a second instruction from his/her supervisor to attend the interview, now without counsel.

G. Reguest for Union Representation. If at the beginning of or during an administrative interview (1) the employee reasonably fears discipline as a result of the interview, (2) the employee requests union representation, and (3) the interview is being conducted in New Jersey, Pennsylvania, Delaware, or the Virgin Islands, the Special Agent must honor the request for a union representative. In all other locations, the request should be denied. (See 9 226.6(B)).

1. A "reasonable" fear of discipline is based on the objective facts. A subject of an investigation likely will have a reasonable fear that discipline will follow an interview, and therefore requests for representation should be honored when interviews are conducted in the Third Circuit.

Generally, a witness should not have a reasonable fear of discipline to warrant union representation. However, if a component has a regulation requiring reporting of misconduct and a practice of disciplining employees for failure to report-, the witness who failed to report the misconduct may have a reasonable fear.

2. The union may designate anyone to be its representative, except as set forth in 226.8(G)(3) and (G)(4). The representative need not be a member of the union or an employee. If the employee requests both personal counsel and union representation, the employee may be asked to choose between union or personal representation. The union may designate the personal lawyer as its representative.

3. An employee with a right to representation is not guaranteed the representative of his/her choice. If the representative requested is not available at the scheduled time for the-interview and a delay of the interview would unduly interfere with the investigation, the Special Agent.may inform the employee that he/she must choose another representative.

4. In most instances, a Special Agent cannot bar a particular representative. If an investigation involves multiple subjects, however, the same representative can be prevented from representing more than one subject. A Special Agent should consult with OGC if he/she believes this situation may arise.

H. Role of Union Representative. The role of a union representative is different from, and more limited than, that of counsel during a criminal investigative interview. Generally, a union representative may clarify questions posed to the employee and provide additional information to assist in the investigation.

1. The Special Agent may demand answers from the employee; the union representative does not have the authority to answer on behalf of the employee or to instruct the employee not to answer.

2. If an employee requests an opportunity to consult with a union representative before answering a question, the Special Agent may deny that request, demand an answer, and then allow consultation so that the employee can determine whether to modify or supplement his/her response.

3. A Special Agent may ask an employee or a union representative about the nature of their discussions with the represented employee.

4. A Special Agent should deny any request by a representative to tape-record an interview. If a Special Agent wishes to tape-record an interview, approval must be obtained from the SAC. All tape recording must be made by the OIG only.

5. A Special Agent should not interrupt or bar all communications by the union representative during the course of an interview. The representative should be allowed to clarify a Special Agent's questions and may clarify an employee's responses. The Special Agent should balance the representative's participation with the orderly flow of the interview and must allow the representative to ask questions of the employee at the end of the interview.

I. Employee Refusal to Cooperate. An employee may be disciplined for failure to cooperate in an OIG investigation. If an employee refuses to cooperate in an administrative interview, the Special Agent should contact the immediate supervisor and have him/her instruct the interviewee to cooperate. If the employee continues to refuse, a stronger case for discipline for both insubordination and failure to cooperate will be established.

J. Off-duty Conduct. Administrative investigations normally focus on an employee's performance of official duties. Any employee may be investigated and disciplined for off-duty conduct if there is a nexus between the offending conduct and the employee's jobrelated responsibilities so that any proposed discipline would "promote the efficiency of the service." Before beginning an investigation of an employee's off-duty conduct, a special agent should review the General Counsel's Opinion on Investigating Off-Duty Conduct, date July 18, 1996.

APPENDIX A

__________________________________________________

MIRANDA WARNING FOR CUSTODIAL SITUATIONS

This one page form can be reproduced, if necessary.
__________________________________________________

UNITED STATES DEPARTMENT OF JUSTICE

Office of the Inspector General

YOUR RIGHTS

Before we ask you any questions or you make any statement, you must understand your rights.

• You have the right to remain silent and refuse to answer any questions at any time.

• Anything you say or do can be used against you in a court of law or other proceedings.

• You have the right to talk to a lawyer for advice'before answering any questions and to have a lawyer with you during any questioning now or in the future.

• If you cannot afford a lawyer., one will be provided for you without cost.

If you decide to answer questions now, you have the right to stop answering questions at any time you desire.

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I understand and know what I am doing. No promises or threats have been made against me and no pressure or coercion of any kind has been used against me.

APPENDIX B

__________________________________________________

WARNING FOR NON-CUSTODIAL
SITUATIONS - FEDERAL EMPLOYEES

This one page form can be reproduced, if necessary.
__________________________________________________

UNITED STATES DEPARTMENT OF JUSTICE

Office of the Inspector General

YOUR RIGHTS

You are being contacted to solicit your cooperation in an inquiry regarding misconduct or improper performance of official duties. In accordance with the Privacy Act of 1974, you are advised that the authority to conduct this interview is contained in the Inspector General Act of 1978, as amended, and in Department of Justice Order 1393-90.

The matter under investigation could also constitute a violation of law which could result in criminal prosecution of responsible individuals. Before we ask you any questions or you make a statement, you must understand the following warnings and assurances.

• You have a right to remain silent and refuse to answer any questions at any time.

• Anything you say may be used as evidence in an administrative proceeding or any future criminal proceeding involving you.

WAIVER

I understand the warnings and assurances stated above. I am willing to make a statement and answer questions. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

APPENDIX C

__________________________________________________

WARNINGS AND ASSURANCES TO
EMPLOYEES REQUIRED TO
PROVIDE INFORMATION

This one page form can be reproduced, if necessary.
__________________________________________________

UNITED STATES DEPARTMENT OF JUSTICE

Office of the Inspector General

WARNINGS AND ASSURANCES TO EMPLOYEE REQUIRED
TO PROVIDE INFORMATION

This is an administrative inquiry regarding allegations of misconduct or conduct that afrects your capacity to carry out your official duties. In accordance with the Privacy Act of 1974, you are advised that the authority to conduct this interview is contained in the Inspector General Act of 1978, as amended, and in Department of Justice Order 1393-90.

The purpose of this inter-view is to obtain information which will assist in the determination of whether administrative action is warranted.

You are going to be asked a number of specific questions regarding the performance of your official duties and conduct that affects your capacity to caorry out your official duties.

You have a duty to reply to these questions and disciplinary action, including dismissal, may be undertaken if you refuse to answer or fail to reply fully and truthfully.

Neither your answers nor any information or evidence gained by reason of your answers can be used against you in any criminal proceeding, except that if you knowingly and willfully provide false statements or information in your answers, you may be criminally prosecuted for that action. 'Me answers you furnish and any information or evidence resulting therefore may be used in the course of disciplinary proceedings which could result in disciplinary action, including dismissal.

ACKNOWLEDGEMENT

I have read and understand my rights and obligations as set forth above.

APPENDIX D

__________________________________________________

WARNINGS TO EMPLOYEES DURING
VOLUNTARY INTERVIEWS

This one page form can be reproduced, if necessary.
__________________________________________________

UNITED STATES DEPARTMENT OF JUSTICE

Office of the Inspector General

WARNINGS FOR EMPLOYEES DURING
A VOLUNTARY ADMINISTRATIVE INTERVIEW

This is an adffiinistrative inquiry regarding allegations of misconduct or conduct that affects your capacity to carry out your official duties.

In accordance with the Privacy Act of 1974, you are advised that the authority to conduct this interview is contained in the Inspector General Act of 1978, as amended, and in Department of Justice Order 1393-90, and Department of Justice Order 1931-94.

The information which we are gathering will assist in the determination of whether an adverse action is warranted as a result of misconduct or conduct that affects your capacity to carry out your official duties.

ACKNOWLEDGEMENT

I am willing to make a statement and answer questions.

APPENDIX E

__________________________________________________

GUIDE FOR EMPLOYEE INTERVIEW SITUATIONS
__________________________________________________

OIG Form III-226/1
Miranda Warning for Custodial Situations Federal Employees

This form should be used in those situations where an employee is under arrest or subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444 (1966). The ultimate inquiry is whether an objective or reasonable person in the' interviewee's position would believe he/she was in custody under the circum-stances, that is, not free to leave or subject to a restraint on movement equivalent to formal arrest. A court will consider where the interrogation occurred; how long it lasted; how many officers or interviewers were present; what was said and the manner of delivery; what, if any, physical restraints were used on a person or were present (e.g., presence or use of a gun, handcuffs, guard at door); and whether the interviewee was free to leave or placed under arrest after the interview. United States v. Griffin, 922 P.2d 1343 (8th Cir. 1990); Unitad States v. Mitchell, 763 F. Supp. 1262 (D. Vt. 1991).

OIG Form III-226/1a
Miranda Warning for Custodial Situations Non-Employees

This form should be used when an individual is under arrest or subject to "custodial interrogation," as described above. Please note that this form is used for persons who are not employees; Form 226/1 is only for employees. The significant difference in the text is that employees are notified that they cannot be discharged simply for exercising their Fifth Amendment right to remain silent.

OIG Form III-226/2
Warning for Non-Custodial Situations - Federal Employees

This form is used when a subject is being questioned on a voluntary basis. The allegations may concern potential criminal behavior, civil wrongdoing, or an administrative violation. The critical elements for this form are that the interviewee is a potential subject of the investigation; criminal prosecution is a possibility; prosecution has not been declined; and the interview is voluntary. In this situation, it is critical that an agent emphasize the voluntary nature of th.e.interview and the employee's right to end theinterview and leave at any time.

Please note that no similar form is required when a person who is the subject of an investigation yet is not an employee is interviewed on a voluntary basis. It is essential, however, that the agent verbally advise the subject of the voluntary nature of the interview,_ the person's right to leave at any time.

OIG Form III-226/3
Warnings and Assurances to Employee Required to Provide Information

This form is commonly referred to as the "Kalkines" warning, based on the case Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973). This form is used when prosecution has been declined and the interviewee is an employee who is the subject of the investigation. In this instance, the employee is required to participate in the interview, and may be disciplined for failing to cooperate. This form may also be used for off-duty misconduct interviews.

OIG Form III-226/4
Warnings and Assurances to Employees During Voluntary Interviews

This form should be used when the interviewee is a subject and voluntarily consents to this interview. No warnings are necessary for an employee interviewee who is not a subject of an investigation. If the interview (subject or witness) does not consent to be interviewed, the "Kalkines" warnings (OIG III-226/3) should be used.

OIG Form III-265/5
Warning for Non-Custodial Situations -- Presidential Appointees

This form should be used when the individual being questioned on a voluntary basis is a presidential appointee. As described under OIG Form III-226/2, the allegations may concern potential criminal behavior, civil wrongdoing, or an administrative violation; the interviewee is a potential subject of the investigations; criminal prosecution is a possibility; prosecution has not been declined; and the interview is voluntary. The significant difference in the text is that the presidential appointee can be discharged solely for remaining silent; however, the interviewee does retain the right to end the interview and leave at any time.

APPENDIX F

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GENERAL COUNSEL MEMORANDUMS
RELATIVETO INTERVIEW PROCEDURES

(Agents: Place OGC-issued memorandums
behind this appendix page.)
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