Personnel Misconduct Investigations

CHAPTER 751 - DISCIPLINE

SUBCHAPTER 3 - AGENCY INVESTIGATIONS OF EMPLOYEE MISCONDUCT

3-1. AUTHORITY AND POLICY

This subchapter provides standards and procedures for agency-conducted investigations of alleged or suspected misconduct by its employees.

As an accompaniment of the delegation of disciplinary authority to agencies (Subchapter 1-1 of this Chapter), it is the policy of the Department that the employing Agency will conduct investigations of certain employee misconduct in accordance with the standards set forth in this subchapter. Agency investigators may take written statements under oath or affirmation from Federal employees and non-federal employees for use in administrative or other proceedings. Agency investigators may require employees of USDA to provide such statements.

The Office of Inspector General (OIG) has authority to conduct employee misconduct and criminal investigations as well as authority to investigate allegations of fraud, waste, and mismanagement in USDA programs. Where there is reasonable cause to believe that a crime has been committed, OIG is responsible for referring the matter to the Department of Justice for prosecutorial consideration. See Departmental Regulation 1710-2, "OIG/Investigations Organization and Operations."

3-2. COVERAGE LIMITATIONS

This subchapter is applicable to all agencies of the Department. However, it is not meant to limit any investigative authority delegated by any proper method such as law, rule, regulation, or agreement with OIG.

3-3. SCOPE OF AGENCY INVESTIGATIONS

1. Agency Authority. Agencies are authorized to conduct investigations of possible misconduct by agency employees involving violations of rules, regulations, or law that, even if proved, will not likely result in criminal prosecution, such as:
   1. Absence without leave and attendance irregularities.
   2. Falsification of documents not within the purview of Section (b) below.
   3. Conducting personal business during duty hours.
   4. Fighting, threatening, or using abusive language to coworkers, supervisors, or the public.
   5. Refusal or failure to follow instructions or procedures.
   6. Neglect of duty.
   7. Misuse of Government vehicles.
   8. Off duty conduct resulting in arrest or conviction. Investigation into such matters will normally be limited to gathering information from law enforcement officials. No action should be taken which could interfere with an investigation being made by law enforcement officials or prosecution.
   9. Use of Government facilities, supplies, equipment, services, telephones, or personal for other than official purposes.
   10. Sexual harassment.
   11. Falsification of an application for employment.
   12. Intoxication or consumption of alcohol or drugs while on duty.
   13. Prohibited political activity (only after liaison with the Office of Personnel, which will coordinate with the Office of the Special Counsel,Merit Systems Protection Board; see DPM Chapter 733).
2. Limits to Agency Authority. Agencies are not authorized to conduct investigations in the following situations, which must be referred to the appropriate Regional Inspector General for Investigation. After review of the case, OIG will conduct an investigation or decline the case and refer it back to the Agency for appropriate investigative action.
   1. Violations of law in which there is some likelihood that criminal prosecution might result, such as:
      1. Extortion or acceptance of bribes.
      2. Theft of Government property, or misuse/embezzlement of funds
      3. Sale of illegal drugs.
      4. Submission of false claims, (18 U.S.C. 287).
      5. Concealment, removal, or mutilation of official documents (18 U.S.C. 2071).
      6. Criminal conflicts of interest (18 U.S.C. 207-208).
   2. Allegations against the following types of employees
      1. Presidential appointees
      2. Senior Executives.
      3. GS-16's and above, or equivalent employees under pay systems.
      4. Schedule C's.
3. Referral of Information to OIG During An On-going Investigation. The following situations which may arise during an investigation must be immediately referred to the appropriate Regional Inspector General for Investigations and the agency coordinator or appropriate agency manager.
   1. Any attempt to improperly influence or hinder an official investigation, including threats against or attempted coercion of a witness or investigator.
   2. Evidence of criminal activity or other matters of a scope beyond agency investigative authority when such allegations or evidence were
      no initially known when the investigation was begun.

3-4. RESPONSIBILITIES OF THE OFFICE OF PERSONNEL

The Office of Personnel (OP) shall:

1. Provide overall policy, direction, and assistance to agencies in developing programs and in improving program effectiveness.
2. Provide guidance and assistance to agency coordinators and designated investigators, as necessary.
3. Provide training and certification, in coordination with OIG, to agency personnel to be designated to conduct investigations.
4. Review and approve agency requests for waivers of the investigator training requirement.

3-5. RESPONSIBILITIES OF THE OFFICE OF INSPECTOR GENERAL

The Office of Inspector General shall:

1. Provide guidance and assistance to agency coordinators and designed investigators.
2. Make determinations on investigative jurisdiction where there is a possible criminal violation.
3. Provide liaison with the appropriate U.S. Attorney in referrals for prosecution and in obtaining clearance for administrative action where there is a possible criminal violation.
4. Provide training and certification, in coordination with OP, to agency personnel to be designated to conduct investigations. Certification is awarded by OIG and OP upon completion of at least 24 hours of classroom instruction on employee misconduct investigations. A record of certified employees will be maintained by OIG in the Policy Development, Oversight and Training Division.

3-6. RESPONSIBILITIES OF AGENCIES

1. a. Agency Heads shall:
   1. Issue internal procedures to implement this subchapter.
   2. Appoint an agency coordinator to oversee the agency employee misconduct investigation program.
   3. Provide written authorization to individuals designated to conduct investigations of employee misconduct, including the authority to administer oaths.
   4. Authorize initiation of employee misconduct investigations. This authority may be delegated to any appropriate official at Agency national headquarters but not lower than the level of the agency coordinator.
2. Agency Coordinators shall:
   1. Insure that investigations are conducted only by individuals authorized in accordance with section 3-7 of this subchapter.
   2. Maintain liaison with OP, OIG, and appropriate agency personnel in matters relating to agency investigations.
   3. Review requests for investigations and, as warranted:
      1. Make or approve investigative assignments to designated agency investigators; and/or
      2. Refer matters not within the scope of agency investigative authority to OIG.
   4. Provide guidance and assistance to agency investigators.
   5. Review reports of investigations for sufficiency.
   6. Distribute reports of investigation to authorized officials and maintain investigative records.
   7. Perform follow-up to insure that administrative or other appropriate actions are taken in an expeditious manner.
3. Designated agency investigators shall:
   1. Conduct investigations only as assigned by proper authority.
   2. Conduct investigations in accordance with training provided by OP and OIG, this subchapter, and the Handbook for Investigations of Personnel Misconduct (available from the Agency Coordinator or the Chief, Security, Employee and Labor Relations Staff (SELRS), OP).

3-7. AUTHORIZATION OF AGENCY INVESTIGATIONS

1. Legal Authority. An employee lawfully assigned to investigate irregularities or misconduct by Federal employees may be empowered to administer oaths to witnesses (5 U.S.C. 303), witnesses may include Federal employees and non-Federal employees.
2. Requirements for Authorization. Agency Heads will give written authorization (see the Attachment for sample) to conduct investigations and administer oaths only to employees who have received:
   1. A personnel security clearance from the Chief, SELRS, based on, at a minimum, a National Agency Check and Credit (NACC) investigation; and
   2. Personnel investigator training conducted by OP and OIG; OR a waiver of training requirements from the Chief, SELRS.
      
      To obtain a waiver, a written request must be submitted to the Chief, SELRS, OP. Requests will include a description of the employee's qualifications.
      In reviewing waiver requests, the Chief, SELRS, will consider the employee's applicable experience and training, particularly experience as an investigator, employee/labor relations or EEO specialist, and legal or paralegal training. Waivers of training for employees be low grade GS-12 will rarely be granted.
3. Delegation. The Agency Head may redelegate the authority to authorize employees to conduct investigations and administer oaths to a position no lower than the Deputy for management.

3-8. CONDUCT OF AGENCY INVESTIGATIONS

1. Guidance. The Handbook for Investigations of Personnel Misconduct shall be used as a guideline for conducting investigations under this subchapter.
   Agency coordinators shall, as needed, contact SELRS or the appropriate Regional Inspector General for investigations for guidance.
2. Evidence. Agency investigators will maintain proper custody of any evidence obtained during an investigation while in their possession. Evidence, investigation documents, and reports must be stored in a locked file cabinet when not in use. The transfer of custody investigation work papers.
3. Administering Oaths. Investigators will generally record the evidence of witnesses in the form of signed sworn statements.
4. Prohibited techniques. Agency coordinators and designated investigators must avoid the use of improper investigative techniques under penalty of withdrawal of investigative authority, disciplinary action, and/or criminal prosecution. Prohibited techniques include:
   1. Monitoring or recording telephone or nontelephone conversations (or authorizing or permitting others to do so) without the advance consent of all parties, except as specifically authorized by the Inspector General. See 5 CFR 0.735-11(b)(6) and (7), and Departmental Regulation 1710-1, "Interception and Monitoring of Telephone and Nontelephone Conversations."
   2. Coercion or intimidation of witnesses.

3-9. RECORDS OF INVESTIGATION

1. Reports of Investigation.
   1. Each agency will establish its own report format(s). Reports should be prepared so that the reader can readily identify significant facts
      and locate relevant exhibits.
   2. Report distribution is limited to agency officials with authority to act on the findings and to other officials on a need to know basis.
   3. Reports of investigations will be used for official purposes only.
2. Investigative Records Systems and Security.
   1. Reports of investigations and related documents will be retained by the investigating agency in central locations and stored in a locked
      file cabinet when not in use.
   2. Investigative records are "For Official Purposes Only," with access limited to authorized personnel.
   3. Agencies will maintain an index System identifying each subject investigated by name and location. Each system, and the handling of
      information contained therein, shall comply with the provisions of the Privacy Act.
   4. Agencies will maintain and dispose of investigative records in accordance with established schedules which require:
      1. Permanent retention of significant case files which (1) gain national attention because of considerable Secretarial, Congressional
         or public interest, and (2) are deemed to be significant for investigative or litigation procedures.
      2. Destruction 10 years after the case is closed for all other files.
3. Information for OP and OIG.
   1. Agencies will provide all materials related to agency investigations to representatives of OP and OIG upon request.
   2. Agencies will provide an annual report for the fiscal year to the Chief, SELRS, on the number of investigations conducted and the results thereof. Reports are due on November 15 of each year.
4. Freedom of Information Act (FOIA). Requests for employee misconduct investigations under FOIA should be forwarded to the agency FOIA Officer for handling under existing guidelines.

3-10. RIGHTS AND OBLIGATIONS OF EMPLOYEES

1. a. Cooperation with Investigation. Employees are obligated to provide information to authorized representatives of the Department if an investigation relates to an official matter and the information is obtained in the course of employment or as a result of relationships incidental to USDA employment. This includes the furnishing of a signed sworn or affirmed statement. Failure to cooperate with an investigation may constitute the basis for disciplinary action.
   This obligation does not infringe on an employee's right to invoke the protection of the Fifth Amendment to the Constitution with regard to self-incrimination. (7 C.F.R. 0.735-23(c)). This right applies only to investigation of criminal acts - not to violation of administrative rules or regulations.
2. b. Representation. Employees have the right to representation, if they so request, when questioned during an official inquiry. Employees in bargaining units may have additional rights based on a negotiated agreement. These rights, however, may not be used to frustrate the investigative process by causing undue and unwarranted delays.

APPENDIX A

CHAPTER 751 - DISCIPLINE SUBCHAPTER 3 - AGENCY INVESTIGATIONS OF EMPLOYEE
MISCONDUCT

Sample Investigator Authorization Letter

 

SUBJECT: Authorization to Perform Investigations of Employee Misconduct

TO: (Designee)

 

You are hereby authorized to perform such official investigations as may be assigned to you regarding alleged or suspected misconduct on the part of employees or agents of [agency]. Under the provisions of 5 U.S.C. 303, you are authorized to administer oaths to witnesses and take sworn statements in the course of assigned investigations.

This authorization is subject to periodic review and may be withdrawn at any time.

 

(Signature)