Know Your Rights
How to Survive a DOI Investigatory Interview
By JAMES A. BROWN
This column has repeatedly addressed the kinds of disciplinary proceedings faced by public employees. For example, prior columns have highlighted the advantages and disadvantages of arbitration versus the Civil Service Law § 75 proceeding.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

While there exist various differences between arbitration and the Section 75 proceeding, virtually all disciplinary matters begin the same way — with the service of charges and specifications. Disciplinary charges typically originate with a supervisor or manager who may recommend discipline; in other instances, the New York City Department of Investigation (DOI), after conducting an investigatory interview, may make the recommendation.

Today's column addresses the source of DOI's authority to interview you and what you should expect (and do) at a DOI investigatory interview.

DOI's Jurisdiction

DOI's powers and duties are set forth in the New York City Charter. Specifically, City Charter Section 803 provides that DOI is empowered to conduct investigations which "may be in the best interests of the city" including investigations of city personnel. At any investigatory interview, DOI has the authority to place you under oath to compel truthful answers.

After an investigatory interview, DOI must prepare a written report, which it then forwards to your agency. If criminal conduct is uncovered, DOI will also forward the written report to the District Attorney, the United States Attorney or other appropriate law-enforcement bureau. If the investigation uncovers evidence that you are involved in some "conflict of interest," the written report will also be forwarded to the Conflicts of Interest Board.

In 1978, Mayor Koch issued Executive Order No. 16 requiring all city agencies to have their own "Inspector General" who reports to the agency head as well as to DOI. The Executive Order describes an Inspector General's broad jurisdiction to investigate corruption and other criminal activity, conflicts of interest, unethical conduct as well as misconduct and incompetence.

Executive Order No. 16 also describes aspects of the actual DOI interview process. According to the Executive Order, you must answer any questions regarding your official duties once you are advised that your statements (and any information derived from said statements) may not be used against you in any subsequent criminal prosecution. The Executive Order also provides that your refusal to answer interview questions may result in your termination of employment "or other appropriate penalty."

Practical Tips

In my practice, I have represented employees at DOI interviews for the following alleged misconduct: residency requirement violations; misuse of workplace computers; theft of time; misusing official time to advance a second job; misappropriating city money and sexual harassment.

At investigatory interviews, your objective is to "get in and out" as quickly as possible. Your answers to questions should be short — ''yes" and "no" answers are generally best. Also, you must tell the truth when interviewed. As noted above, you will be under oath, and failing to tell the truth may subject you to disciplinary charges for making false statements.

It is important to understand that the investigators, as friendly as they may appear, have a job to perform. Accordingly, you should never become too familiar or "chatty" with them. You must also resist the temptation to try to "even the playing field" by asking your own questions of the investigators. I am often amazed, after advising a client not to speak unless asked a question, how often that same client will question an investigator. I can assure you that your questions, regarding who complained about you or whether you can see any written statements charging you with misconduct, will go unanswered and will invariably lead to unwanted follow-up questions from the investigators.

Finally, you should know that if you are served with disciplinary charges after a DOI interview, your fate is not necessarily sealed. In any subsequent disciplinary proceeding, the burden of proof still rests with your employer and you get to examine the evidence against you and to cross-examine witnesses. Thus, there will be a time and place for you to be vocal and to argue your case; however, that time is not during the investigatory interview itself.