|Investigatory Interview Procedures
If you are an IRS bargaining unit employee and are being interviewed by a Treasury Inspector General for Tax Administration (TIGTA) investigator, TIGTA believes that you should know what to expect in an interview, and what is expected of you. The following is a list of procedures that TIGTA generally follows when conducting interviews of bargaining unit employees.
- Any bargaining unit employee who is the subject of an investigation, or who is being interviewed as a third party witness, and who reasonably believes that an interview with a TIGTA investigator may result in disciplinary action by IRS has the right, upon request, to representation by a person designated by the Union.
- Absent concerns about an individual’s personal safety or other specific investigative concerns, TIGTA investigators will contact an employee’s manager to schedule an interview with an employee. At the time of the contact, the investigator will advise the employee’s manager of the general subject of the interview, including whether the interview involves criminal or non-criminal matters, if known. The investigator will also generally advise the manager if the employee is the subject of an investigation or a third party witness.
- If TIGTA investigators contact the employee directly to schedule the interview, the investigator will inform the employee of those matters in paragraph 2, above, in addition to the following:
- that if the employee reasonably believes that the interview may result in disciplinary action, the employee is entitled to representation during the interview by a person designated by the Union; and,
- that the interview will be scheduled to allow the employee an opportunity to seek the counsel of a Union representative, provided that this does not unduly delay the interview.
- If the employee is being interviewed as the subject of the investigation and fails to bring an executed IRS Form 8111 to the interview, the TIGTA investigator will give the employee a copy of the form to execute or instruct the employee to retrieve the original Form 8111. The employee will execute Form 8111 and provide the original form to the TIGTA investigator prior to the interview. The employee shall be given a copy of the executed Form 8111.
- If the employee is being interviewed as a third party witness, the TIGTA investigator will provide the employee with IRS Form 9142 before beginning the interview. When an employee is provided Form 9142, the employee shall acknowledge receipt and be given a copy of the executed form.
- If the interview is employee-initiated, there is no obligation to inform the employee of the right to Union representation before beginning the interview. If, however, at any time during the interview, the TIGTA investigator should reasonably believe that the information offered by the employee could result in discipline of the employee, the employee must then be advised of his or her right to Union representation.
- If an employee appears for a scheduled interview without Union representation and reasonably believes, because the subject matter of the interview has changed, that disciplinary action may result, the employee may request a brief delay to secure Union representation.
- If an employee is represented in an interview and the subject matter of the interview changes to matters over which the employee and the representative have not conferred, the employee or the representative may request a brief recess to confer on such issues.
- When scheduling an interview with an employee who is the subject of an investigation, the TIGTA investigator will inform the employee of the general nature of the matter and whether it concerns criminal or administrative misconduct. In cases solely involving administrative misconduct, if the employee refuses to respond to questions, the employee shall be advised of the following:
Pursuant to 214.1 of IRM 0735.1, when directed to do so by TIGTA or other competent Treasury or Internal Revenue Service authority, employees must testify or respond to questions in matters of official interest. Employees must give such testimony, or respond to questions, under oath when required or requested to do so. Your failure to respond as required may result in severe discipline including removal.
- At the outset of a custodial interview regarding possible criminal conduct of an employee who is the subject of the investigation, the TIGTA investigator shall give the employee a statement of Miranda rights contained on IRS Form 5228. If the employee waives his or her rights, the employee shall so indicate by signing the Form 5228, and shall be given a copy of the executed form.
- When the subject of an investigation is being interviewed regarding possible criminal conduct and the interview is non-custodial, at the beginning of the interview the TIGTA investigator shall give the employee a statement of rights contained in Form 5230.1
- In an interview involving possible criminal conduct where prosecution has been declined by appropriate authority, at the beginning of the interview the TIGTA investigator shall give the employee a statement of the Kalkines warning. The warning shall contain the following language:
You are here to be asked questions pertaining to your employment with the Internal Revenue Service and the duties that you perform for the IRS. You have the option to remain silent, although you may be subject to removal from your employment by the Service if you fail to answer material and relevant questions relating to the performance of your duties as an employee. You are further advised that the answers you may give to the questions propounded to you at this interview, or any information or evidence which is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to a criminal prosecution for any false answer that you may give.When employees are given the Kalkines warning, they shall be given IRS Form 8112. Employees will acknowledge on IRS Form 8112 the receipt of the above warning. Employees shall be given a copy of the executed IRS Form 8112 for their own records.
- When the person being interviewed is accompanied by a Union representative, the representative’s role in both criminal and non-criminal cases includes, but is not limited to, the following rights:
A representative may not transform the interview into an adversarial contest.
- to clarify the questions;
- to clarify the answers;
- to assist the employee in providing favorable or extenuating facts;
- to suggest other employees who have knowledge of relevant facts; and,
- to advise the employee.
- Once it is determined that an investigation is not criminal in nature or once prosecution is declined, the Union and the employee may request a reasonable delay of the interview. The request shall not be unreasonably denied.
- Either party may manually and/or mechanically record TIGTA interviews. The role of any person other than employees or their representatives in the recording of the interview shall be subject to applicable confidentiality provisions. The recording may not unreasonably delay the interview. An employee who chooses to record an interview must provide TIGTA personnel with advance notice of the decision to record sufficient to permit the TIGTA investigator to arrange for TIGTA to record the interview.
- If TIGTA investigators have determined to use a Statement Analysis Questionnaire in an investigation, employees are entitled to utilize all applicable provisions of these procedures, if appropriate, that apply to the subjects of investigations, including Miranda and Kalkines.
- As prescribed by the Privacy Act (and only in non-criminal matters), TIGTA investigators shall endeavor to collect information, where practicable, directly from the subject individual if the information may result in adverse determinations about an individual’s rights, benefits and privileges under federal programs.
- In interviews regarding possible criminal conduct when the employee interviewed is represented by counsel, and when the TIGTA investigator is on reasonable notice of such representation, the employee’s counsel shall have authority to represent the employee during the interview. TIGTA investigators on reasonable notice of such representation shall not initiate ex parte communication with the employee.
1 Form 5230 replaces Form 5229