Agencies investigate their employees’ discrimination complaints using trained agency employees or contractors and methods such as live interviews, document collection, and written questionnaires and affidavits. The Equal Employment Opportunity Commission provides agencies specific guidance on how to do this.
For years, there has been a debate over the proper role of agency attorneys advising management officials during EEO investigations. EEOC Management Directive (MD) 110 mandates that an agency’s EEO office and agency counsel remain separate. It also states that agencies “must avoid conflicts of position or conflicts of interest as well as the appearance of such conflicts,” and that they “cannot allow ‘intrusion’ on investigations by Agency Counsel.” But the directive does not explain what would be considered an intrusion.
In a February 2011 EEOC case called Rucker v. Department of the Treasury, the allegation of improper conduct by agency counsel came squarely before EEOC. Rather than ruling on the issue, EEOC stated, “[w]e do not make any findings with regard to this contention.” However, EEOC cautioned the agency “that it should be careful to avoid even the appearance that it is interfering with the EEO process.”
In the wake of the Rucker decision, several observers took the view in published articles that agency counsel should have no involvement in federal-sector EEO investigations. The articles claim that agency counsel participation creates “appearance problems,” “conflicts” and “unfairness.” However, these claims rely on faulty premises and are unsupported, and indeed contradicted, by legal authority.
Most of these claims relate to MD 110’s general statements about “avoid[ing] conflicts of position or conflicts of interest,” and maintaining “the appearance of impartiality.” However, if agencies comply with the requirement to separate the EEO office and agency counsel, none of these claims casts doubt upon the propriety of agency counsel involvement during the investigative process.
The laws governing conflicts of interest and the appearance of conflicts all rest on the same fundamental premise: An employee or attorney should not participate in a matter in which he has conflicting interests, such that his loyalty or impartiality could be called into question. There is no conflict of interest or appearance issue implicated by agency counsel participation in EEO investigations. Agency counsel’s role is to represent the agency’s legal interests.
That role does not change in any stage of the process. Agency counsel is representing the agency’s interests when providing advice, when representing the agency during an investigation, and when representing the agency during litigation. Because agency counsel’s role remains consistent throughout the process, there generally would be no reason to call into question the attorney’s loyalty or impartiality, and involvement in EEO investigations would not violate conflict-of-interest laws.
Similarly, several articles cite the potential danger of “witness coaching” as justification to disallow agency counsel participation. In fact, agency counsels, like all other attorneys, have a right — and obligation — to prepare witnesses. What the law prohibits is an attorney improperly influencing a witness, or unethically inducing a witness to testify falsely. Agency counsel involvement in EEO investigations creates no greater danger for unethical behavior on the part of an attorney than any other situation involving witness preparation, including hearing preparation, which even complainants’ counsel concedes is appropriate.
Perhaps most importantly, the Administrative Procedure Act grants agencies and individuals the right to be represented during investigations. Moreover, because there is no restriction on complainants’ counsel participation, prohibiting agency counsel involvement would create an unbalanced, unfair system.