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Federal employees must cooperate and provide testimony, information, and documents during OSC's investigations. The same rule requires federal agencies to make employees available to testify, on official time, and to provide pertinent records. It is unlawful for agency management to retaliate against a person for providing information to OSC. If necessary, OSC may issue subpoenas for documents or the attendance and testimony of employees. During an investigation, OSC may require employees and others to testify under oath, sign written statements, or respond formally to written questions.
Generally, the information you provide to OSC will remain confidential. Information in OSC investigative files is protected from disclosure under the Freedom of Information Act. Neither the complainant nor the agency will ordinarily have access to information provided to OSC. In a limited number of cases where OSC determines that a violation has occurred, OSC may include the information gathered in an investigation in a report to your agency, the MSPB, or the Office of Personnel Management.
For more information, see Your Role in an OSC Investigation.
Subjects are agency officials or employees who are responsible for the personnel action(s) or other prohibited activity at issue in the investigation. OSC routinely interviews such officials to obtain information about the allegations in the complaint. If OSC finds that an agency official or employee committed a prohibited personnel practice or Hatch Act violation, that individual may be subject to disciplinary action. For this reason, some, but not all, of the persons OSC designates as subjects request legal representation during their interviews.
Witnesses are individuals who have or may have information about the matter under investigation. For example, they may be personnel officials, co-workers of the complainant, or other persons who have knowledge of events related to the complaint. Witnesses seldom request to have legal representation because they are not the persons responsible for the actions at issue in the complaint.
OSC permits subjects and witnesses to have a personal legal representative at interviews. You are responsible for arranging for your own legal representation. If you decide that you want to have a personal legal representative present during your interview, you must inform OSC before the interview and provide OSC with a completed Designation of Personal Legal Representation form. Both you and your attorney must sign the form.
There can be ethical implications for agency counsel to act as the personal legal representative of a subject or witness who is or was an employee of the same agency. OSC will permit agency counsel to attend interviews only if, in their personal capacity, they represent the individual being interviewed, and not the agency, for purposes of the matter under investigation. If agency counsel is not personally representing the individual being interviewed, he/she is not permitted to attend the interview. To protect subjects and witnesses and to prevent conflicts of interest from compromising the OSC investigation, the Designation of Personal Legal Representation form contains specific language addressing those situations where individuals request to be represented by agency counsel. Agency liaisons and points of contact should not serve as the personal legal representatives of any subject or witness.
For more information, see Policy Statement on Personal Legal Representation at Interviews.
OSC is authorized by law to investigate and seek appropriate corrective and disciplinary action for:
Activities prohibited by any civil service law, rule, or regulation (including any activity relating to political intrusion in personnel decision making);
Arbitrary or capricious withholding of information under the Freedom of Information Act (generally, OSC requires final agency action on a FOIA request and appeal, or a court decision finding improper withholding of information available under the FOIA before taking action on these claims); and
Involvement by any employee in any prohibited discrimination found by a court or administrative authority to have occurred in the course of any personnel action.