By Jim Sullivan

Your local government receives a complaint that an employee or vendor is involved in serious misconduct that warrants an investigation and opens a floodgate of concerns that require a thoughtful and reasoned response. What should you do?

Before initiating an investigation, you need to consider five questions that will dictate your response and direct any further actions.

1. Is the complaint credible?

Before determining a course of action, evaluate the evidence or allegation that has been initially presented. An organization that responds to all allegations concerning its employees and vendors risks investing inordinate resources and expense chasing spurious claims.

Although anonymous complaints can be reliable, the complaint must be assessed on the information provided. A person with specific knowledge of wrongdoing may choose not to identify himself when making a complaint, yet the evidence provided may show signs of credibility.

Specific facts and detailed information provide insight into the complainant’s knowledge base. In essence, don’t discard anonymous complaints. Be sure to evaluate the allegation and the evidence presented.

If the complaint comes from an identified source, begin your due diligence and inquire further. Question the complainant about her firsthand knowledge of the issue.

Try to determine if the complainant is passing on information overheard from others or inferences made from other people’s comments. Seek to identify others who can corroborate the allegation or provide further evidence.

2. Does the nature of the allegation warrant notification to outside agencies?

Certain alleged misconduct must be reported to the appropriate agency for investigation. Child abuse or neglect allegations, for example, require that mandated reporters notify the local child welfare agency. Administrative regulations may require that sexual harassment allegations be reported to a specific agency official for follow-up. Grant providers may include provisions in awards requiring immediate notification of alleged malfeasance.

The list of possible notifications goes on. Public housing agencies may be obligated to report allegations to the U.S. Department of Housing and Urban Development; schools may be required to report allegations to a local or federal oversight board; and allegations about breaches of environmental or safety protocols may need to be reported to the appropriate state or federal agency.

If the complaint alleges criminal conduct, you may want to notify local law enforcement. Keep in mind, however, that government employees’ rights differ based on the nature of the investigation. Government organizations can conduct an administrative investigation into criminal conduct while still preserving the use of evidence in a subsequent criminal proceeding.

But an administrative investigation can also secure evidence—an admission or evidence obtained following an administrative interview—that cannot be used in a criminal proceeding. Likewise, search-and-seizure rules vary slightly in an administrative investigation from the traditional and limited exceptions to the exclusionary rule, which precludes admission of evidence obtained in violation of a defendant’s rights.

Any of these required notifications may dictate if or how you and your organization can respond to the allegations.

3. What is the employee’s status?

The response to an allegation against a member of a collective bargaining unit may be dictated by the terms of the collective bargaining agreement (CBA). Union employees may be guaranteed certain rights, including the right to be notified about allegations of misconduct. Knowing and understanding these rights helps an organization navigate the investigative process.

In addition, at-will employees traditionally have fewer rights than career service, civil service, or non-exempt employees. CBAs may grant employees the right to arbitration to contest discipline. As such, the investigative process may vary based on the level of proof necessary to enact discipline and the forums in which the evidence will be presented.

Contractual obligations may also determine the requirements of an investigation of a vendor and the forums where investigative results are presented. Similarly, an organization’s debarment policy may identify specific, prohibited conduct and resultant sanctions.

Knowledge of the provisions of CBAs and vendor contracts further helps determine the appropriate course of action following an allegation of employee or vendor misconduct.

4. Who will conduct the investigation?

After you have determined that the complaint has sufficient credibility to warrant an investigation, you must determine who will conduct the investigation. Local governments don’t always have an internal investigative department equipped to follow-up on an allegation.

Or they can’t provide a comprehensive response without violating rights guaranteed the employee or vendor by contracts, rules, or laws. Some investigative units may not possess the necessary skill sets or have the breadth of knowledge to conduct complex multilayered investigations.

“Sunshine” and Freedom of Information laws or other transparency provisions also may require disclosure of the results of investigations. This disclosure could be detrimental to the organization, the discipline process, and actions for civil recovery from vendors.

Organizations might have outside counsel hire a specialist or investigative service for sensitive investigations and use attorney-client privilege to protect disclosure of the results of the investigation.

A law enforcement investigation may be the appropriate response to criminal allegations, but law enforcement involvement may preclude disclosure or use of the evidence by the organization in an administrative proceeding if evidence was obtained through the use of a grand jury.

Likewise, many law enforcement agencies and prosecutor offices may preclude their agents from testifying at an administrative proceeding before the disposition of the criminal charges.

Obviously, a clearly administrative rule violation should be investigated by the organization or outside consultant. Criminal allegations warrant critical decision making up-front, and knowing the consequences of those decisions helps guide the process.

5. Who else knows about the complaint or misconduct alleged?

After a complaint has been made and evaluated, you must determine if there is an immediate need to secure any relevant evidence. If alleged wrongdoers have knowledge of the allegations, can they destroy evidence? If so, evidence should be secured, computers backed up, or passwords changed to reduce the possibility or impact of attempts to destroy evidence.

If the complaint has been broadcast outside the agency, will it draw the attention of local media? If so, you must determine how media attention affects the decision-making process for all the issues discussed above and if the unwanted attention requires a response.

Also, keep in mind that media attention could bring additional complainants and witnesses out of the woodwork. Apprehensive whistleblowers may feel more at ease if they know others have also complained and follow-up is imminent.

An internal investigation presents many hurdles and exposes an organization to many risks. Thoughtful, informed decision making from the onset will help local governments navigate critical issues, including resource allocation, compliance, employee rights, and outside scrutiny.

Think about the five crucial issues outlined above to help save time and money, and perhaps the reputation of your organization.

Jim Sullivan is director, dispute advisory services, Sikich LLP, Chicago, Illinois (jsullivan@sikich.com).

 

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