What Happens After the Whistle Blows How to Handle Whistleblower Complaints

Transcription

1 SCCE Higher Education Compliance Conference What Happens After the Whistle Blows How to Handle Whistleblower Complaints John Lohse Wendi Delmendo Judith Rosenberg University of California Personnel Overview 189,100 Employees 58,200 Academic Personnel 130,900 Administrative Staff 3,900 Department of Energy Staff 222,000 Students As of April

2 University of California Structure 10 Campuses 5 Medical Centers Office of the President 1 Department of Energy National Laboratory 16 Health Professional Schools 4 Law Schools California s only public Veterinary School Agriculture & Natural Resources Program Statewide Presence & Impact 3 Policy on Reporting & Investigating Allegations of Suspected Improper Governmental Activities California Government Code 8547 University of California Whistleblower Policy University of California Whistleblower Protection Policy 4 2

3 To adhere to the spirit of the state whistleblower statutes by creating 1. an environment in which suspected improprieties are brought forward without fear of retaliation and Policy Objective 2. mechanisms that ensure an appropriate institutional response to all suspected improprieties (not just whistleblower reports). 5 Definitions Improper Governmental Activity: Any activity by a state agency or by an employee that is undertaken in the performance of the employee s official duties,. whether or not that action is within the scope of his or her employment, and that: (1) is in violation of any state or federal law or regulation including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty. or (2) is economically wasteful, involves gross misconduct, incompetence, or inefficiency. (3) May also include a serious violation of University policy. 6 3

4 Definitions Protected Disclosure: any good faith communication that discloses or demonstrates an intention to disclose information that may evidence 1. an improper act or 2. any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition. 7 Key Concepts Can be oral Can be made to line management OR to a University official with implied authority to act Malicious intent does not nullify the potential validity of allegations Frivolous complaints may themselves be IGAs Confidentiality 8 4

5 Allegations by Type (7/1/11 3/31/12) Allegations by Category (System-wide) Total Campus Climate Issues 112 Conflict of Interest/Commitment 37 Discrimination/Harassment 54 Economic Waste/Misuse of Resources 55 Fraud, Theft or Embezzlement 55 Inquiry/Concern 76 Other Allegations 9 Privacy Violations/Computer Security 20 Public/Environmental Health & Safety 13 Research/Academic Misconduct 26 Retaliation or Retribution 42 Workplace Misconduct 135 Grand Total 634 Privacy Violations/Computer Security 20 3% Inquiry/Concern 76 12% Allegations by Type (7/1/11 3/31/12) Public/Environmental Health & Safety 13 2% Research/Academic Misconduct 26 4% Retaliation or Retribution 42 7% Workplace Misconduct % Fraud, Theft or Embezzlement 57 9% Economic Waste/Misuse of Resources 55 9% Discrimination/Harass ment 54 8% Conflict of Interest/Commitment 37 6% Campus Climate Issue % 10 5

6 160 Allegations by Type (7/1/11 3/31/12) Anonymous Identified Processing Whistleblower Complaints Key Players in the Whistleblower Process Whistleblower Respondent Locally Designated Official (LDO) Investigations Work Group (I Group) 12 6

7 Who Performs Investigations? Academic Personnel Animal Research Office Disability Coordinator Environmental Health & Safety Health Sciences Compliance Officer Human Resources Labor Relations Employee Relations EEO/AA Risk Management Student Judicial Affairs UCOP Investigators Institutional Review Board Internal Audit Management, overseeing ad hoc external processes Medical Staff NCAA Compliance Officer Office of the General Counsel Privilege & Tenure Committee Research Administration Retaliation Complaint Officer Title IX Officer University Police 13 Processing Whistleblower Reports UC Davis Investigations Workgroup Standing committee charged by Provost/EVC Committee composition Monthly meetings Other consultation 14 7

8 Processing Whistleblower Reports Factors to consider: If the allegations were true, would it constitute an improper governmental activity (IGA)? Do the allegations provide a sufficient basis to investigate? Requesting additional information from the Whistleblower in order to make this determination But what if it was an anonymous report? 15 Duty to Investigate Formal Complaint is not Required Observations of workplace activity Outside agency reports a complaint Anonymous complaints Unrelated investigation reveals new allegations of possible wrongdoing Complainant does not want an investigation or indicates will handle 16 8

9 Procedural Overview Reporting Process = Funnel to LDO Triage Process by LDO & I Group (Two pronged test If True & Sufficient Basis) Investigation within natural jurisdiction OR Referral to Management Communications, Coordination & Monitoring by LDO Report to management, IGA source & others as appropriate 17 universityofcalifornia/edu.hotline report in English or Spanish report in any language 18 9

10 Case Management Features Automatic notification of all new cases, by location & issue Restrict access of implicated parties Follow up with anonymous reporters Associate multiple issues to case Assign cases to investigators Relate cases Search cases by keywords Identify participants & outcomes Document issue Attach files (textual, video, audio) dispositions Assign Tasks Agency engagement Set Reminders information Analytics, Pivot Charts & Custom Ad Hoc Queries 19 Investigation Reports University of California Whistleblower Protection Policy Purpose to provide sufficient detail to enable the Chancellor to make an independent determination as to whether a policy violation occurred. University of California Whistleblower Policy Purpose To report results of fact finding and analysis related to cases of alleged Improper Governmental Activities (IGA)

11 Necessary Information Allows review of facts for independent analysis Provides summary of factual issues based on all information investigator obtained Explanation of basis for factual determinations (credibility analysis, consistent or inconsistent statements from witnesses or parties) 21 Necessary Information Provides insight into interviews and additional information about witnesses and parties Comments on demeanor Discussion of possible bias and motives for statements (relationships, prior complaints) Analysis of the reason witness, complainant or accused are more credible than others who provide conflicting information 22 11

12 Internal Choice of Investigators Cost effective Organizational knowledge Impartiality Position in organization Relationships with parties Chain of command concerns 23 Outside Internal Investigators Ethics, Compliance and Audit Services Another campus Oversight by external organization 24 12

13 External Choice of Investigators Expense issues Relationship between organization and investigator Relationship between attorneys and investigators 25 Training, Experience and Credentials Background Subject matter expertise Investigations in similar organizations/similar complaints Credentials and licenses 26 13

14 Investigation Plan, Interviews and Report Witness list Documents Clear statement of complaint and purpose of investigation Admonitions re confidentiality and retaliation 27 Experience Number of investigations Balanced work for management and employees Findings on prior investigations Knowledge of critical steps 28 14

15 Witness List Presents information to demonstrate relationships between witnesses, complainant and accused Names Title When interviewed How interviewed (phone, in person) Anyone else present during the interview 29 List of Documents Provides opportunity for independent review of documents Documents reviewed or relied on for conclusions Should be attached as exhibits 30 15

16 Witness Statements Allows independent evaluation of information obtained and relied on Complete statements, not just summaries Include any concerns witnesses raise about the interview or process Location of interview could be important to document confidentiality of interview if it becomes an issue 31 Credibility Provides insight into interviews and additional information about witnesses and parties Comments on demeanor Discussion of possible bias and motives for statements (relationships, prior complaints) Analysis of the reason witness, complainant or accused are more credible than others who provide conflicting information 32 16

17 Findings of Fact Provides summary of factual issues based on all information investigator obtained allows review of facts for independent analysis Explanation of basis for factual determinations (credibility analysis, consistent or inconsistent statements from witnesses or parties) 33 Just How Good Is That Investigation Practical Tips No two investigations are identical but the employer s role should be the same: Investigate allegations fully, promptly, fairly and take prompt corrective action. Failure to investigate properly can result in costly litigation and loss of workplace morale/effectiveness 34 17

18 Factors That Can Be Different in Every Investigation Scope of the investigation Choice of investigator (Inside or External) Investigation plan, interviews and report Number of witnesses interviewed Records or electronic evidence Resources involved multidisciplinary teams 35 Understand the Complaint What Policy is Potentially Violated Know what issues you are investigating Result of not understanding the complaint Failure to conduct a proper investigation Failure to investigate the right issue Assignment of wrong investigator Interviewing the wrong employees Reaching an incorrect conclusion 36 18

19 Contact Information John Lohse Director of Investigations Office of the President at Wendi Delmendo Chief Compliance Officer, UC Davis at Judith Rosenberg, Principal Investigator Office of the President at 37 19