A carelessly conducted investigation can compromise the investigation and, in some instances, aggravate circumstances further. Although most Compliance Officers have a responsibility to conduct investigations in response to “hotline reports” or for other reasons, conducting a full investigation of potential legal, regulatory, or policy violations is uncommon in most organizations. Most hotline issues require limited work and can be resolved within a day or two. However, all organizations will occasionally face problems that must be resolved through some form of fact gathering. The larger the organization, the more frequently this will happen. The cases requiring investigations generally arise from allegations or complaints of wrongdoing. When this occurs, someone is tasked with conducting an investigation to establish the facts related to that allegation. In most cases, the predicating evidence for an investigation suggests violations of policies, procedures, rules, standards, etc. However, on relatively rare occasions, it may suggest potential violations of law or potential civil liability. Unfortunately, it is not uncommon for someone to fumble an investigation.
Emil Moschella, JD and Al Bassett, JD are both retired Special Agents and executives of the FBI who have taught at the FBI’s National Academy. They note that the five most common mistakes made in conducting an internal investigation include:
- Mishandling the initial contact by complainants;
- Failing to act promptly in response to the complaints;
- Inadequate planning of the investigation to focus on specific objectives;
- Not using properly trained personnel to conduct the investigation; and
- Not controlling the interview process to ensure gathering of the best information available.
If the Compliance Office is going to step up and tackle a situation requiring an investigation without fumbling it, they must be prepared. A little forethought can help providers avoid many common pitfalls associated with investigations. Failing to properly prepare will lead to poor results and, in some cases, potential liability. Moschella and Bassett offer the following advice:
15 Tips to Avoid Mishandling an Investigation
- Thoroughly assess the allegations or complaint for credibility, as well as which laws, regulations, policies, or code provisions may be implicated.
- Determine required resources, personnel, and the necessary time frame for resolving the issue.
- Ensure personnel conducting investigations are suitably trained and able to prepare a proper written report at the end of the investigation.
- Establish the respective roles of the Compliance Office and Legal Counsel in a policy document in advance of any investigation.
- Determine the scope of what needs to be done and develop an investigative plan that includes what information is known, who may know needed information, and any needed documents.
- Assemble needed documents and have them available before conducting interviews.
- Plan for each interview, recognizing there are different approaches, needed complainants, witnesses, and subjects.
- Understand the limitations on authority in conducting an internal investigation, including the absence of any government legal authority.
- Respect the rights of all participants and recognize that in unionized organizations there are more boundaries on the investigator’s authority.
- Remain objective and do not allow personal feelings to interfere with gathering facts and evidence to avoid prejudicing results.
- Do not expect witnesses to accurately remember details that may also be influenced by personal prejudice or experience; anything they provide must be verified.
- Avoid taking shortcuts that might undermine the accuracy or completeness of the investigation.
- Carefully document all evidence acquired and interviews conducted.
- Maintain records of the investigation under “lock and key” in an area with limited access.
- The investigative report must include all relevant aspects of the inquiry and be presented in a thorough, accurate, objective, understandable, and logically organized manner.
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