Conducting internal investigations of disclosures received under the Public Servants Disclosure Protection Act

Table of Contents

An investigation is a systematic process of gathering evidence in order to prove or disprove the validity of a set of allegations. The investigator is required to obtain and evaluate information regarding the circumstances and facts surrounding an allegation or set of allegations in a fair and impartial manner. Based on a balance of probabilities or a preponderance of the evidence, the investigator will determine if the allegations are founded, unfounded or partially founded. An internal administrative investigation is a distinct and independent process from a criminal investigation.

Principles of Good Administrative and Internal Investigations

  • Timely
  • Objective
  • In accordance with administrative fairness and due process
  • Systematic, orderly, planned
  • Discrete
  • Confidentiality maintained
  • Sensitive information protected
  • Timely corrective action as a result

Role of the Senior Officer

In the majority of cases, the Senior Officer has three main responsibilities with respect to investigations:

  • Receiving, screening, and preliminary analysis of disclosures of wrongdoing allegations,
  • Selecting, mandating and managing the investigation team; and
  • Reviewing the report of the investigators’ findings, and making recommendations to the Chief Executive.

Rarely will the Senior Officer conduct or lead the investigation him or herself, but personnel working for the Senior Officer may conduct the investigation directly on his or her behalf.

Supervisors

Under Section 12 of the PSDPA, public servants may make disclosures to supervisors. Supervisors should follow the procedures their organization has established. For more information, please see “Information for Supervisors at all levels on the Public Servants Disclosure Protection Act.

The Investigation Process: General Stages of the Investigation

1. Initiation Stage (Receipt, screening, and preliminary analysis of disclosures of wrongdoing allegations)

1.1 Receiving and screening the disclosure: The Senior Officer must ensure that the allegation or set of allegations received from the discloser is clear enough to prepare terms of reference or a mandate for the investigators to conduct a preliminary analysis of the situation.

1.2 Preliminary Analysis: Once the allegation or set of allegations has been clearly articulated, the Senior Officer will

  • Conduct or see that a preliminary assessment is conducted as to the validity and credibility of the information provided;
  • Ascertain possible sources of information that would provide sufficient evidence to prove or disprove the allegations;
  • Identify critical issues that may require immediate attention, such as on-going concerns, urgent safety or security matters, or potentially criminal acts; and
  • Identify other subject matters that should be addressed by another process or authorities.

1.3 The outcomes of the initiation stage

  • A decision is made to proceed or not to proceed to a formal investigation, with substantiated rationale for either decision.

1.4 Terms of Reference (Mandate) for the Investigation

  • If the investigation is to proceed, terms of reference or mandate for the investigator(s) must be prepared. The terms of reference will include the scope of the investigation and the investigators’ responsibilities for informing witnesses of their rights and obligations.
  • The terms of reference will also include a preliminary list of the witnesses that may be interviewed and the data or documentary evidence needed. Authorizations that may be required from various sources to conduct the investigation should be identified, as evidence may be under the control of other sections or there may be a need to inform senior personnel that access to documentation or personnel may be required.
  • The terms of reference will also include an analysis of the resources needed to conduct the investigation, both human and financial. This analysis should take into account the skill sets needed, the linguistic competencies, the departmental resources to be consulted (legal, HR, finance, etc, if required) and the estimated budget for the investigation.

2. Execution Stage (Selecting, mandating and managing the investigation team)

2.1 Selecting the team: The Senior Officer may choose to use internal specialist resources, such as security, IT security, internal audit or financial analysts, only if there is no potential for conflict of interest in the matter to be investigated, and if confidentiality can be assured. It may be necessary to contract the investigation out to a reputable consulting firm with background in such areas as forensic accounting or security. The Senior Officer should ensure that the contract addresses such issues as security and clearances, custody of working papers, and standards to be used for the investigation.

2.2 Investigation Planning: Too often, insufficient attention is given to investigation planning. The investigation team should provide the Senior Officer with a more detailed investigation plan, which refines and elaborates on the preliminary estimates provided in the investigation mandate. The investigators should determine what evidence, if any, is missing and where it can be obtained, and which additional witnesses may be needed to corroborate the information and additional facts.

In addition, the investigators should include a list of potential witnesses and what questions they should be asked, and in which order the witnesses are to be interviewed. Budgeting sufficient time for interviews and document review is key. The investigation plan should include regular status reports from the investigators to the Senior Officer, and a provision for having any changes to scope, terms of reference or budget approved by the Senior Officer.

2.3 On-site investigation: Notes should faithfully reflect the testimony of those interviewed, and signed and dated by the interviewee. Interviewees may not keep a copy of their interview notes, as the information created in the process belongs to the investigation. Should the person being interviewed ask to record the interview, they should be informed that in so doing they are creating information that belongs to the investigation and they will not be allowed to retain it. Telephone interviews are to be avoided as a rule and only employed in extenuating circumstances. The purpose of documentary evidence should be clearly noted, the location or person from which it was obtained also identified, and dated.

See Annex A for tips to avoid common investigation pitfalls

3. Reporting Stage (Findings of the Investigation)

3.1 Investigators’ Report : The report is a narrative prepared by the investigation team that provides the Senior Officer with all the information required to make a final determination with respect to corrective action if required. It should be logical, clear and concise without personal opinions or extraneous comment. All relevant facts and analysis should be included. The Senior Officer is responsible for reviewing the report to ensure it is complete, that it is logical and grammatical, that all questions are answered, and that all conclusions are substantiated.

See Annex B for a sample outline of an investigation report.

3.2 Senior Officer’s Report and Making Recommendations to the Chief Executive. Based on the investigation report, the Senior Officer will prepare a separate report that clearly sets out his or her analysis as to whether the facts collected during the investigation substantiate a founded allegation of wrongdoing that meets the requirements of section 8 of the Act. The Senior Officer will then make recommendations, if any, to the Chief Executive to undertake the necessary corrective action. Even if the allegations are not established or if they do not constitute wrongdoing, some corrective actions, including improvements to the systems and possibly discipline, may still be required.

Prepared by the Office of Public Service Values and Ethics
Public Service Human Resources Management Agency of Canada
April 2007

Annex A : Investigation Pitfalls and How to Avoid Them

In the Initial Stages

  • Ensure the discloser provides a thorough complaint or otherwise request clarification on the allegations.
  • Examine the discloser’s motives to guard against rare but possible frivolous or vexatious complaints.
  • When selecting your investigator(s) guard against bias or an appearance of bias in the composition of the investigating team (for example, former supervisors of one of the parties, acquaintances, etc).
  • Make sure to select not only properly trained investigators skilled in the art of investigations but also determine need for expertise in specific areas (financial, contracting, operations, etc).

During the Investigation

  • Guard against “tunnel vision” at any stage of the investigation or when assessing a disclosure (do not draw premature conclusions)
  • Make sure that, as much as possible, the investigators conduct face to face interviews with witnesses.
  • Ensure that investigators take statements in writing and have witnesses sign them (or in the alternative record statements).
  • Ensure that investigators follow up on all leads in the interviews and go back for supplementary interviews if necessary.
  • Ensure that investigators keep good records of the investigation.
  • Make sure that all allegations included in the disclosure and all matters included in the disclosure are investigated.
  • Ensure that the respondents are aware of the allegations against them; but avoid disclosing information that could compromise evidence or witnesses.
  • The respondents must be afforded an opportunity to advance his or her side of the story before the investigation is completed.
  • Act promptly at all phases of the investigation, but an investigation conducted too hastily is as flawed as one that is not conducted in time. Take the time necessary to be thorough. An investigation can be labour intensive.
  • Keep a healthy emotional distance from all parties in the investigation.
  • Ensure that the report of findings deals with facts, with no extraneous or irrelevant information, and is written in a non-emotional, detached, and non-sensational style. Be wary of too many unsupported modifiers. Make sure that the investigators do not interject bias in the report by adding irrelevant or unsupported information.

Annex B : Sample Outline of a Report of Findings by the Investigator to the Senior Officer

Background

Brief summary of the events that gave rise to the investigation.

Example: On (date), XX (name and title) met with XX (Senior Officer)/spoke to XX (name, title, office) on the phone and alleged that (name, title, and office of respondent) had... A preliminary inquiry conducted by (name, title, office) has determined that... In light of the foregoing, (name and title) has asked XX (name and title) to conduct an investigation.

Purpose of the investigation

Example: Ascertain the accuracy of the allegation that... or: Determine the circumstances surrounding (description of event).

Persons interviewed

Alphabetical list of names (title and office, or home address for members of the public) of the persons interviewed.

Investigation

Testimony and evidence gathered presented in the chronological order in which they were obtained.

Example : When interviewed on (date) in the presence of (name of observer), XX (name, title, and office of the person interviewed) stated that:

  • he/she saw...
  • he/she observed that...
  • (one paragraph on each main point raised).
Analysis

Critical analysis including juxtaposition of facts, testimony, and evidence, with a view to identifying flaws or weaknesses, crucial points, gaps in logic, and contradictions. All relevant information should be analysed and, as required, specific references to the documents included in the investigation file will be quoted. The ideal analysis of the facts and evidence in an investigative report should bring the reader to the same logical conclusion as that reached by the investigator.

Observation

(as required) Description of non-compliance with guidelines (state which ones); identification of shortcomings in procedures; the need to review, adjust, or develop a policy, directive, etc.

Conclusion

Brief statement directly related to the purpose of the investigation. It is crucial that there be a conclusion for each allegation or each incident stated in the purpose.

Example: Through the information obtained during the investigation, it was demonstrated that the allegation to the effect that (name, title) is believed to have (repeat allegation) was founded (or unfounded); or: The witness testified to having…

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