11 1 "R~vens 11 G It O ll I' ! NC. 'JJR~vens GROUP INC. w.. r,,,,,,.,,..,,u,1 lY,Ci111 7lo lli,U! Office of Accountability and Whistleblower Protection (OA WP) Training Course Presented in Washington, DC September 9 - 13, 2019 11 '"R~vens GKOUI' INC. w... , ·,ui ·JJo ·Jli,111 11 1 JJR~vens GKOUI' IN C. w,, ·wn)l., Jli.il/ "R1tvens "R~vens GKOl 1 P IN< liir< r..i" 11,, rh..ir• Office of Accountability and Whistleblower Protection (i lllll 11 l l\T h.e1.o1n 1i., rh..it' 2019 Training AGENDA; September 9 - 13 DAY ONE 8:00 - 11:30 OAWP leadership to host an "all hands" different location 1:00 Program Check In 1:30 OAWP and the Whistleblower Protection Act Overview o o o o Definition of a Whistleblower Whistleblowers with unclean hands What constitutes a proper disclosure? Public Law 115-41 VA Accountability and Whistleblower Protection Act Prohibited Personnel Practices o What are the Prohibited Personnel Practices? o What are Prohibited Personnel Practices? *There will be a 15-minute break at 2:45 p.m. ) DAY TWO Misconduct Investigations 8:00 Why do we investigate? o Consequences of Disciplinary Actions o Identifying Proper Charges o Identifying matters that fall outside of OA WP o Common Types of Misconduct 10:00 Preparing for the Investigation o Investigator's Role o Planning the interview(s) (whom to interview, in what order, what type of warning should the witness receive?) o Staging the Interview Room o How to handle high-profile cases 11:00 Witness Rights o Union representation o Attorney representation o Issues involving criminal misconduct JI The Ravens <,K l IP l t-.T II Office of Accountability and Whistleblower Protection 12:00 Lunch 1:00 Conducting the Investigation o How to handle evidence o Non-electronic evidence o Electronic evidence o Medical evidence o Non-testimonial evidence *There will be a 15-minute break at 10:10 a.m., and at 2:45 p.m. 4:00 Adjourn DAY THREE 8:30 Answers to Questions 9:00 EXERCISE: Test Your Knowledge - Whistleblower Jeopardy 10:45 Conducting the Investigation (Continued) Cognitive Based Interviews Establishing Rapport Framing Questions Difficult Witnesses Assessing Credibility 12:00 Lunch 1:00 EXERCISE: Conducting a Cognitive Based Interview 2:00 Writing the Report Organization Statement of the Facts (Chronology) Making Findings (Reaching conclusions) Drafting Findings and Recommendations 4:00 Adjourn *There will be a IS-minute break around 10:30 a.m., and at 2:45 p.m. •R~vens C,IHll I' f f\:C'. .,..,,:..1111rt,(il..Jt' I J!I ru'.vens 11 GRO\I J' 11\:C" Office of Accountability and Whistleblower Protection DAYFOUR 9:00 Introduction of Auditors Why auditing is so important. What should a great report contain? Identifying gaps in the evidence Are the findings and recommendations substantiated by the evidence? 12:00 Lunch 1:00 EXERCISE: Audit Reports 2:45 Discuss analysis and provide one or two other reports for their review 4:00 Adjourn *There will be a 15-minute break at 10:45 a.m., and 2:30 p.m. DAY FIVE 9:00 Answer Questions 9:30 Review reports and discuss auditor findings 11:00 EXERCISE-Test Your Knowledge -Auditor Jeopardy 12:00 Lunch 1:00 Final Questions and Presentation of Certificates 2:00 Adjourn •R1ivens r. KOi ' I' I !'>t" . W-tr:.i .. , ..lrh....11 1 11 •R1vens c;Rol'P Is; (" \fl~'"'" 11,• ttu,· •R~vens Office of Accountability and Whistleblower Protection (j ~<>1 1 P I ;>.T k .. IJt111,, rtur• SYLLABUS: OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION (OA WP) TRAINING Course Description - This training will encompass comprehensive information on administrative investigations and topics that include: the importance of OA WP investigations, review of prohibited personnel practices, misconduct investigations, whistleblower retaliation investigations, and recognizing connected matters outside the scope of OA WP investigations. The training will also address how to conduct investigations and will include instruction on writing and auditing investigation reports. Course Details: In this unique five-day course on the whistleblower protection investigation and auditing process, training will include approximately 6 hours of instruction, each day, with sessions incorporating practical exercises and interactive learning. The first 3 days will focus on administrative investigations, the remaining 2 days will focus on audit reports. Training will include sessions that encompass best practices and tips for writing and auditing investigation reports. Training sessions will be 60 to 90 minutes in length. In addition to 6-hours of instruction, there will be time allotted for two 15-minute breaks, in the morning and afternoon, respectively, and one hour for lunch. Students will receive a certificate of completion. Attendees are expected to attend every session in order to obtain certificates of completion. See attached Agenda for further details. Objectives: At the completion of this course, you will be able to: • • Recognize the thirteen Prohibited Personnel Practices, and understand why whistle blower disclosures are important to the Department of Veterans Affairs (VA). Distinguish between a protected disclosure and whistleblower retaliation complaint. • Explain the process for investigating retaliation complaints. • Recognize matters that are outside the scope of OA WP investigations. • Understand evidentiary principles associated with collecting non-electronic, digital, medical, and non-testimonial evidence. • Understand witness rights during the investigation process. • Prepare for an investigation, set to the interview room and conduct cognitive based interviews. • Understand the process for conducting cognitive-based interviews. • As an investigator, you will learn best practice tips for writing an investigation report. • As an auditor, you learn best practice tips for reviewing the investigation report. Course Location: The W Hotel - Washington, DC 515 15th St NW, Washington, DC 20004. TABLE OF CONTENTS Introduction ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1 OAWP Chain of Responsibility ••••••••••••••••••••••••••••••••••••••••••••••••• 1 OAWP Mission and Values ••••••••••••.•••••••••••••••••••••••••••••••••••••••••• 1 Statement of Principles for OAWP ...........................................4 Basis of Legal Authority for OAWP ..........................................4 Quality Standards for lnvestigators .........................................5 General Standards for lnvestigators ................................5 Qualitative Standards for lnvestigators........................... 5 Quality Standards for Auditors •••••••••••••••••.•.••••••••••••••••••••••••••••• 6 Reference Materials List •••••••••••••••••••••••••••••••••••••.•••••••..•••••••••••• 7 OAWP Resources ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 11 Process Flow Charts Checklists Sample Formats 1 ) INTRODUCTION This document provides a synopsis of pertinent guidance applicable to investigators and auditors for the Office of Accountability and Whistleblower Protection (OAWP). The referenced material is derived in part from standards listed in periodicals created by the Council of the Inspector's General on Integrity and Efficiency. The complete CIGIE handbooks can be found at the following link: https://www.ignet.gov/content/quality-standards. OAWP CHAIN OF RESPONSIBILITY OAWP is a stand-alone office that is headed by the Assistant Secretary of Veterans Affairs for the Office of Accountability and Whistleblower Protection (ASA(VA)). The ASA(VA) OAWP plays a critical role in providing oversight for the VA Secretary's accountability priorities and final review. She provides advisory support to VA leadership in the guidance, coordination, direction, and evaluation of whistleblower protections and senior leader accountability throughout the Department. ) OAWP MISSION The Office of Accountability and Whistleblower Protection (OAWP) ensures accountability within the Department of Veterans Affairs (VA), receives and investigates VA whistleblower disclosures, and protects VA employees and applicants for VA employment from whistleblower retaliation. OAWP's statutory functions can be found under 38 U.S.C. § 323(c) and include: A. advising the Secretary of Veterans Affairs (the Secretary) on all matters relating to accountability; B. issuing reports and recommendations on matters addressed in subparagraph A; C. receiving whistleblower disclosures; D. referring whistleblower disclosures received by OAWP for investigation, if the Assistant Secretary for Accountability and Whistleblower Protection (Assistant Secretary) has reason to believe the whistleblower disclosure is evidence of a violation of a provision of law, mismanagement, gross waste of 2 funds, abuse of authority, or a substantial and specific danger to public health or safety; E. receiving and referring disclosures from the U.S. Office of Special Counsel (OSC) for investigation F. recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by VA's Office of Inspector General (OIG), VA's Office of the Medical Inspector (OMI), OSC, and the Government Accountability Office (GAO), including the imposition of disciplinary actions and other corrective actions contained in such recommendations; G. analyzing data from OAWP and OIG telephone hotlines, other whistleblower disclosures, disaggregated by facility and area of health care if appropriate, and relevant audits and investigations to identify trends and issue reports to the Secretary; H. receiving, reviewing, and investigating allegations of misconduct, retaliation, or poor performance involving: 1. a VA senior executive; 2. an individual employed by VA in a confidential, policy-making, policy-determining, or policy-advocating position; or 3. a supervisory employee, if the allegation involves retaliation against a VA employee for making a whistleblower disclosure; and I. making recommendations to the Secretary for disciplinary action as the Assistant Secretary considers appropriate after substantiating any allegation of misconduct or poor performance pursuant to an investigation carried out as described in subparagraph For H. OAWP'S VALUES WE 2 CARE, which stands for We engage, educate, and collaborate to improve accountability and reliability in VA for everyone. • The Win WE 2 CARE stands for We. That is, the Assistant Secretary and all OAWP staff. • The E2 in WE 2 CARE stands for engage and educate. o Engagement includes ongoing communication with whistleblowers about disclosures and investigations, investigations conducted or overseen by OAWP, and recommendations made by the Assistant Secretary for disciplinary action. 3 o Educate includes the training that OAWP has conducted and will continue to conduct for supervisors and employees. • The C in WE 2CAREstands for collaborate . Collaboration includes building trust in OAWP investigations and recommendation by maintaining ongoing dialogue and communication with stakeholders, including Congress and the public. Collaboration also includes liaising with GAO, OIG, OSC, and OMI on reports and recommendations and working with VA administrations and staff offices to ensure compliance with those recommendations. • The A in WE 2CARE stands by accountability. Accountability begins with selfaccountability. That is, employees and managers holding themselves accountable versus OAWP or another entity within VA forcing them to be accountable. • The R in WE 2CARE stands for reliability, including for individuals who use VA services; who trust VA with their lives and those of their loved ones; for entities that audit a VA, including GAO and OIG; and for Congress and the public. • The last E in WE 2 CARE stands for everyone, including individuals who use VA services, for caregivers and families who support those individuals, for VA employees and applicants for VA employment, and for Congress and the public. Statement of Principles for OAWP The Office of Accountability and Whistleblower Protection (OAWP) is committed to ensuring accountability within the Department of Veterans Affairs (VA). OAWP receives and investigates VA whistleblower disclosures and protects VA employees and applicants for VA employment from whistleblower retaliation. Basis of Legal Authority for OAWP OAWP was established by the President of the United States on April 27, 2017, under Executive Order 13793. OAWP was statutorily established by the VA Accountability and Whistleblower Protection Act of 2017, P.L. 115-41, and its functions are codified under 38 U.S.C. § 323. ) 4 Quality Standards for Investigators A. GENERAL STANDARDS: General Standards apply to investigators and the organizational environment in which they perform. The three general standards address: Qualifications - In all matters relating to investigative work, the investigative organization must be free, both in fact and appearance, from impairments to independence; must be organizationally independent; and must maintain an independent attitude. This standard places upon agencies, investigative organizations, and investigators the responsibility for maintaining independence, so that decisions used in obtaining evidence, conducting interviews, and making recommendations will be impartial and will be viewed as impartial by knowledgeable third parties. There are three general classes of impairments to independence: personal, external, and organizational. Independence - Individuals assigned to conduct the investigative activities must collectively possess professional proficiency for the tasks required. This standard places upon the investigative organization the responsibility for ensuring that investigations are conducted by personnel who collectively have the knowledge and skills required to perform the investigative activities. ) Due professional care - Due professional care must be used in conducting investigations and in preparing related reports. This standard requires a constant effort to achieve quality and professional performance. It does not imply infallibility or absolute assurances that an investigation will reveal the truth of a matter. 8. Qualitative Standards for Investigators Planning - Organizational and case-specific priorities must be established and objectives developed to ensure that individual case tasks are performed efficiently and effectively. Executing Investigations - Investigations must be conducted in a timely, efficient, thorough, and objective manner. Reporting - Reports (oral and written) must thoroughly address all relevant aspects of the investigation and be accurate, clear, complete, concise, logically organized, timely, and objective. ) Managing Investigative Information - Investigative data must be stored in a manner that allows effective retrieval, reference, and analysis, while ensuring the 5 protection of sensitive data (i.e., personally identifiable, confidential, proprietary, or privileged information or materials.). QUALITY STANDARDS FOR AUDITORS Quality standards for auditors are found in GAO-18-568G, GOVERNMENT AUDITING STANDARDS: 2018 Revision issuance. It states: Given the current challenges facing governments and their programs, the oversight provided through auditing is more critical than ever. Government auditing provides the objective analysis and information needed to make the decisions necessary to help create a better future. The professional standards presented in this 2018 revision of Government Auditing Standards (known as the Yellow Book) provide a framework for performing high-quality audit work with competence, integrity, objectivity, and independence to provide accountability and to help improve government operations and services. These standards, commonly referred to as generally accepted government auditing standards (GAGAS), provide the foundation for government auditors to lead by example in the areas of independence, transparency, accountability, and quality through the audit process. This issuance can be found at: https ://www.gao.gov/assets/700/693136.pdf. 6 The Whistleblower Protection Act: An Overview Whistleblowing, What is it All About? A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The Whistleblower Protection Act was made into federal law in the United States in 1989. GROi f> .,,.,,. 1.. , J'\( ' r... ..w Session Agenda Whistleblowing, What is it All About? 1773 Confidential letters exposed by Benjamin Franklin proved the governor of Massachusetts misled Parliament to promote a military buildup in the new world. The governor was dishonorably discharged and exiled. 1777 US naval officers Samuel Shaw and Richard Marven revealed the torture of British POWs by the commander-in-chief of the Continental Navy. The following year, the Continental Congress unanimously enacted the first whistleblower protection law. 1968 A. Ernest Fitzgerald, a Department of Defense auditor, reports a $2.3 billion cost overrun in the Lockheed C-5 aircraft program. President Nixon reportedly tells aides to fire Fitzgerald, but he's reinstated four years later. In the late 1980s, Fitzgerald plays a part in the investigation that reveals the Pentagon has purchased $200 hammers and $900 toilet seats. :., , .., .. '"' ria...1.1 Whistleblowing, What is it All About? 2004 Food and Drug Administration (F.D.A.) safety officer David Graham breaks ranks with his employer and testifies to the U.S. Senate that Merck's blockbuster arthritis drug Vioxx has killed as many Americans as the Vietnam War. Merck is forced to withdraw Vioxx from the market, and the F.D.A.'s reputation is severely tarnished. 2003 Jon Oberg, while working at the Department of Education as a researcher, discovered illegal payments to student loan lenders of federal tax dollars that department officials instructed him not to investigate. On his own time, he researched the payments and reported them to Congress, which in 2004 ended the payments prospectively, saving billions of dollars. In 2007, Oberg sued the recipients under the False Claims Act. Three years later, the Department of Justice announced it had settled four of the cases for over $57 million. 2007 Kit Foshee blew the whistle on the ammoniation process used by his former employer Beef Products Inc. (BPI) on its low-grade beef product later known as "pink slime." GROI P l\C ltr(.r• J 't• flu ,• Whistleblowing, What is it All About? Republic of South Africa Republic of Korea China Canada United Kingdom France Austraila Japan Brazil Indonesia Countries that have some version of whistleblower laws and DfO □ --- Whistleblowing, What is it All About? The Federal Government enforces protections for employees who suffer retaliation for engaging in protected activities under more than 20 federal laws. The Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(8)-(9), Pub.L. 10112 as amended, is a United States federal law that protects federal whistleblowers who work for the government and report the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant. GROl P l:'\C ·+-' ::J u QJ QJ LU V') 0 QJ !i,,_ u V, !i,,_ u QJ ro ·- "'O ::J 0 +-' 0 !i,,_ +-' ·> !i,,_... 4- > 0 a.. ·0 > ·-..c ·- !i,,_ V, X !i,,_ a. ~0 V, !i,,_ 0 ro V, > C a.. ~ 0 Office of Accountability and Whistleblower Protection OAWP MISSION: The Office of Accountability and Whistleblower Protection (OAWP) ensures accountability within the Department of Veterans Affairs (VA), receives and investigates VA whistleblower disclosures, and protects VA employees and applicants for VA employment from whistleblower retaliation. GRU\ 1 P 1r,.;r Wd:.U. I~• flur' ' '---,, OAWP'S VALUES WE 2 CARE, which stands for We engage, educate, and collaborate to improve accountability and reliability in VA for everyone. • The Win WE 2 CARE stands for We. That is, the Assistant Secretary and all OAWP staff. • The E2 in WE 2 CARE stands for engage and educate. o Engagement includes ongoing communication with whistleblowers about disclosures and investigations, investigations conducted or overseen by OAWP, and recommendations made by the Assistant Secretary for disciplinary action. o Educate includes the training that OAWP has conducted and will continue to conduct for supervisors and employees. • The C in WE 2 CAREstands for collaborate. Collaboration includes building trust in OAWP investigations and recommendation by maintaining ongoing dialogue and communication with stakeholders, including Congress and the public. Collaboration also includes liaising with GAO, OIG, OSC, and OMI on reports and recommendations and working with VA administrations and staff offices to ensure compliance with those recommendations. • The A in WE 2 CARE stands by accountability. Accountability begins with self-accountability. That is, employees and managers holding themselves accountable versus OAWP or another entity within VA forcing them to be accountable. • The R in WE 2 CARE stands for reliability, including for individuals who use VA services; who trust VA with their lives and those of their loved ones; for entities that audit a VA, including GAO and OIG; and for Congress and the public. • The last E in WE2CARE stands for everyone, including individuals who use VA services, for caregivers and families who support those individuals, for VA employees and applicants for VA employment, and for Congress and the public. ...,f:.UW1t., 'th..ar' OAWP - Integrity, Character and Ethics Character-Each investigator must possess and maintain the highest standards of conduct and ethics, including unimpeachable honesty and integrity. Every citizen is entitled to have confidence in the integrity of Government employees, particularly investigators who routinely access sensitive information .... 1mpa rtia lity Independence \ntegrated Eth\cs Honesty w, r:.i.. ,~ Jlwr' "I had taken a course in Ethics. I read a thick textbook, heard the class discussions and came out of it saying I hadn't learned a thing I didn't know before about morals and what is right or wrong in human conduct." Carl Sandburg 11·, r .,~ ,.., Ti\.lr' Article from Government Executive shows why important "The whistleblower protection office's formation was mostly celebrated, with advocates hopeful that the focus on the rights and protections for whistleblowers would reverse a culture infamous for intimidation and reprisal. That optimism has largely soured, however, leading to hotline tips to the inspector general and bipartisan scrutiny from Congress." "Employees and advocates proposed several improvements for the office, including hastening its communication with whistleblowers and ensuring independence between its investigations and supervisors potentially at fault." lit f~• l~• 'f~-'I ' Complaints focused on: • Independence between investigators and supervisors who were supposedly at fault. • More efficient use of resources • More resources to carry out the OAWP . . m1ss1on • Timeliness in conducting investigations BOTTOM LINE: YOU ARE OAWP. Your actions can help make a difference. 11,·, r...... ,.., ·r,.,.r \'---- BOTTOM LINE: YOU ARE OAWP. Your actions can help make a difference. _() "One person can make a difference, and everyone shou ld try." - John F. Kennedy . -- -- !fil±\•-,Rlvens GRot : p p..:r 111,r:.u. J'~,r~r • Ethical Dilemma exercise Ethical Dilemma Training exercise - Use your cell phones to search for real world situations that demanded ethical decision making. Once you have found a situation, analyze it as follows: • Find a dilemma that pertains to federal government. • Determine what was the actual dilemma. • What were the possible choices? • What was the actual choice taken? • What would be the best course of action? • Select a spokesperson to share your findings with the whole group. i.·, c;.u, 1..-T~.,ir' -- TAKE AWAY POINTS: 1. You are the Guardians and Ambassadors of the Agency Whistleblower Process 2. Understand to whom you can or should divulge information 3. One person can make a difference w, r;.,,, 1.,. rfl.lr• \_ QUESTIONS? p- - I I IL . ~/3/].gfg-----=:- □ ..:: --=-= - '. I - ■j - - , □ _ ■ ii ,.Ip ■ ---.. , _ . 71. ~-, \s -•) The Whistleblower Protection Act: Investigations '- ..___, Agenda Why We Investigate Where to Begin Handling Evidence Interviewing Witnesses Writing the Report '-' Why do we investigate? To protect the integrity of the process, to ensure there are no abuses when it comes to exposing potential misconduct by senior officials and supervisors, and to eliminate the perception or even the appearance of a chilling effect that would discourage employees from reporting their concerns. \_ Why do we investigate? To evaluate whether supervisors are responding constructively when employees of the Department report concerns, taking responsible action to resolve such concerns, and fostering an environment in which employees of the Department feel comfortable reporting concerns to their supervisors or other appropriate authorities. ~ •, C"'" ,._, ,..._,,- Why do we investigate? Whistleblower disclosures help to expose fraud, waste, abuse, mismanagement and threats to public health and safety. These disclosures can help save our nation billions of dollars and even prevent loss of life. . .- . IJ I - ~ I - ..... I I I - - - Where to begin? You just received information about a complaint. IAW 38 U.S.C. 323, the OAWP functions to: Receive and refer whistleblower disclosures. (c)(l)(C) and (D). Receive, review, investigate allegations of retaliation by supervisory employee for senior leaders. (c)(l)(H)(iii). Receive, review, investigate allegations of misconduct, retaliation, and poor performance of senior executives. (c)(l)(H)(i) and (ii). Is it a hybrid, which contains misconduct that should be forwarded to another agency? '..._ Where to begin? Go back to what you just learned: Whistleblower Disclosure - any disclosure of information by an employee of the VA or applicant for VA employment, which employee reasonably believes is evidence of: Violation of law, rule, or regulation; Gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety. Were criminal allegations alleged? Refer to OMI, OIG, other investigative entity (i.e. administrations/program offices). See 38 U.S.C 323 (c)(l)(D). 11,1 .... ,,... fl,.;r "--- Where to Begin? In addition to possible protected disclosures, look for allegations of retaliation by supervisory employee for senior leaders. (c)(l)(H)(iii). Look for allegations of misconduct, retaliation, and poor performance of senior executives. (c)(l)(H)(i) and (ii). '-- Where to Begin? Is the person(s) about whom the complaint is made an employee in, or applicant for a covered position within the VA? Covered Position: any position in the competitive service; a career appointee in the SES; or a position in the excepted service; EXCEPT any position excepted from the competitive service (prior to personnel action) because of its confidential, policy-determining, policy-making, or policy-advocating character; or any position excluded from coverage by the President (prior to personnel action) based on determination that it is necessary and warranted by conditions of good administration. Where to Begin? If the covered employee has authority to take, direct others to take, recommend, or approve any personnel action and Takes, fails to take, threatens to take or fail to take, a personnel action because the employee made a whistleblower disclosure. Takes, fails to take, threatens to take or fail to take, a personnel action because: the employee exercised an appeal, complaint, or grievance right granted by any law, rule, or regulation, with regard to remedying whistleblower retaliation (or other than with regard to remedying whistleblower retaliation); Where to Begin? testifying or otherwise lawfully assisting any individual in exercising such a right; cooperating with or disclosing information to OIG (or other component responsible for internal investigation or review), or OSC, in accordance w/ applicable provisions of law; or refusing to obey an order that would require the individual to violate a law, rule, or regulation. If this is the case, you are looking at ... 1r,, 1 ... l"' rt..r· \... Whi stleblower Retaliation Elements (1) Employee or VA applicant made a protected disclosure or engaged in protected activity; (2) A supervisor/senior leader with authority: (a) took, failed to take, threatened to take or fail to take; (b) a personnel action; (3) The protected disclosure or protected activity was a contributing factor in the personnel action; and (4) The supervisor/senior leader cannot establish by clear and convincing evidence that he/she would have taken the personnel action in the absence of the protected disclosure/activity. ' -- --- Whi stleblower Retaliation Examples of Personnel Actions: an appointment; a promotion; a disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment a performance evaluation; Whi stleblower Retaliation Examples of Personnel Actions (Cont.) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other action described herein; a decision to order psychiatric testing or examination; the implementation or enforcement of a nondisclosure policy, form, or agreement; and any other significant change in dutiesJ responsibilitiesJ or working conditions D I ~I• - - □ □ M isco nd uct and Poor Perfo rm ance Misconduct: e.g. Violation of policy, regulation; Engaging in improper, unsuitable conduct; Actions taken by an employee that impedes agency service or mission; or Negligent performance of duty. 38 U.S.C. 713 - " ... if the Secretary determines that the misconduct ... warrants such action." 11, , ... ,,..r.,_.r, \._ M isco ndu ct and Poor Performa nce Elements Misconduct: Lack of Candor (1) Statement(s) less than candid, truthful, accurate, or complete, involving deception; and (2) Knowingly made or withheld (i.e. knowledge of inaccuracy). Note: If employee is not aware of the inaccuracy of the statement, there is no element of deception. Does not require intent as separate element, but does require element of deception. Broader and more flexible concept. I~ - ~__L- -...I!:.:__ - I - □ .JI - ] a: ..._ -, :•..JI .• _1 \ -=.-a □ □ GRO\"P ll'-f" r.1 -- .. --I lo,r "" 10,. r ► r• ~ 1 ......... M iscon du ct and Poor Performance Poor Performance: • Less than Fully Successful performance rating; or significant performance deficiency. • Difference between misconduct and performance not as significant under 38 U.S.C. 713. • Interplay between OPM regulations and 38 U.S.C. 713. • Part 359, Subpart E of title 5, CFR (and VA Policy, Handbook 5027). • 38 U.S.C. 713 - " ... if the Secretary determines that the ... performance ... warrants such action." GROl P l:'\C i., ,..., l~• Jfi,,r• _. '-- M isco nd uct and Poor Perfo rm ance Performance: Negligent Performance of Duty (1) Failure to exercise the degree of care; (2) That a person of ordinary prudence with the same experience would exercise in the same situation. Note: If charging for the actions of a subordinate, it requires a showing that the individual knew, or should have known, of the subordinate's misconduct or failures and acquiesced to the improper behavior. Relevant factors include: Actual or constructive knowledge Existence of relevant policies; Extent of direction or acquiescence; Experience, length of service, number of subordinates ---------- -- -- ~ □ Cl □ .,,,.,.. , .... ,,.4f' '- TAKEAWAY Know what's in your lane. Being knowledgeable about the types of cases that fall within OAWP's scope of authority, will allow you to spend quality time investigating the allegations efficiently. GROIP P,r , , ...., , ,., ri,.,r Questions? Investigation Fact-finding vs. Investigation Fact-finding - more informal. Purpose • Obtain facts. • Analyze the facts and draw conclusions. • Conducted for the purpose of allowing an official to choose a course of action. • In some cases, e.g. misconduct performance, make recommendations. GROl'P 17\'C lo, I-"' J~• Jl,,,il' \_ Investigation Just the Facts! Keep an open mind Remain objective Watch out for personal biases Consider theories other than your own inclinations Ensure conclusions are supported by Findings of Fact (Critical) Investigation Just the Facts! Avoid being predisposed to a theory Avoid forcing a theory onto the facts Avoid throwing out evidence if it doesn t fit your 1 theory (If it doesn 1 t fit ... ) Investigation Scope - What are the allegations? Clarify confusing or vague terms. Be familiar throughout investigation. Identify elements, sub-issues and/or questions to be answered in the course of the investigation. Sources of information - identify sources of information (i.e. policies, e-mails, and witnesses that my have the information. Subject Matter - Assess your knowledge of the subject matter. Review any applicable collective bargaining agreements {CBAs). Witness rights Agency Obligations -~- - Investigation Things To Consider as You Proceed Consider possible cultural or diversity issues. Identify potential conflicts of interest. Does investigator/OAWP official have personal interest in outcome? Does investigator/OAWP official have personal involvement in the matter to be investigated? Does investigator/OAWP official have personal relationship with subject/target of investigation? Schedule or sequence of investigation. Information Requests and interviews. Incorporate time into your plan for the unexpected. Plan to re-interview witnesses if necessary. Plan process for witnesses to review their testimony up front. "-- Investigation Sequence of Investigation Receipt of allegations. Charge Letter for investigation. Planning the investigation. Collect pertinent documents associated with the allegations. Interview witnesses. ._, Investigation Sequence of Investigation Seek additional written information/interview additional witnesses based on existing evidence. Analyze evidence. Draft report. 852$ -· Evidence Fact: A thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence. A physical object or appearance as it actually existed. (Black's Law Dictionary) Evidence: Evidence is an available body or facts or information indicating whether a belief or proposition is true or valid. It is the information upon which you rely when making a finding of fact. It is used to prove or disprove the existence of an alleged fact. Evidence is not assumptions, speculation, conclusions, proof, or anything so incredible that it is not worthy of belief. Without evidence, you cannot establish a fact nor draw a conclusion. Evidence Categories of Evidence Direct - based on person knowledge or observation, and that, if true, proves a fact without inference or presumption. Circumstantial - Evidence based on inference and not on personal knowledge or observation. Evidence Four types of Evidence: Documentary - evidence supplied by something in writing or a document. Testimonial - evidence/testimony elicited from a witness. Demonstrative - offered to clarify events. Tangible - things. ---- Evidence Documentary evidence may include: Time and attendance records, leave requests; Documents from personnel or credentialing and privileging folders; Agency regulations or policies; Reports of contact; Supervisory notes or memos; Emails, text messages, and other correspondence; Medical reports; or Position Descriptions, performance appraisals. Best when identified and authenticated by witness testimony to establish accuracy "-- Evidence Testimonial evidence is a statement from a witness about whats/he did, saw or heard: "I administered the medication at 10:05 a.m." "I saw her administer the medication before she went to lunch." "Nurse Randall told me she had forgotten to give the patient his 10:00 am medication." Evidence Demonstrative evidence serves as a representation to prove or disprove a fact, and include: Photos Drawings Charts/Diagrams Maps Demonstrations or reenactments Physical evidence that one can see and inspect and that, while of probative value and usually offered to clarify testimony, does not play a direct part in the incident in question. Demonstrative evidence must be identified and authenticated to establish its accuracy. ,_ Evidence Tangible evidence is real or physical evidence that you can touch or examine, such as: Torn or bloody clothing Container full of an illegal substance in a worksite locker Government-owned property in an employee's car Computer hard-drive Syringe or other medical device Requires a chain of custody- verification of every place the evidence has traveled after the Agency takes possession, to ensure it has not been tainted. Evidence Presumptions and Inferences: logical leaps between one set of proven facts and another Employee found with government-owned property on the passenger seat in his car can be presumed to be the same employee who removed it (or authorized its removal) from the worksite Admissions: statements, actions, or omissions that are inconsistent with a witness' interest Subject's statement that he requested and was granted leave in the past serves as an admission that he knew and understood proper leave-requesting procedures Evidence Best Evidence Evidence of the highest quality available - that which is more specific and definite as opposed to that which is merely general and indefinite. Example: The medical records themselves are better evidence than testimony regarding what is in the medical records. Caution: Use caution when considering opinions, testimony regarding character, hearsay. Evidence What makes evidence ;'/Best Evidence ?n Eye Witness Evidence: one who personally observes an event, is better evidence than hearsay. Personal Knowledge Evidence: knowledge gained through first hand observation or experience, is better evidence than a belief based on what someone else said. Corroborating Evidence: More than one witness or document that says the same thing, improves the strength of the evidence when established from multiple sources. Evidence Do's and Don'ts Do protect and secure evidence. Do verify the authenticity of evidence. Do assess witness credibility and competence when necessary. Do examine all evidence before drawing conclusions. Do look for consistencies and discrepancies. Do evaluate relative strength (probative value) of evidence. DonJt stretch evidence beyond what it actually proves. DonJt substitute opinion, assumption, or supposition for proven facts. DonJt be afraid to use evidence in small bits to build a bigger picture. 1o,1....,,,.. rw· Witness Interviews Identify potential witness: Collect names from the documents that you received or obtained. Determine, based on the situation, who or what types of employees were likely present to witness the event. Collect additional names as you listen to testimony. (Ask who else was present, who else should we talk to?) Determine witness order. Prepare for the InterviewDetermine what questions need answers (remember the elements of any charge or allegation you are investigating). Determine who can help answer those questions. Draft questions for each interview- avoid questions that are statements. Assign roles to investigators (i.e. ask questions, take notes, assess credibility). - -- - - - - - □ I ---- '-· Witness Interviews Schedule Interviews in this Order Those present. Those probably present, may have seen the event. Those who have knowledge of actual practices. Those who have knowledge of policies. Subject or target of the investigation. GROt P I\C , I .u, JI;, I Witness Interviews Recording Testimony: Court reporter- best option Tape recorder- risky Obtain written affidavits Scribe to create summaries of testimony in the simplest of cases Logistics/Opening the interview Room set up- positioned so that you can observe the witness Bring in the witness Pre-interview Swea ring-in Note-taking- take notes on nonverbal cues, important for credibility determinations Post-interview The ~• Ravens 'GROI P l\:C Location, Location, Location! The location of the interview can influence the results you get as well as the way the investigation proceeds. Thoughtful consideration should be given to the interview room. Should it be in an office, which may create a chilling effect on the desire for candid discussion? Maybe you should choose a neutral location where the witness feels more comfortable talking about the events that occurred. *Who is in the room also matters. Additional persons may serve to encourage disclosure or stifle the interview. Witness Interviews Witness Rights and Obligations VA employees are required to cooperate and testify truthfully. See 38 C.F.R. 0.735-12(b) Employees are protected against retaliation for providing testimony. Witnesses have the right to be notified in advance of the general nature of the inquiry. Employee's are not required to provide self-incriminating testimony that could be used to prove criminal charges. Testimony can be compelled by obtaining and issuing a "Kalkines Warning" (consult with Personnel Law Group) (;Roi P l\'C 41, (..tJl l~• ,...._,J Witness Interviews Witness Rights and Obligations Right to Representation: Non-CBU employees are "allowed" to have a representation but it is not an entitlement. CBU employees are entitled to have a union representative. Must be provided notice and a reasonable amount of time to obtain a representative. Union representative can play an active role in advising/counseling employee. During the investigation, witnesses do not have the right to obtain documents in advance or cross-examine other witnesses. GROI P l:\'C ..,,..a, .. •1 ►-lf Witness Interviews Non-Employee Witnesses Patients Obtain medical clearance. Must agree to appear and to take an oath. Family Members Must agree to appear and to take an oath. Contractors Must agree to appear and to take an oath. ---- □ --- \_, Building Rapport Challenging, but equally important! Have a list of topics that you want to discuss with the witness. Bring any supporting documentation upon which you want the witness to comment. The information gathered may be used later to confront the subject. Allaying the person's concerns dispel misconceptions on how an interview might be conducted find common ground and be matter-of-fact with your questions These tactics can all contribute to a more productive interview '- Building Rapport Establishing a rapport may also help your subject to view you as someone they need and can trust to help them negotiate the unfamiliar world of being a witness in a wh istleblower investigation. ------ -._, Building Rapport For both witnesses and suspects, in-person interviews are much more productive than telephone interviews since so much of communication is nonverbal. Experienced investigators are very attuned to the physical cues of interview subjects, especially when a question is uncomfortable or the subject is being deceptive. Capitalize on the ques you receive during the interview by asking more openended questions. lo,r..., I°" T... J' \ '--- Cognitive Interviews Your job, as an investigator is to maximize memory retrieval, during the interview, from a detailed level more that from a general level. Cognitive interviews focus on the details. In order to assist the witness to remember as much about the event as possible. --- (_ Cognitive Interviews In a study done by Fisher, Geiselman, and Amador, the recommendation is made to interviewer to encourage the witness to revisit their state of mind at the time of the event. The witness should be encouraged to think about external factors (e.g., weather or the smell of smoke, sound of whispers), emotional factors (e.g., feelings of fear or angst), or cognitive factors (e.g., relevant thoughts that were present), which may cause a more accurate memory of the events in question. GROI P l\:C Cognitive Interviews The usefulness of cognitive interviews depends upon the presence of eyewitnesses at the scene of a crime. If there are no eyewitnesses or bystanders present during a crime, the use in performing a cognitive interview becomes limited to nonexistent. Cognitive Interviews Although cognitive interviews aim to increase the amount of information reported from an eyewitness, implementing this method of memory-enhancement does not necessarily guarantee accurate information. During the interview process it is not uncommon for an interviewee to succumb to a social desirability bias. This means that the witness alters their story or response in a way that they feel makes their answer more acceptable in the eyes of the interviewer as well as society.lifil GROl P l\:C ·.," , .-11 1 .., rio••,ar• -- Witness Interviews Assessing Credibility of a Witness Capacity and opportunity to observe and recall the event accurately. Inherent probability. Consistency with other statements and evidence. Bias. Character traits related to truthfulness. Demeanor. ,,j 1~. ""i -- - -1 - -- ---i._! 11_ - . .- ~ D - I 1 .. ~ • ,,: I I -I / --=I, II - (l □ G ROl P 1, c - ~,,. , ...... 1~• ;;.i r'"...ir' Witness Interview Hillen v. Department of the Army - Witness Interview The Seven Hillen Factors (1) the witness' opportunity and capacity to observe the event or act in question; (2) the witness' character; (3) any prior inconsistent statement by the witness; (4) a witness' bias, or lack of bias; (5) the contradiction of the witness' version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness' version of events; and (7) the witness' demeanor. Rights Warnings To Give or Not to Give ... That is the Question! ----- - --- --- - --- D □ □ •, 1.-.. Ji., fj._.ar • --- - J Witness Interviews Types of Questions: Open ended: Please tell us what you saw. Probing questions: We heard from another witness that ... do you see it that way? What is the common practice? Yes/No Questions: Did you see him hit the patient? Fishing: Is there anything else you can tell us? Is there anyone else who has info? Sequence of Questions: Tell the story 3 times Open ended question- let the witness tell their story Probing- take the witness through the story again to clarify events, timeline, inconsistencies Test the story against prior information, looking for confirming and disconfirming information ,1 ■ ~ II -: ~~ =' - ,II\ • 1·1 - r ·-· . I •. t F i=::J I x;;-~ •: ~c D 11 l!I (I □ I] _1 I) •. I ➔ ~I lli·