Internal reporting & the role of the investigator: Proactive management to minimise risk Chris Wheeler, NSW Deputy Ombudsman National Investigations Symposium, 8‐9 Nov 2012 Thank you for the opportunity to speak at this morning’s session on effective whistleblowing management. Today I will focus on the role that the investigator plays when an internal report of wrongdoing is made, and outline a number of strategies that investigators can employ to proactively manage the many players involved and minimise the risk of a negative outcome. These strategies draw on the experience of the Ombudsman’s office as an investigating authority under the NSW whistleblower legislation since 1995. Relatively recent amendments to what is now called Public Interest Disclosures Act 1994 (PID Act) gave us an oversight role in relation to the legislation. We established a specialised Public Interest Disclosures (PID) Unit to take the lead in this role. The first annual report on the operation of the PID Act will be available on our website early next month. Despite being the subject of numerous Parliamentary Joint Committee inquiries, one of the long-standing challenges with evaluating the PID Act in NSW has been the lack of information about its implementation. Our annual report outlines what we now know based on the information provided to our office by public and investigating authorities about the PIDs they have received. It also provides relevant results from the Public Service Commission’s survey of state government employees and information about the PID Unit’s work during their first 12 months of operation. For example, the PID Unit trained over 6,000 public sector employees and managers, released 32 publications (many of them twice), and distributed 17 PID e-News bulletins. Yet none of this material – as well as the bulk of my presentation today – contains the word ‘ whistleblowing ’. Our office’s reframed guidelines now comprise a series of 21 practice notes and talk instead about ‘ internal reporting ’. This format also allows is to update our guidance quickly and easily, both to reflect any developments in our thinking as well as any legislative changes. The neutrality of this term is in strong contrast to the connotations often provoked when one talks about whistleblowing – be they negative (e.g. traitor/troublemaker) or positive (e.g. hero/martyr). It also reflects our office’s philosophy: that speaking up against public interest wrongdoing should simply be an everyday, ordinary part of the duty of public officials. Investigators have a crucial role to play in building such a culture. When studies have asked staff why they didn’t report wrongdoing, most answered that this was because they didn’t think appropriate action would be taken in response. Demonstrating that appropriate and robust action is taken to investigate allegations of wrongdoing can instil confidence in staff and reassure them that reports of wrongdoing will be adequately dealt with. Internal reporters are also more likely to be satisfied with an investigation outcome that is not in line with their expectations, if they perceive the process to have been fair and impartial. Internal reporting & the role of the investigator 1 National Investigations Symposium, 8 ‐ 9 November 2012
Things can – and often do – go wrong A key purpose of PID type legislation can be seen as establishing fair and reasonable ground rules for each of the parties to the disclosure that aim to minimise the chance of things going wrong. For example: • the reporter must provide a certain level of information about certain categories of conduct in a certain way to certain people • no one, including any subjects of the disclosure, can take detrimental action substantially in reprisal for the making of a PID (referred to as ‘reprisal’) • those who receive, assess or deal with disclosures must do so in accordance with their agency’s procedures, and • the Principal Officer must ensure their agency takes certain action. Based on these ground rules, agencies are encouraged to promote – and to enforce – their own rules in their internal reporting policy and supporting procedures. In this regard, one of our PID guidelines outlines the responsibilities of all the parties who may be involved: • staff generally • staff reporting wrongdoing • staff who are the subject of a report • support people • managers and supervisors • staff who can receive a report (e.g. PID Officers/PID Coordinator/ Principal Officer) • staff assessing a report (e.g. PID Coordinator) • the PID Coordinator specifically • the PID Manager (for principal departments), and • the Principal Officer. 1 Another example is contained in our Managing Unreasonable Complainant Conduct model policy. 2 Even with such statutory and policy frameworks in place, investigators need to realise that people don’t always do the right thing or play by the rules. Internal reports can lead to a number of poor outcomes: • Workplace conflict: Internal reports are often accompanied by or result in conflict or an otherwise difficult workplace situation. The various parties to the report each have their own agenda, and often do not act or react rationally. The facts and circumstances surrounding both the original wrongdoing and the reporting itself can raise particularly strong emotional reactions. In a highly charged environment, this is an explosive mix. • Long-term adverse consequences: Despite the best efforts of agencies, few ‘staff on staff’ complaints are resolved to the satisfaction of all parties. They can have a devastating effect on co-workers and work teams. Internal reporting & the role of the investigator 2 National Investigations Symposium, 8 ‐ 9 November 2012
• Injustice/unfairness: Staff with responsibility for receiving, assessing or dealing with reports may not want to take action in relation to internal reports – instead, brushing them under the carpet or attempting to forget they were made. This has been attributed to both their loyalty towards their organisation and the fear of harm to their reputation. • Endlessly pursuing substantiation/vindication: If a report is not substantiated, it was well known that it was made, and it concerned people with more power or support within the organisation, the internal reporter is likely to become ‘fair game’ for a range of negative repercussions. It is this realisation that probably drives the high priority many reporters place on substantiation itself as a means of protection. In many cases, vindication is the obsessive driving force behind the reporter’s continued involvement with the agency. • Unreasonable ‘reporter’ conduct: Disaffected internal reporters often demonstrate unreasonable behaviours. However, because of the nature of their rights as employees, accepted unreasonable complainant conduct strategies may be of limited utility. • Litigation: This can be, and often is, initiated by all parties. However, a recent study of litigation in the US suggested that whistleblowers have a tendency to appeal and have lengthy court battles. 3 • Reduced efficiency and productivity: If an internal report is not handled properly within an agency, it can become a nightmare that never goes away. • Negative public image/reputation: A failure by management to take action on an internal report may result in more distrust and less confidence in management. In turn, this could cause damage to the reputation of the agency and threaten its legitimacy. Minimising risk through proactive management Reactive management is the ‘head in the sand’, ‘hope for the best’, ‘don’t admit we have a disclosure’ approach – staff only react after reprisal has occurred. There have been cases in NSW where the courts found against agencies that adopted a reactive or more ‘hands-off’ approach to the protection and/or welfare of their staff. 4 For example, in the Wheadon case, the NSW District Court found that the State of NSW was liable for the Police Service’s breaches of its duty of care to the officer in many ways, including by failing to: • properly investigate the internal reporter’s allegations • properly investigate allegations made about the internal reporter, and • provide a proactive system of protection, and proactive support and guidance. As investigators, there are a number of proactive management strategies, processes and activities that you can draw on beyond those that I will talk about today. They either aim to: • identify, pre-empt and prevent potentially damaging incidents, or • respond and mitigate their impact when prevention fails. Investigators can minimise the risk of a poor outcome by taking control of the situation, and adopting a systematic and considered approach to the management of the investigation. An effective problem-solving process is fundamental – where you actively look out for problems Internal reporting & the role of the investigator 3 National Investigations Symposium, 8 ‐ 9 November 2012
Recommend
More recommend
