Corruption Matters - November 2014 | Issue 44
Need an external investigator? Be careful what you ask for!
Public sector agencies may occasionally be called on to conduct an investigation. And occasionally this may require the skills of someone outside the organisation. Deputy Ombudsman Chris Wheeler provides an overview of what you need to consider before recruiting an external investigator.
The heads of public sector agencies have a broad range of responsibilities. This can sometimes include conducting an investigation, which can impact on individuals, business groups or the entire agency. Conducting an effective investigation may not be as easy as it seems and sometimes it may be necessary to find an external investigator.
Why an external investigator?
Administrative investigations will generally concern either alleged misconduct or negligence on the part of an individual or relate to policies, practices and procedures. Even when internal resources are available, it may not always be appropriate to use these for an investigation. An agency may decide it needs to use an external investigator because:
- it does not have the necessary internal resources
- there is a need to ensure that the investigation is conducted by a person who has no connection to the organisation
- it is a matter that involves senior officers
- technical issues make it necessary to engage a person with the requisite skills and knowledge unavailable within the agency.
Common problems that undermine an investigation
Our public interest disclosure (PID) and general complaint work has revealed a number of shortfalls in investigations conducted by external investigators, including:
- failing to adhere to the terms of reference for the investigation
- misunderstanding relevant legislative requirements
- failing to provide procedural fairness to persons that are the subject of adverse findings
- making assumptions, findings and recommendations in reports that are unsupported by evidence
- failing to obtain all relevant evidence
- inadequate recordkeeping
- excessive, unexplained delays
- illogical and confusing report formats.
The list below highlights three things that should be done to ensure an investigation is conducted properly.
1. Write terms of reference
Terms of reference provide formal guidance to investigators on precisely what they need to do to satisfy the contract. These terms should also state any restrictions on the investigation, such as security and access to information. When drafting terms of reference, it is vital that the directions given to the investigator are clear and concise and should (among other things):
- state clearly what is being investigated and why
- detail only relevant matters
- identify who the investigator is to report to throughout the investigation
- provide the identities of all known witnesses and persons of interest
- stipulate timeframes for completion and ongoing briefings/updates
- detail any additional reporting and confidentiality requirements
- include guidance on dealing with additional matters that arise
- stipulate how progress, results and critical decisions are to be recorded.
Drafting these terms can be difficult and, especially for complex matters, an agency should consider seeking legal advice before proceeding.
2. Select the right investigator
While costs may always be a factor, it is important to be careful to ensure the person chosen has the right blend of qualifications and experience for the task.
Different business processes and cultures can make it difficult to identify an investigator with experience in a particular area. While it may not always be possible, examining previous investigation work can help to identify someone appropriate. Details of referees should be obtained from potential investigators where similar investigations were conducted and organisations may call to ask about that work.
3. Manage the investigation/contract
When you engage an external investigator, you enter into a contractual arrangement where you have the responsibility for ensuring that your agency gets value for its expenditure of public money. This means making sure that the terms of reference are adhered to and a regular process for quality assurance is implemented.
In terms of quality assurance, the appointment of an agency officer to manage the contractual arrangements with the investigator is essential. Where possible, this should not be the same person who will be the final decision-maker. This will allow the decision-maker to focus purely on the investigation findings and recommendations and available evidence when deciding what action arises out of the investigation.
More information is available from the NSW Ombudsman.