Public Servants Disclosure Protection Act

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