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July 17, 2012
The Freeh Penn State report does what all good internal investigation reports should do and, that is, it makes recommendations. But this raises an issue I have been grappling with for years when I get retained for such an inquiry.
Should the investigator implement the recommendations? My answer is a definite “no.” This may surprise some people because it has in the past, and probably will continue in the future, to work against my economic interests, as I have turned down engagements which required both a search for the wrongdoer combined with a revision of compliance and related processes.
But here is my reasoning. To put it in its simplest terms, internal investigations are “destructive” processes in that they are designed to identify fault and often to identify individuals responsible. Implementing recommendations is a “constructive” process requiring cooperation, trust and teamwork to achieve best practices and best results.
It ignores human nature to believe that one day a person or entity conducting an accusatory inquiry, or one that is simply perceived as accusatory, can turn around and be a force for constructive change the next day. Employees who objectively have nothing to be afraid of will still want to limit their contact and association with the investigators. For example, they will not be contributors to the process for fear that any criticism of the investigators will be construed as a failure to cooperate. The whole environment will be just the opposite of what it should be.
The investigators certainly do have a lot to offer to the process, but their knowledge should be communicated to the Implementing Entity so that the Implementing Entity may ensure that the recommendations are directed at the problems or potential problems and that they get carried out in a spirit of cooperation and in an atmosphere of accomplishment. Moreover, good practices dictate that at some point after the recommendations have been implemented and have been functioning, they should be reviewed. To bring in the same investigators again to do that will undoubtedly raise concerns and result in unfounded implications. But that will not happen if the Implementing Entity or someone else conducts the very same type of review.
Bart M. Schwartz is the chairman of Guidepost Solutions LLC, a global leader in investigations, due diligence, security and technology consulting, immigration and cross-border consulting, and monitoring and compliance solutions.