HPG article

Truth or Consequences? Choose Investigators Wisely

Tasha Dyson, CFE Compliance, Corporate Compliance


HPG articleA recent article from HPG provided excellent information about how companies and organizations can take a proactive stand against harassment (read the original article here). As part of the precautions to take, the article recommended an investigation of the complaint. We couldn’t agree more.

Few organizations realize that private investigators offer a vast and virtually untapped pool of investigative talent. Organizations can use this talent to conduct the organization’s investigations or enhance and augment the resources of internal investigators.

Contrary to the stereotypes perpetuated by Hollywood movies, most modern private investigators are highly skilled, well-disciplined professionals. Many enter the field after distinguished careers in the law enforcement, military, and intelligence communities. Many have training and experience in conducting complex investigations, conducting interviews, and collecting, preserving and analyzing various forms of evidence. A number also specialize in practice areas that require frequent interaction and cooperation with law enforcement and participation in parallel administrative/criminal investigations.

Despite the advantages, there is wide variety in the skills and capabilities of private investigators. As with any professional service, the provider can have a material impact on the quality of the end product. Therefore, organizations should view the acquisition of investigative services no differently than the acquisition of any other professional service. If your organization is contemplating the need for outside investigative assistance, here are six questions you should consider.

Will a timely investigation require significant resources?

Most investigations do not require the simultaneous deployment of multiple investigators. However, there may be occasions when completing a timely investigation will demand just such an approach.

Professional investigative firms can often supply the personnel and resources necessary to complete such tasks within a reasonable time. This includes the ability to use commercial and public record sources to quickly identify and locate witnesses. Also important is the capacity to engage multiple investigators to complete interviews or other labor intensive, investigative activities in a timely manner. Many of these organizations employ former law enforcement investigators who have significant training and experience in conducting major case investigations. Higher quality firms maintain professional networks that enable them to quickly engage qualified investigators in other locales when necessary.

Will an investigation require specialized or technical expertise?

With the continuous advances in computing and communication technologies, there seems to be a digital or technical aspect to virtually every investigation – even those that were once considered exclusively interpersonal. The recovery and preservation of this evidence is often outcome-determinative. Too often, however, this evidence is either not considered or collected in a manner that impairs its evidentiary value.

Many professional investigative firms employ former law enforcement investigators who have been specially trained to identify, collect and exploit various forms of digital and forensic evidence. Higher quality firms also maintain relationships with recognized forensics experts and reputable testing laboratories, and will be able to offer or arrange many of the same forensic tests available in modern crime laboratories, including:

  • Digital forensics (computer, cell phone, etc.)
  • Forensic document examination (handwriting identification, etc.)
  • DNA analysis
  • Latent print analysis (fingerprints, etc.)
  • Serology (identification of blood and other bodily fluids)

Will the investigation possibly produce evidence of organizational non-compliance?

It is not uncommon for investigative activity to uncover evidence of violations not contemplated at the outset of the investigation. For example, an investigation of a sexual harassment could show that a responsible employee either knew, or reasonably should have known, about the harassment and failed to properly report it. This puts the internal investigator in the unenviable position of having to investigate both the allegations of harassment and the appropriateness of the organization’s response. It also presents a potential conflict of interest, since the organization has a vested interest in the outcome of the second investigation.

Many professional investigative firms specialize in administrative and compliance investigations. These firms investigate confidential and sensitive matters, and operate independently of ongoing investigations to avoid real or perceived conflicts of interest. To ensure full and fair investigation, organizations facing such issues could divide the investigation and engage outside investigators, either independently or under the direction of the internal counsel, to lead the compliance portion of the investigation.

Will an investigation receive heightened media scrutiny?

How many recent corporate misconduct news stories can you name? There are some weeks where it seems like there is a new scandal every day. In today’s environment, an incident at your organization could easily become tomorrow’s headline.

Organizations handling such complaints should be aware that certain investigative firms specialize in harassment and other misconduct investigations. In addition to the resources commonly available to outside investigative firms, these firms offer many advantages, including:

  • Ability to field a multidisciplinary team of investigators.
  • Ability to collect and analyze digital and other physical evidence.
  • Experience conducting high profile investigations.
  • Experience conducting harassment investigations.
  • Avoidance of actual or perceived conflicts of interest.
  • Experience working with law enforcement.
  • Experience conducting parallel, administrative investigations.
  • Minimize risk that internal investigators will be drawn into subsequent civil suits.

Quality firms have insurance to protect against the liabilities that most often arise from investigative activities. These firms may lead investigations, either independently or under the direction of the organization, or consult with and assist internal investigators, to ensure the investigation is objective, thorough and complete.

Are our outside investigators properly licensed?

Most states require private investigators to meet statutorily prescribed training and experience requirements and possess a license to perform investigative work. Although most states require licensing prior to the performance of investigative work, a few require it prior to soliciting business.

Despite some state-to-state variance, there is remarkable similarity in the statutes defining the activities for which a license is required. In North Carolina, the licensing requirement extends to:

Any person who engages in the profession of or accepts employment to furnish, agrees to make, or makes inquiries or investigations concerning any of the following on a contractual basis:

  1. Crimes or wrongs done or threatened against the United States or any state or territory of the United States.
  2. The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person.
  3. The location, disposition, or recovery of lost or stolen property.
  4. The cause or responsibility for fires, libels, losses, accidents, damages, or injuries to persons or to properties.
  5. Securing evidence for any court, board, officer, or investigative committee.
  6. Protection of individuals from serious bodily harm or death.[1]

North Carolina’s statute, like many others, uses the disjunctive “or” when describing the activities for which a license is required. Consequently, it is immaterial how a person describes himself or his services – if he or she is actually performing investigations, he or she must be licensed.

Organizations considering the use of outside investigators should familiarize themselves with the private investigator licensing requirements in their state before requesting proposals or soliciting bids for such work. Before engaging an investigator, institutions should ensure that both the investigator and his or her company[2] are licensed to perform the work contemplated by the contract. Many states, including North Carolina, make violation of these statutes a criminal offense, and allow charges to be brought against the institution and its employees as well as the investigator.[3]

Where can we find qualified investigators?

Organizations can identify private investigators through a number of sources. Unfortunately, there is no single source that provides all information needed to identify a qualified investigator. Therefore, organizations should query multiple sources and actively vet candidates, using the information provided in this document.

Attorneys. Because attorneys are frequent consumers of investigative services, they can be excellent sources for identifying qualified investigators. However, not all attorneys use investigators; primarily because their area of practice does not demand it. Therefore, an attorney’s value as a referral source depends to some degree on his or her practice areas. In our experience, litigators are likely to have the most experience with private investigators. Some attorneys who routinely use investigators often use different investigators, depending on the nature of the work. For example, the same attorney may use one investigator for personal injury investigations, another for surveillance work and yet another for business or financial investigations. Therefore, to ensure the highest quality referral, organizations should understand and articulate the needed skills and services.

Law Enforcement. As previously noted, many private investigators enter the field after careers in federal, state and local law enforcement. A number of investigators also specialize in practice areas that require frequent interaction with law enforcement. Because of these relationships, the law enforcement community can also be an excellent source for identifying qualified investigators. However, much like attorneys, not every law enforcement officer will have the same opportunity to interact with private investigators in the course of his or her duties. Therefore, a law enforcement official’s value as a referral source depends largely on duty assignments. In our experience, criminal investigators (or detectives) and senior officials, whose peers have begun to retire and enter the field, are likely to have the most experience with private investigators.

Licensing Agencies. As a general rule, the agency charged with licensing private investigators (for states that require licensing) maintains some form of publicly accessible database of licensees. In most cases, organizations can access these databases online, and they usually provide the contact information and license status of investigators. However, these resources will not provide information about unlicensed investigators, investigators licensed in other states, or the experience, skills or abilities of investigators.

Trade or Industry Associations. It is not uncommon for private investigators to belong to one or more trade or industry associations. These associations may range from those that are purely local or regional, such as the North Carolina Association of Private Investigators (NCAPI), to those that are national in scope, such as the American Society for Industrial Security (ASIS). These associations often maintain some form of searchable member directory. These directories typically include the name, address and telephone number of the members. However, some also include information about a member’s experience and practice areas. Users of such directories should be mindful that membership in these associations is voluntary and often requires payment of a fee. Thus, these member directories may not include all investigators or firms serving a particular area. In addition, the information included in such directories is often provided directly by the member and not verified.

 

 

 

[1] N.C.G.S. § 74C-3(a)(8)

[2] North Carolina, like many other states, requires that both the investigator and the business organization under which he does business, if any, be licensed. See e.g., N.C.G.S. 74C-2(a).

[3] See, N.C.G.S. § 74C-17(b) (providing that “[a]ny person, firm, association, or corporation or their agents and employees violating any of the provisions of this Chapter or knowingly violating any rule promulgated to implement this Chapter shall be guilty of a Class 1 misdemeanor”). See also, State v. Lawson, 105 N.C. App. 329 (1992)(aiding and abetting misdemeanor is punished the same as the underlying offense).