Author M. (Martin) van Manen
How do we organize investigations if incidents have been reported or complaints have arisen about transgressive or undesirable behaviour? This article highlights some aspects.
In Dutch newspaper Het Financieele Dagblad, Professor of Accountancy Marcel Pheijffer recently put it aptly: in The Netherlands there is no such thing as an Internal Investigations Act. He was referring to the lack of well-defined frameworks for conducting internal investigations. The phenomenon of self-examination or internal research, he argues, is increasingly popping up and requires additional safeguards. Marcel Pheijffer then addresses recent cases like insurance fraud and disciplinary cases in which the court ultimately gets a role. But what if there are no suspicions of fraud or corruption? How do we organize investigations if incidents have been reported within an organization or complaints have arisen about undesirable or transgressive behaviour? Recent incidents widely reported in the media show that a lot can go wrong in conducting such investigations.
Piling up errors
Following allegations of transgressive behaviour by former Chairman of Dutch House of Representatives (Tweede Kamer ) Khadija Arib, fact-finding is now underway. Earlier that year, in June 2022, a broad independent investigation was launched into social safety among members of Parliament, political party employees and civil servants in Dutch Parliament. The Arib case is just one example of recent integrity incidents that have caused a stir in the media. Critics are showering each other with criticism of the follow-up given to these incidents. For example, follow-up steps would be one-sided or partisan. Also, a frequently heard comment is that adversarial hearing has not been part of the procedure. Practice shows that risks are at issue when conducting internal investigations. Mistakes are easily made. What about a researcher who cannot work independently? Or the research initiative leaks out, resulting in trial by media. Another breeding ground for errors is the poor scope of the investigation at the start.
These are just a few examples of risks associated with conducting research.
Best practices for conducting internal investigations
In 2019, the Institute for Financial Crime (IFFC), a foundation of which I am a board member since 2021, published key points regarding internal investigations (‘Aandachtspunten Intern Onderzoek’) One of these points is the legal context in which the investigation takes place and the circumstances under which the investigation is carried out. Regardless of the type of research, the phasing and nature of the work to be carried out will not differ much.
An organization that has its own functioning examined for damage control reasons and to prevent reputational damage, pays attention to the following matters: choose an investigator who has knowledge and experience, is not an organization member, not previously involved in the issue to be investigated and has no interest in the results of the investigation. The authors state that "one of the most important requirements of investigation outcomes is that they are credible because of the credibility of the investigator himself."
Context
The IFFC-publication is a valuable guide for conducting internal investigations. Nevertheless, the Arib case teaches us something else: consider the context. Set the complaint or incident carefully against the background of the circumstances in which it occurred. Let’s go back to the case. The legal basis of the investigation into Arib's conduct was Article 3 of the Dutch occupational safety and health Act (Arbowet), freely translated: "The employer shall ensure the safety and health of workers in all aspects of work. [..] The employer shall, within the general working conditions policy, pursue a policy aimed at preventing and, if that is not possible, limiting psychosocial work load." In the letter in which Arib announces her departure, we read that the former Chairman of the House of Representatives was instructed to reorganize the civil service and to put things in order when she took office. We do not know whether she received an instruction on which leadership style was 'prescribed' or 'desired'. Furthermore, for civil servants a Code of Conduct for Government Integrity is in place (Gedragscode Integriteit Rijk, 2019 ) and a Code of Conduct for Dutch Parliament was implemented in 2021 specifically for parliamentarians (Gedragscode Tweede Kamer ). Did Arib, as a parliamentarian, have to comply with both codes? In an earlier article we referred to the importance of having a so called 'red line'. A tentative conclusion regarding the Arib-case is that the red line appears to be winding. In the absence of a bright red line in organizations, it becomes difficult to judge...
Risk assessment
Finally, a last consideration on conducting internal investigations. During evaluations of incidents and investigations, I often hear "If I had known in advance what the collateral damage of our decision to start an investigation would have been, I would have handled it differently". Internal investigations may have high dynamics, with reputational damage as potential risk. This however does not necessarily mean that everything is unpredictable. On the contrary. By assessing risks in advance and defining mitigating measures, a lot of suffering is prevented.
A good start is half the battle...
For the print version of this article, click here.
Comments