The Whistleblower Protection Act: Auditors - Auditing Standards: Ethics Because auditing is essential to government accountability to the public, the public expects audit organizations and auditors who perform their work in accordance with Government Auditing Standards to follow ethical principles. GAGAS 3.02 Auditing Standards: Ethics Performing audit work in accordance with ethical principles is a matter of personal and organizational responsibility. Ethical principles apply in preserving auditor independence. Integrity and objectivity are maintained when auditors perform their work and make decisions that are consistent with the broader interest of those relying on the audit report, including the public. Auditing Standards: Ethics The ethical principles that guide the work of auditors who conduct engagements in accordance with Government Auditing Standards are a. the public interest; b. integrity; c. objectivity; d. proper use of government information, resources, and positions; and e. professional behavior. { \_ -/ Auditing Standards: Ethics Public Interest The public interest is defined as the collective wellbeing of the community of people and entities that the auditors serve. Observing integrity, objectivity, and independence in discharging their professional responsibilities helps auditors serve the public interest and honor the public trust. GAGAS 3.07 Auditing Standards: Ethics Integrity Public confidence in government is maintained and strengthened by auditors performing their professional responsibilities with integrity. Integrity includes auditors performing their work with an attitude that is objective, fact-based, nonpartisan, and nonideological with regard to audited entities and users of the audit reports. l -- Auditing Standards: Ethics Integrity Making decisions consistent with the public interest of the program or activity under audit is an important part of the principle of integrity. In discharging their professional responsibilities, auditors may encounter conflicting pressures from management of the audited entity, various levels of government, and other likely users. In resolving those conflicts and pressures, acting with integrity means that auditors place priority on their responsibilities to the public interest. - - Auditing Standards: Ethics Objectivity Auditors' objectivity in discharging their professional responsibilities is the basis for the credibility of auditing in the government sector. Objectivity includes independence of mind and appearance when conducting engagements, maintaining an attitude of impartiality, having intellectual honesty, and being free of conflicts of interest. Maintaining objectivity includes a continuing assessment of relationships with audited entities and other stakeholders in the context of the auditors' responsibility to the public. GAGAS 3.11 - Auditing Standards: Ethics Proper Use of Government Information, Resources and Positions Transparency and confidentiality are Key! Government information, resources, and positions are to be used for official purposes and not inappropriately for the auditors' personal gain or in a manner contrary to law or detrimental to the legitimate interests of the audited entity or the audit organization. This concept includes the proper handling of sensitive or classified information or resources. Misusing the auditor position for financial gain or other benefits violates an auditor's fundamental responsibilities. GAGAS 3.12 Auditing Standards: Ethics Professional Behavior High expectations for the auditing profession include complying with all relevant legal, regulatory, and professional obligations and avoiding any conduct that could bring discredit to auditors' work, including actions that would cause an objective third party with knowledge of the relevant information to conclude that the auditors' work was professionally deficient. Professional behavior includes auditors putting forth an honest effort in performing their duties in accordance with the relevant technical and professional standards. GAGAS 3.16 L ___,, Auditing Standards: Professional Judgment Auditors must use professional judgment in planning and conducting the engagement and in reporting the results. Professional judgment includes exercising reasonable care and professional skepticism. Reasonable care includes acting diligently in accordance with applicable professional standards and ethical principles. Attributes of professional skepticism include a questioning mind, awareness of conditions that may indicate possible misstatement owing to error or fraud, and a critical assessment of evidence. Professional skepticism includes being alert to, for example, evidence that contradicts other evidence obtained or information that brings into question the reliability of documents or responses to inquiries to be used as evidence. Further, it includes a mindset in which auditors assume that management is neither dishonest nor of unquestioned honesty. Auditing Standards: Professional Judgment Auditors may accept records and documents as genuine unless they have reason to believe the contrary. Auditors may consider documenting procedures undertaken to support their application of professional skepticism in highly judgmental or subjective areas under audit. Using the auditor's professional knowledge, skills, and abilities, in good faith and with integrity, to diligently gather information and objectively evaluate the sufficiency and appropriateness of evidence is a critical component of the audit. ***Documentation of independence considerations provides evidence of the auditor's judgments in forming conclusions regarding compliance with independence requirements. ~' Auditing Standards: Competence Always ensure that you have the requisite knowledge, skills, and abilities needed when conducting an audit in accordance with Government Auditing Standards and the understanding necessary to proficiently apply a. standards, statutory requirements, regulations, criteria, and guidance applicable to auditing or the objectives for the engagement(s) being conducted; and b. techniques, tools, and guidance related to professional expertise applicable to the work being performed. Auditor proficiency in these areas helps ensure that the audits are conducted properly. L - Auditing Standards: Previous Audits When planning the audit, auditors should ask management of the audited entity to identify previous audits, attestation engagements, and other studies that directly relate to the objectives of the audit, including whether related recommendations have been implemented. Auditors should evaluate whether the audited entity has taken appropriate corrective action to address findings and recommendations from previous engagements that could have a significant effect on the subject matter. Auditors should use this information in assessing risk and determining the nature, timing, and extent of current audit work and determining the extent to which testing the implementation of the corrective actions is applicable to the current audit objectives. -- Auditing Standards: Findings When auditors identify findings, they should plan and perform procedures to develop the criteria, condition, cause, and effect of the findings to the extent that these elements are relevant and necessary to achieve the audit objectives. Auditors should consider internal control deficiencies in their evaluation of identified findings when developing the cause element of the identified findings. GAGAS 6.18 \........ - Auditing Standards: Findings Findings may involve deficiencies in internal control; noncompliance with provisions of laws, regulations, contracts, and grant agreements; or instances of fraud. Given the concept of accountability for use of public resources and government authority, evaluating internal control in a government environment may also include considering internal control deficiencies that result in waste or abuse. Because the determination of waste and abuse is subjective, auditors are not required to perform specific procedures to detect waste or abuse in financial audits. However, auditors may consider whether and how to communicate such matters if they become aware of them. Auditors may also discover that waste or abuse are indicative of fraud or noncompliance with provisions of laws, regulations, contracts, and grant agreements. Auditing Standards: Findings Waste is the act of using or expending resources carelessly, extravagantly, or to no purpose. Importantly, waste can include activities that do not include abuse and does not necessarily involve a violation of law. Rather, waste relates primarily to mismanagement, inappropriate actions, and inadequate oversight. The following are examples of waste, depending on the facts and circumstances: a. Making travel choices that are contrary to existing travel policies or are unnecessarily extravagant or expensive. b. Making procurement or vendor selections that are contrary to existing policies or are unnecessarily extravagant or expensive. GAGAS 6.21-22 (_ Auditing Standards: Findings ABUSE Abuse is behavior that is deficient or improper when compared with behavior that a prudent person would consider reasonable and necessary business practice given the facts and circumstances, but excludes fraud and noncompliance with provisions of laws, regulations, contracts, and grant agreements. Abuse also includes misuse of authority or position for personal financial interests or those of an immediate or close family member or business associate. (___ Auditing Standards: Findings The following are examples of abuse, depending on the facts and circumstances: a. Creating unneeded overtime. b. Requesting staff to perform personal errands or work tasks for a supervisor or manager. c. Misusing the official's position for personal gain (including actions that could be perceived by an objective third party with knowledge of the relevant information as improperly benefiting an official's personal financial interests or those of an immediate or close family member; a general partner; an organization for which the official serves as an officer, director, trustee, or employee; or an organization with which the official is negotiating concerning future employment}. - Auditing Standards: Findings (Criteria) Criteria: For inclusion in findings, criteria may include the laws, regulations, contracts, grant agreements, standards, measures, expected performance, defined business practices, and benchmarks against which performance is compared or evaluated. Criteria identify the required or desired state or expectation with respect to the program or operation. Auditing Standards: Findings {Condition) Condition: Condition is a situation that exists. The condition is determined and documented during the audit. Auditing Standards: Findings (Cause) Cause: The cause is the factor or factors responsible for the difference between the condition and the criteria, and may also serve as a basis for recommendations for corrective actions. Common factors include poorly designed policies, procedures, or criteria; inconsistent, incomplete, or incorrect implementation; or factors beyond the control of program management. Auditors may assess whether the evidence provides a reasonable and convincing argument for why the stated cause is the key factor contributing to the difference between the condition and the criteria. 6 -- Auditing Standards: Findings (Effect) Effect or potential effect: The effect or potential effect is the outcome or consequence resulting from the difference between the condition and the criteria. When the audit objectives include identifying the actual or potential consequences of a condition that varies (either positively or negatively) from the criteria identified in the audit, effect is a measure of those consequences .. Effect or potential effect may be used to demonstrate the need for corrective action in response to identified problems or relevant risks. - ·- Auditing Standards: Presenting Findings When presenting findings in the auditing report, auditors should develop the elements of the findings to the extent necessary to assist management or oversight officials of the audited entity in understanding the need for corrective action. Auditors should place their findings in perspective by describing the nature and extent of the issues being reported and the extent of the work performed that resulted in the finding. To give the reader a basis for judging the prevalence and consequences of these findings, auditors should, as appropriate, relate the instances identified to the population or the number of cases examined and quantify the results in terms of dollar value or other measures. If the results cannot be projected, auditors should limit their conclusions appropriately. GAGAS 6.51 Auditing Standards: Confidential or Sensitive Information Reporting Confidential or Sensitive Information 6.63 If certain information is prohibited from public disclosure or is excluded from a report because of its confidential or sensitive nature, auditors should disclose in the report that certain information has been omitted and the circumstances that make the om1ss1on necessary. 6.64 When circumstances call for omission of certain information from the report, auditors should evaluate whether this omission could distort the audit results or conceal improper or illega l practices and revise the report language as necessary to avoid report users drawing inappropriate conclusions from the information presented. 6.65 When the audit organization is subject to public records laws, auditors should determine whether public records laws could affect the availability of classified or limited use reports and determine whether other means of communicating with management and those charged with governance would be more appropriate. Auditors use professional judgment to determ ine the appropriate means to communicate the omitted iniformation to management and those charged with governance considering, among other things, whether public records laws could affect the availability of classified or limited use reports. \_ ~ Auditing Standards: Confidential or Sensitive Information If the report refers to the omitted information, the reference may be general and not specific. If the omitted information is not necessary to meet the audit objectives, the report need not refer to its omission. Certain information may be classified or may otherwise be prohibited from general disclosure by federal, state, or local laws or regulations. In such circumstances, auditors may issue a separate, classified, or limited use report containing such information and distribute the report only to persons authorized by law or regulation to receive it. Auditing Standards: Confidential or Sensitive Information Additional circumstances associated with public safety, privacy, or security concerns could also justify the exclusion of certain information from a publicly available or widely distributed report. For example, detailed information related to computer security for a particular program may be excluded from publicly available reports because of the potential damage that misuse of this information could cause. In such circumstances, auditors may issue a limited use report containing such information and distribute the report only to those parties responsible for acting on the auditors' recommendations. (_ "--- _/ Auditing Standards: Overall Assessment Overall Assessment of Evidence Auditors should perform and document an overall assessment of the collective evidence used to support findings and conclusions, including the results of any specific assessments performed to conclude on the validity and reliability of specific evidence. When assessing the overall sufficiency and appropriateness of evidence, auditors should evaluate the expected significance of evidence to the audit objectives, findings, and conclusions; available corroborating evidence; and the level of audit risk. If auditors conclude that evidence is not sufficient or appropriate, they should not use such evidence as support for findings and conclusions. When the auditors identify limitations or uncertainties in evidence that is significant to the audit findings and conclusions, they should perform additional procedures, as appropriate. GAGAS 8.108 Auditing Standards: Reporting Compliance When auditors comply with all applicable Government Auditing Standard (GAS) requirements, they should use the following language, which represents an unmodified GAS compliance statement, in the audit report to indicate that they conducted the audit in accordance with GAS: We conducted this performance audit in accordance with generally acce13ted government auditing standards. Those standards reguire that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives. 9.04 Audit organizations that meet the independence requirements for internal audit organizations, but not those for external audit organizations, should include in the GAS compliance statement, where applicable, a statement that they are independent per the GAS requirements for internal auditors. 9.05 When auditors do not comply with all applicable GAS requ irements, they should include a modified GAS compliance statement in the audit report. For performance audits, auditors should use a statement that includes either (1) _th~ lan_guage in paragr?ph m~dified to indicate the requirements that were not followed, or (2) language rnd1cat1ng that the aud itors did not follow GAS. GAGAS 9.03 - J Auditing Standards: Report Format Auditors should issue audit reports communicating the results of each completed performance audit. Auditors should issue the audit report in a form that is appropriate for its intended use, either in writing or in some other retrievable form. Auditing Standards: Report Content Auditors should prepare audit reports that contain (1) the objectives, scope, and methodology of the audit; (2) the audit results, including findings, conclusions, and recommendations, as appropriate; (3) a summary of the views of responsible officials; and (4) if applicable, the nature of any confidential or sensitive information omitted. \_ Auditing Standards: Report Content Auditors should communicate audit objectives in the audit report in a clear, specific, neutral, and unbiased manner that includes relevant assumptions. In order to avoid potential misunderstanding, when audit objectives are limited but users could infer broader objectives, auditors should state in the audit report that certain issues were outside the scope of the audit. - - Auditing Standards: Report Content Auditors should describe the scope of the work performed and any limitations, including issues that would be relevant to likely users, so that report users can reasonably interpret the findings, conclusions, and recommendations in the report without being misled. Auditors should also report any significant constraints imposed on the audit approach by information limitations or scope impairments, including denials of, or excessive delays in, access to certain records or individuals. Auditing Standards: Report Content In describing the work performed to address the audit objectives and support the reported findings and conclusions, auditors should, as applicable, explain the relationship between the population and the items tested; identify entities, geographic locations, and the period covered; report the kinds and sources of evidence; and explain any significant limitations or uncertainties based on the auditors' overall assessment of the sufficiency and appropriateness of the evidence in the aggregate. - Auditing Standards: Report Content In reporting audit methodology, auditors should explain how the completed audit work supports the audit objectives, including the evidence-gathering and evidence-analysis techniques, in sufficient detail to allow knowledgeable users of their reports to understand how the auditors addressed the audit objectives. Auditors should identify significant assumptions made in conducting the audit; describe comparative techniques applied; describe the criteria used; and, when the results of sample testing significantly support the auditors' findings, conclusions, or recommendations, describe the sample design and state why the design was chosen, including whether the results can be projected to the intended population. ~ Auditing Standards: Report Content The report should be: Accurate: An accurate report is supported by sufficient, appropriate evidence with key facts, figures, and findings being traceable to the audit evidence. Objective: Objective means that the presentation of the report is balanced in content and tone. A report's credibility is significantly enhanced when it presents evidence in an unbiased manner and in the proper context. Complete: Being complete means that the report contains sufficient, appropriate evidence needed to satisfy the audit objectives and promote an understanding of the matters reported. Convincing: Being convincing means that the audit results are responsive to the audit objectives, that the findings are presented persuasively, and that the conclusions and recommendations flow logically from the facts presented. Auditing Standards: Report Content Clear: Clarity means the report is easy for the intended user to read and understand. Preparing the report in language as clear and simple as the subject permits assists auditors in achieving this goal. Concise: Being concise means that the report is no longer than necessary to convey and support the message. Extraneous detail detracts from a report and may even conceal the real message and confuse or distract the users. Timely: To be of maximum use, providing relevant evidence in time to respond to officials of the audited entity, legislative officials, and other users' legitimate needs is the auditors' goal. _,;' Auditing Standards: Report Conclusions Reporting Findings, Conclusions, and Recommendations 9.18 In the audit report, auditors should present sufficient, appropriate evidence to support the findings and conclusions in relation to the audit objectives. Auditors should provide recomrnendations for corrective action if findings are significant within the context of the audit objectives. Auditors should report conclusions based on the audit objectives and the audit findings. r \_ ._/ Auditing Standards: Report Conclusions Auditors should describe in their report limitations or uncertainties with the reliability or validity of evidence if (1) the evidence is significant to the findings and conclusions within the context of the audit objectives and (2) such disclosure is necessary to avoid misleading the report users about the findings and conclusions. Auditors should describe the limitations or uncertainties regarding evidence in conjunction with the findings and conclusions, in addition to describing those limitations or uncertainties as part of the objectives, scope, and methodology. - Auditing Standards: Report Conclusions Auditors should place their findings in perspective by describing the nature and extent of the issues being reported and the extent of the work performed that resulted in the findings. To give the reader a basis for judging the prevalence and consequences of these findings, auditors should, as appropriate, relate the instances identified to the population or the number of cases examined and quantify the results in terms of dollar value or other measures. If the results cannot be projected, auditors should limit their conclusions appropriately --- Auditing Standards: Report Conclusions When reporting on the results of their work, auditors should disclose significant facts relevant to the objectives of their work and known to them that if not disclosed could mislead knowledgeable users, misrepresent the results, or conceal significant improper or illegal practices. ____~._. ■ =, :!!!!" r-- • -- Auditing Standards: Report Conclusions When feasible, auditors should recommend actions to correct deficiencies and other findings identified during the audit and to improve programs and operations when the potential for improvement in programs, operations, and performance is substantiated by the reported findings and conclusions. Auditors should make recommendations that flow logically from the findings and conclusions, are directed at resolving the cause of identified deficiencies and findings, and clearly state the actions recommended. Auditing Standards: Reporting Fraud Reporting on Instances of Fraud 9.40 Auditors should report a matter as a finding when they conclude, based on sufficient, appropriate evidence, that fraud either has occurred or is likely to have occurred that is significant to the audit objectives. Auditors should communicate findings in writing to audited entity officials when the auditors detect instances of fraud that are not significant within the context of the audit objectives but warrant the attention of those charged with governance. When auditors conclude fraud has occurred or is likely to have occurred, auditors may consult with authorities or legal counsel about whether publicly reporting such information would compromise investigative or legal proceedings. Auditors may limit their public reporting to matters that would not compromise those proceedings and, fo r example, report only on information that is already a part of the public record. Auditing Standards: Discovery of Insufficient Evidence after Report Released If, after the report is issued, the auditors discover that they did not have sufficient, appropriate evidence to support the reported findings or conclusions, they should communicate in the same manner as that used to originally distribute the report to those charged with governance, the appropriate officials of the audited entity, the appropriate officials of the entities requiring or arranging for the audits, and other known users, so that they do not continue to rely on the findings or conclusions that were not supported. If the report was previously posted to the auditors' publicly accessible website, the auditors should remove the report and post a public notification that the report was removed. The auditors should then determine whether to perform the additional audit work necessary to either reissue the report, including any revised findings or conclusions, or repost the original report if the additional audit work does not result in a change in findings or conclusions. - =-"E: ... mmCOEmmjd 20539 Federal Register Presidential Documents Vol. 82, No. 83 Tuesday, May 2, 2017 Title 3- Executive Order 13793 of April 27, 2017 The President Improving Accountability and Whistleblower Protection at the Department of Veterans Affairs By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Purpose. This order is intended to improve accountability and whistleblower protection at the Department of Veterans Affairs (VA) by directing the Secretary of Veterans Affairs (Secretary) to establish within the VA an Office of Accountability and Whistle blower Protection and to appoint a Special Assistant to serve as Executive Director of the Office. Sec. 2. Establishing a VA Office of Accountability and Whistleblower Protection. (a) Within 45 days of the date of this order, and to the extent permitted by law, the Secretary shall establish in the VA the Office of Accountability and Whistleblower Protection (Office), and shall appoint a Special Assistant, reporting directly to the Secretary, to serve as Executive Director of the Office. The VA shall provide funding and administrative support for the Office, consistent with applicable law and subject to the availability of appropriations. (bl To the extent permitted by law, the Office shall: (i) advise and assist the Secretary in using, as appropriate, all available authorities to discipline or terminate any VA manager or employee who has violated the public's trust and failed to carry out his or her duties on behalf of veterans, and to recruit, reward, and retain high-performing employees; (ii) identify statutory barriers to the or terminate any employee who has well-being of a veteran, and to recruit, employees; and report such barriers as to the need for legislative changes; Secretary's authority to discipline jeopardized the health, safety, or reward, and retain high-performing to the Secretary for consideration (iii) work closely with relevant VA components to ensure swift and effective resolution of veterans' complaints of wrongdoing at the VA; and (iv) work closely with relevant VA components to ensure adequate investigation and correction of wrongdoing throughout the VA, and to protect employees who lawfully disclose wrongdoing from retaliation. (cl In establishing the Office, the Secretary shall consider, in addition to any other relevant factors: (i) whether some or all of the functions of the Office are currently performed by an existing VA office, component, or program; (ii) whether certain administrative capabilities necessary for operating the Office are redundant with those of another VA office, component, or program; and (iii) whether combining the Office with another VA office, component, or program may improve the VA's efficiency, effectiveness, or accountability. Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or 20540 Federal Register/ Vol. 82, No. 83 / Tuesday, May 2, 2017 / Presidential Documents (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. THE WHITE HOUSE, April 27, 2017. [FR Doc. 2017-08990 Filed 5- 1-17 ; 11:15 am] Billing code 3295-F7-P CHECKLIST FOR INVESTIGATING OFFICERS 1. Preliminary Matters: a. Has the appointing authority designated, in writing, the appropriate investigating officer based on availability, experience, and expertise? b. Is there an appointment memorandum/letter that clearly states the purpose and scope of the investigation, the points of contact for assistance (if appropriate), and the nature of the findings and recommendations required? c. If necessary or determined to be part of the process, has the initial legal briefing been accomplished or initial coordination conducted with OGC? 2. Investigative Plan. a. Does the investigative plan outline the background information that must be gathered, identify the witnesses who must be interviewed, and order the interviews in the most effective manner? b. Does the plan identify witnesses no longer in the agency and address alternative ways of interviewing them? c. Does the plan identify information not immediately available and outline steps to quickly obtain the information? 3. Conducting the Investigation. a. Is the chronology being maintained in sufficient detail to identify causes for unusual delays? b. Is the information collected (witness statements, MFR'S of phone conversations, photographs, etc.) being retained and organized? c. Is routine coordination with the legal advisor being accomplished? 4. Preparing Findings and, if applicable, Recommendations. a. Is the evidence assembled in a logical and coherent fashion? b. Does the evidence support the findings (including unsubstantiated findings, findings of no fault, or no misconduct)? Does each finding cite the exhibits that support it? c. Are the recommendations supported by the findings? Does each recommendation cite the findings that support it? d. Are the findings, and if applicable, recommendations responsive to the tasking in the appointment document? e. Did the investigation address all the issues (including systemic breakdowns; failures in supervision, oversight, or leadership; program weaknesses; accountability for errors; and other relevant areas of inquiry) raised directly or indirectly by the appointment? 5. Final Action. Was an appropriate legal review conducted? SCOPE OF OAWP INVESTIGATIONS AND REFERRALS FOR INVESTIGATION OAWP accepts disclosures from VA employees and applicants for VA employment alleging: I } • • • • a potential violation of any law, rule or regulation; gross mismanagement or gross waste of funds; abuse of authority; or substantial and specific danger to public health or safety. OAWP directly investigates whistleblower disclosures that raise allegations of misconduct, retaliation, or poor performance involving: • • • VA senior executives; VA employees in a confidential, policy-making, policy-determining, or policy-advocating position; and supervisory employees, if the allegation involves retaliation against a VA employee for making a whistleblower disclosure. All other whistleblower disclosures are either referred out to another VA investigative entity with oversight provided by OAWP or, because they fall outside of OAWP's scope, are closed-out by OAWP and, if appropriate, routed to another VA investigative entity. Examples of matters outside of OAWP's scope: • • • allegations involving crimes (see 38 C.F.R. § 1.204): closed-out by OAWP and transmitted to VA's Office of Inspector General; allegations made by non-VA employees and applicants for employment (see 38 U.S.C. § 323(g)(3)): transmitted by OAWP to the responsible VA administration or staff office; and allegations involving equal employment opportunity (EEO) discrimination, EEO reprisal , sexual harassment, and hostile work environment (see VA Directi ve 5977): OAWP notifies the disclosing individual that he or she may contact VA's Office of Resolution Management. JOB TASK CHECKLIST FOR INVESTIGATORS ) (Appendix A from CIGIE Quality Standards for Investigations Handbook) Receipt, Analysis, and Disposition of Allegations(s) _ Obtain data from complainant or source _ Document complaint in writing _ Know prosecutive or regulatory criteria _ Identify violations (elements of crime) or administrative standards _ Review and identify significant information or potential evidence _Determine correct disposition of complaint (criminal, civil, or administrative) _ Open investigation, if appropriate, and coordinate with appropriate authorities (internally/externally) Assessment, Focus, and Preparation of Investigative Plan _Review available information and evidence _ Review legal decisions and guidelines _Review agency programs, operational policies, and procedures _Determine focus and scope of investigation _ Assess and identify required resources _ Identify potential witnesses, suspects, relevant documents, and evidence _ Organize and prioritize investigative activities _ Prepare initial investigative plan Conduct Investigation _Maintain focus and follow investigative plan (revise as necessary) _Prepare for anticipated investigative activities (interviews, taking statements) _ Apply knowledge of laws and/or regulations _Understand and apply techniques to ensure constitutional rights _ Project a professional image _ Use good oral and written communicative skills Job task checklist for investigators _ Know evidentiary rules _ Collect, analyze, and preserve evidence _ Use appropriate specialized techniques (search warrants, forensics, consensual monitoring) _ Conduct reviews and data inquiries and promptly document such activities _Collect and analyze financial data _ Assess progress and re-focus when necessary _Coordinate progress with supervisor (prosecutors or management, as appropriate) _ Maintain appropriate liaison _Effectively manage the case and assist personnel and meet planned milestones _Obtain IG or grand jury subpoenas and/or testify before grand jury Review, Organize, and Evaluate Investigative Findings _ Review and understand the information gathered _ Organize the information and evidence gathered _Correlate data, witnesses, and records _ Consider internal/external customer needs Draft Report, Validate Contents, and Submit Final Report _ Write draft report--ensure accuracy, thoroughness, objectivity, proper format, clarity, and correct grammar _ Review report to ensure information is correct and complete _Consider issues such as confidentiality, the Privacy Act, the Freedom of Information Act, and security classification _ Include disclosure caveats where appropriate _Write final report _ Distribute to appropriate entities Post-Investigative Tasks Know rules of criminal and/or civil procedure _ Assist with preparation for court/administrative proceedings Job task checklist for investigators _Serve witness subpoenas _ Assist U.S. Attorney/District Attorney at trial if applicable _ Testify at trial, if applicable _Document and report results, dispositions, and outcomes _ Obtain disposition of exhibits and evidence after trial/hearing _ Return and document proper disposition of documents and evidence _Review the organization of investigative files for efficient retrieval _ Archive investigative files _ Ensure information management database reflects accurate and final case information Appendix C Non-Exhaustive Table of Legislation, Executive Orders, Standards, Regulations, and Other Guidance for Investigators Document 1. Lelrislation Crimes, 18 U.S.C. §§ 1-2725 and Criminal Procedure, 18 U.S.C. §§ 3001-3771 Electronic Communications Protection Act, 18 U.S.C. §§ 25102522 (Wiretap Statute) False Claims Act, 31 U.S.C. §§ 3729-3733 ~ - (P.L. 99-562) Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g Federal Conflict of Interest Laws, 18 u.s.c. §§ 202-209 Federal Tort Claims Act, 28 U.S.C. §§ l 346(b), 2671-80 ) Description Establishes crimes and criminal procedures as they pertain to 010 oversight of departmental programs. Limits the ability of law enforcement officers to intercept electronic communications without judicial authorization, and regulates the use and disclosure of information obtained throuJZh authorized wiretaps. Establishes civil liability for fraudulent claims submitted to the Federal Government. Imposes additional restrictions on the use of administrative subpoenas to obtain educational records from an educational agency or institution. Establishes criminal conflict of interest penalties for Federal employees. Authorizes the public to bring civil lawsuits against the Federal Government for the negligent acts of Federal employees within the scope of their employment that cause injury to person or property. Allows members of the public to obtain Federal records subject Freedom of Infonnation Act, as amended, 5 U.S.C. § 552 (P.L. 104- to certain exemptions (including exemptions for certain investigative infonnation). 231) Health Insurance Portability and Accountability Act of 1996, 29 U.S.C. § 1181 (P.L. 104-191) The Inspector General Act of 1978, as amended, 5 U.S.C. App. 3 (P.L. 95-452); Inspector General Reform Act of 2008, (P.L. 110-409) Law Enforcement Availability Pay Act of 1994, 5 U.S.C. § 5545a Protects the privacy of confidential personally identifiable medical information. Law Enforcement Officers Safety Act of 2003, Chapter 44, 18 U.S.C. § 926 B-C (P.L. 108-277) Pen/frap Statute, 18 U.S.C. § 3121 Authorizes qualified law enforcement officers (including certain qualified retired officers) to carry a concealed firearm. Privacy Act, 5 U.S.C. § 552a (P.L. 93-579) Establishes independent and objective Offices of Inspector General; establishes IO subpoena power and other authorities. Authorizes additional pay to criminal investigators to ensure availability for unscheduled official duties. Requires government entities to obtain a warrant before collecting real-time information, such as dialing, routing, and addressing information related to communications. Protects personal individual information held by Federal agencies, and authorizes individuals to obtain and to seek corrections to those records. ) C-1 Procurement Integrity Act, 41 u.s.c. § 423 u.s.c. §§ 2701-2712 Prohibits the release of source selection and contractor bid or personal information and sets conflict of interest requirements for procurement personnel. Establishes an administrative process to allow Federal agencies to recover for fraudulent claims to the agency of up to $150.000. Requires that agencies provide individuals and partnerships with five or fewer partners with notice and an opportunity to object before a financial institution can disclose personal financial information in response to an administrative subpoena. Limits the Government's ability to obtain stored account information from network service providers such as ISPs. Trade Secrets Act, 18 U.S.C. § 1905 Prohibits government employees from disclosing certain confidential or proprietary business infonnation. Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 1512-1S15 Defines tampering with a witness, victim, or informant; requires Federal law enforcement agencies to have guidelines and policies to provide services to victims of crimes. Protects the rights of, and prevents retaliation against, Federal employees who disclose governmental fraud, waste, abuse, and other improper activitv. Authorizes agencies to exempt law enforcement officers from mandatory retirement at age 57 with 20 years of covered law enforcement service. Prevents retaliation against contractor employees for certain disclosures of information relating to a substantial violation of law related to a contract. Program Fraud Civil Remedies Act. 31 U.S.C. § 3801 etgg. Right to Financial Privacy Act, 12 u.s.c. § 3401 et m- Stored Communications Act, 18 Whistleblower Protection Act, 5 u.s.c. § 1204, 22 u.s.c. § 4137 5 U.S.C. §§ 842S(b), 8335 41 u.s.c. § 265 2. Executive Orders Administrative Allegations Against Inspectors General, Exec. Order No. 12993, 61 Fed. Reg. 13043 (March 21, 1996) Integrity and Efficiency in Federal Programs, Exec. Order No. 12805, 57 Fed. Reg. 20627 (May 11, 1992) Principles of Ethical Conduct for Government Officers and Employees, Exec. Order 12731, 55 Fed. Reg. 42547 (October 17, 1990) Directs the PCIE and ECIE Integrity Committee to receive, review, and refer for investigation allegations of wrongdoing against IGs and certain staff members of OIGs (Note superseded by passage of the Inspector General Refonn Act of 2008). Establishes the PCIE and ECIE and describes their functions and responsibilities (note-superseded by passage of the Inspector General Reform Act of 2008). Lays out principles of ethical conduct, Office of Government Ethics authority. agency responsibilities, delegations of authority, and general provisions. ) C-2 ) ) 3. Standards PCIE/ECIE Quality Standards for Federal Offices of Inspector General (Oct 2003) Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR Part 2635 (June 2009) 4. Other Guidance and Reimlations Attorney General Guidelines for Domestic FBI Operations (Sept. 29, 2008) Attorney General Guidelines for Offices of Inspector General with Statutory Law Enforcement Authority ,i,.. I'<' ri...r· (_ Knowledge Check - Answers Directions: Match the letters in Column B with the descriptions in Column A. Answers in Column B may be used for more than one description in Column A or not at all. Column A D 1. The Ol&T Director tells all employees in her program that they should never go to Column B A. Core Values B. Executive Core Qualifications C. Merit System Principles D. Prohibited Personnel Practices the Inspector General or the Office of Special Counsel to complain about her program. D 2. The Cemetery Director does not hire Jane based on Senator Smith's recommendation. D 3. Chris' Supervisor takes away key job duties because he will not make a donation to his Supervisor's favorite political candidate. D 4. Jill is not selected for training because she reported a gross waste of funds to VAOIG. C 5. A recruiter participates in career fairs targeting minorities, women, and persons with disabilities to diversify the applicant pipeline. C 6. The Chief of Staff awards annual performance bonuses solely on merit-based rationale. D 7. Associate Facility Director does not give Jennifer, an eligible Veteran, preference over other applicants on the Certificate of Eligibility, although she qualifies for it. D 8. Joe tells a manager to select Joe' s son over other better qualified applicants. D 9. Nursing Director tells Jack not to apply for the ER Department Chief Nurse position because he is not qualified, although Jack is qualified for the position. D 10. VISN Director refuses to promote the IT Manager because she is a single mother. 9/4/2019 1"< I ,1.11)~• r.-...r• \__ ..__.. Whistleblower Retaliation and Protected Disclosures ■ I.,[ . __,_ ---■ i'iiiiiiiiii ._,. Whistleblower retaliation and protected disclosures ✓/?Yi 9/4/2019 Whistleblower disclosures are crucial in helping to expose fraud, waste, abuse, mismanagement, and threats or harm to public health and safety across the Federal government. Whistleblowers disclosures save billions of dollars and even human lives. Retaliating against a whistleblower is a Prohibited Personnel Practice (PPP). Whistleblower retaliation is cause for disciplinary action (e.g., suspension, demotion, removal, debarment from Federal employment). Victims of whistleblower retaliation are also entitled to corrective action and relief (e.g., restoring the employee back to his or her position). lb f ..,,. l i,. f~,JI ' Protected disclosures ¥/?iii 9/4/2019 ■ Protected disclosures are defined as disclosing information which the whistleblower reasonably believes evidences: 1. a violation of law, rule, or regulation; 2. gross mismanagement; 3. gross waste of funds; 4. an abuse of authority; 5. a substantial and specific danger to public health or safety; or 6. Censorship related to scientific research, analysis or technical information. ■ Determining what is a protected disclosure : ■ The information disclosed does not have to be accurate to be protected. ■ No requirement that a whistleblower go through his or her chain of command. ■ Whistleblower's personal motivation does not negate reasonable belief. ■ Employee or applicant is protected if an employer mistakenly believes the employee or applicant is a whistleblower. GRUI Pf;\'( .,. ,,.,,. J..,. f~.Jf 4 ."'- Whistleblower retaliation~!~ 9/4/2019 ■ Whistleblower Retaliation: A Federal employee authorized to take, direct others to take, recommend or approve any personnel action MAY NOT take, fail to take, or threaten to take any personnel action against an employee because of a protected disclosure. EXAMPLE: A supervisor directs the geographic reassignment of an employee because the employee reported safety violations to senior agency officials. ■ Personnel actions that may constitute retaliation include (but are not limited to) reassignment, suspension, termination, adverse pay decisions, or a change in duties, responsibilities or working conditions, such as suspending an employee's ability to telework. (~~Ol'P l~C i., C"" l"' t '--- Whistleblower retaliation complaints :·• 9/4/2019 ~ ·;5 _; Elements of a whistleblower retaliation complaint: An employee filing a whistleblower retaliation complaint must show that: 1) he or she engaged in an activity that he or she reasonably believed to be a protected disclosure; 2) the employer knew about the protected disclosure and the identity of the employee making the disclosure; 3) the employer took, failed to take (e.g., such as in the case of a promotion), threatened to take, or influenced an official to take a personnel action against the employee; and 4) the protected disclosure was a contributing factor in the personnel action. If all these elements are met, the agency then would have to show by clear and convincing evidence that it would have taken the same action without the disclosure. Clear and convincing evidence factors include the: 0 strength of the evidence in support of the personnel action; 0 existence and strength of a motive to retaliate; and 0 Treatment of similar employees who are not whistleblowers. Knowledge Check Directions: Match the letters in Column Bwith the descriptions in Column A. Answers in Column B may be used for more than one description in Column A or not at all. Column A - Column B 1. A disclosure of wrongdoing which the employee reasonably believes evidences a violation of law, rule, or regulation; gross mismanagement; or abuse of authority. A. Equal employment opportunity complaint 2. A disclosure of wrongdoing which the employee reasonably believes evidences a substantial and specific danger to public health or safety. B. Merit System Principles 3. An action filed with the Office of Special Counsel in response to an alleged Prohibited Personnel Practice. C. Prohibited Personnel Practices 4. Personnel action taken against a VA employee in response to contacting a member of Congress about patient safety. D. Office of Special Counsel Complaint 5. An unlawful personnel action such as retaliation or discrimination that may be disclosed to the Office of Special Counsel (OSC). E. Whistleblower Disclosure 6. Any personnel action against a VA employee because the employee filed a Whistleblower Disclosure with the Office of Special Counsel (OSC). F. Whistleblower Retaliation 7. Core corporate values that guide the Federal Human Capital Management System. 8. Personnel action taken against a VA employee in response to filing a claim of gross mismanagement with the Office of Special Counsel (OSC). 9. Those things a Federal employee with personnel action authority MAY NOT DO. 10. Treating VA employees and applicants for employment fairly and equitably. C-RO\'.P 1"-C llr<{.,~ l"' r"-'1' "- Knowledge Check - An swe rs Directions: Match the letters in Column B with the descriptions in Column A. Answers in Column 8 may be used for more than one description in Column A or not at all. Column A Column B E 1. A disclosure of wrongdoing which the employee reasonably believes evidences a violation of law, rule, or regulation; gross mismanagement; or abuse of authority. A. Equal employment opportunity complaint E 2. A disclosure of wrongdoing which the employee reasonably believes evidences a substantial and specific danger to public health or safety. B. Merit System Principles D 3. C. -F and C An action filed with the Office of Special Counsel in response to an alleged Prohibited Personnel Practice. Prohibited Personnel Practices 4. Personnel action taken against a VA employee in response to contacting a member of Congress about patient safety. D. Office of Special Counsel Complaint C 5. E. Whistleblower Disclosure - An unlawful personnel action such as retaliation or discrimination that may be disclosed to the Office of Special Counsel (OSC). F and C 6. Any personnel action against a VA employee because the employee filed a Whistleblower Disclosure with the Office of Special Counsel (OSC). F. Whistleblower Retaliation B 7. Core corporate values that guide the Federal Human Capital Management System. -F and C 8. Personnel action taken against a VA employee in response to filing a claim of gross mismanagement with the Office of Special Counsel (OSC). C 9. Those things a Federal employee with personnel action authority MAY NOT DO. B 10. 9/4/2019 Treating VA employees and applicants for employment fairly and equitably. (:ROl ' P 11\'C Agencies and groups that protect and enforce employee rights '--- Agencies that enforce employee rights U.S. Office of • • Special Counsel (OSC) I • • _ !'.Pi;;Cl,\{. e,.;,.o'r - . ~. '-!l \:!. r~ c. . ..,R.., fd~ ~ - .... • • ,,, S'4;-· -0 ..... !" • U.S. Merit Systems Protection Board (MSPB) • •C\.... - - r.-'\'TE sO'r • • • • Independent agency enforcing whistleblower protections, safeguarding the merit system, and providing a secure channel for whistleblower disclosures. OSC may accept whistleblower disclosures and require an agency to investigate the disclosures. OSC may accept and investigate Prohibited Personnel Practices (PPP), especially whistleblower retaliation complaints. OSC may recommend corrective action (e.g., placing an employee back in his or her position) for a whistleblower. OSC may recommend disciplinary action against employees who commit PPP, including whistleblower retaliation. If the agency refuses to comply with OSC' s recommendation for corrective or disciplinary action, OSC may file a complaint with the Merit Systems Protection Board (MSPB). Independent agency protecting merit system principles and promoting an effective Federal workforce free of Prohibited Personnel Practices (PPP). Hears and decides appeals of disciplinary and performance-based actions filed by employees appointed under title 5 of the United States Code, including employees in the Senior Executive Service. May hear and decide appeals in certain other instances for employees appointed under title 38 of the United States Code. Hears and decides actions filed by the U.S. Office of Special Counsel (OSC). Can require an agency to take corrective action for a whistleblower or disciplinary action against an employee who has committed a PPP, including whistleblower retaliation. 9/4/2019 Web: www.osc.gov Prohibited Personnel Practices: 800-872-9855 Disclosures: 800-572-2249 I Web: www.mspb.gov - kct .r• Jy ,.,,., ,__ L -~ Agencies that protect and enforce employee rights U.S. Equal Employment Opportunity Commission (EEOC) • VA Office of Resolution Management (ORM) • VA Office of Employment Discrimination Complaint Adjudication (OEDCA) • 9/4/2019 Independent agency responsible for enforcing Federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy and gender identity), national origin, age (40 or older), disability or genetic information. Hears and decides discrimination complaints, including workplace hostility (hostile work environment) complaints due to one of the classes described above. Hears and decides complaints on reasonable workplace accommodations. Hears and decides complaints alleging retaliation for filing a discrimination complaint or participating in an employment discrimination investigation or lawsuit. Can require an agency to take corrective action. I Web: W\VVv.eeoc.gov Promotes a discrimination-free work environment focused on serving Veterans by preventing, resolving, and processing workplace disputes in a timely and effective manner. Investigates allegations of discrimination, workplace hostility (hostile work environment), and retaliation for filing discrimination complaints. Investigates complaints on reasonable workplace accommodations. I Web: www.va.gov/ORM Reviews the merits of employment discrimination claims filed by present and former VA employees and non-agency applicants for employment. Issues final agency decisions and orders adjudicating employment discrimination complaints. Final agency decisions issued by OEDCA may be appealed to the EEOC and if appropriate the Merit Systems Protection Board (MSPB). Individuals may also file a civil action in the appropriate United States District Court based on a final agency decision issued by OEDCA. I Web: W\-v,-v.oedca .va.gov -- D 7 □ □ i., 1..., 11v ri...r· - "- Groups that protect employee rights VA Office of Inspector General (VAOIG) • • • • • • Congress • • • • Provides independent advice and objective reporting to the Secretary of Veterans Affairs and Congress. Investigates criminal activity, waste, abuse, mismanagement, safety issues, and violations of law. Employees must report actual or possible violations of criminal law to VAOIG. VAOIG may recommend disciplinary action against employees to VA management or criminal action to the Department of Justice. VAOIG also investigate substantial allegations of whistleblower retaliation against employees of VA contractors or grantees. VAOIG Whistleblower Protection Ombudsman provides education about protections for current or former employees of VA, VA contractors, or VA grantees who make protected disclosures. Individuals (both employees and members of the public) may make a protected disclosure by raising allegations of wrongdoing, waste, abuse, mismanagement, safety issues, and violations of law to any member of Congress. The member can then contact VA to follow-up on the information provided by the individual. The member may also forward the information provided by the individual to another Federal agency for enforcement. Congress may also independently investigate the protected disclosure . 9/4/2019 Web: www.va.gov/OIG VAOIG hotline: 800-488-8244 E-mail: vaoighotline@va.gov U.S. House of Representatives : www.house.gov U.S. Senate: www.senate.gov I>,!"" I ~• T\.tt ' ' __,,, ~ Groups that protect employee rights VA Office of Inspector General (VAOIG) • • • • • • Congress • • • • 9/4/2019 Provides independent advice and objective reporting to the Secretary of Veterans Affairs and Congress. Investigates criminal activity, waste, abuse, mismanagement, safety issues, and violations of law. Employees must report actual or possible violations of criminal law to VAOIG. VAOIG may recommend disciplinary action against employees to VA management or criminal action to the Department of Justice. VAOIG also investigate substantial allegations of whistleblower retaliation against employees of VA contractors or grantees. VAOIG Whistleblower Protection Ombudsman provides education about protections for current or former employees of VA, VA contractors, or VA grantees who make protected disclosures. Web: www.va.gov/OIG Individuals (both employees and members of the public) may make a protected disclosure by raising allegations of wrongdoing, waste, abuse, mismanagement, safety issues, and violations of law to any member of Congress. The member can then contact VA to follow-up on the information provided by the individual. The member may also forward the information provided by the individual to another Federal agency for enforcement. Congress may also independently investigate the protected disclosure . U.S. House of Representatives: www.house.gov VAOIG hotline: 800-488-8244 E-mail: vaoighotJine@va.gov U.S. Senate: www.senate.gov Groups that protect employee rights 9/4/2019 YOU • VA employees have a duty to abide by and enforce the law. • VA managers and supervisors are held to a higher standard. • VA managers and supervisors must: • abide by and enforce all laws; • never commit Prohibited Personnel Practices (PPPs); • never retaliate against employees who blow the whistle; • take whistleblower disclosures seriously and, when appropriate, investigate; • promote an atmosphere that allows employees to safely report wrongdoings or violations of law, rule or regulation without the fear of reta Iiation; • proactively prevent violations of Merit System Principles and take action to prevent PPPs; • actively support VA' s commitment to equal employment, diversity and inclusion, and whistleblower rights and protections; and • remember that all your actions or inactions reflect on VA. 1 i.,,..,.1~• ri,..r· Knowledge Check Can revise if already trained using these examples Directions: Match the letters in Column B with the descriptions in Column A. Answers in Column B may be used for more than one description in Column A or not at all. Column A - Column B 1. Promotes a discrimination-free work environment focused on serving Veterans by preventing, resolving, and processing workplace disputes in a timely and effective manner. A. VA Managers and supervisors 2. Protects the Merit System Principles and promotes an effective Federal workforce free of Prohibited Personnel Practices. B. Merit System Protection Board (MSPB) 3. Provides education about protections for current or former employees of VA, VA contractors, or VA grantees who make protected disclosures. C. Office of Resolution Management (ORM) 4. Provides independent advice and objective reporting to the Secretary of the VA and the Congress for the purpose of bringing about positive change in the integrity, efficiency, and effectiveness of VA operations. D. Office of Special Counsel (OSC) E. Office of the VA Inspector General 5. Safeguards the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. 6. Promotes an atmosphere that allows employees to safely report wrongdoings and provides a Federal workforce free of Prohibited Personnel Practices that adheres to the merit systems principles. (VAOIG) F. VA OIG Whistleblower Protection Ombudsman C-l