BASIC PROGRAM: Investigative Process

Transcription

1 THE COUNCIL ON LICENSURE, ENFORCEMENT & REGULATION NATIONAL CERTIFIED INVESTIGATOR & INSPECTOR TRAINING BASIC PROGRAM: PARTICIPANT GUIDE 2015 The Council on Licensure, Enforcement and Regulation (CLEAR)

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3 Table of Contents In this Participant Guide This Participant Guide includes the following topics. Topic See Page Table of Contents 1 Course At a Glance 2 3

4 Course At a Glance Goals Upon completion of the session, you will be able to: Identify and analyze the elements of the complaint process. Identify the Standards of Acceptance, that is, legal sufficiency and jurisdictional tests, and be able to give a working definition of the terms. Identify and select proper investigative methods List and explain seven sources for obtaining information to implement an investigative plan. Identify resources required to implement an investigative plan. Overview The table below provides a quick overview of this course including what s covered in each lesson, the estimated time for each, and the supporting instructional media required. Duration Content Media 05 Minutes Welcome and Introductions Slide 1 15 Minutes Session Introduction Slides Minutes Slides Minutes Slides Minutes Slides Minutes Slides Minutes Slides Minutes Session Review Slides 52 59

5 Lesson 1: Complaint- An expression of pain, dissatisfaction, resentment, discontent or grief Complaint (legal)- The presentation by the plaintiff in a civil action, setting forth the claim on which relief is sought, i.e. Administrative complaint

6 Allegation Violation Inquiry Jurisdiction

7 Legally Sufficient Complaint A complaint is legally sufficient if the facts as alleged, if shown to be true, would constitute a violation of applicable law(s) or rule(s)

8 Lesson 2: Source of Complaints Consumer Other professional licensees Professional associations/societies Other state agencies Internally generated Law enforcement agencies Media Insurance companies Federal Agencies Anonymous Hospitals Attorney Representing complainant

9 Standard of Acceptance Jurisdiction Right and power to interpret and apply law Legal Sufficiency When facts as alleged are true constitute a violation of laws/rules

10 Other Issues in the Intake Process Complaints Information Statutory Requirements Written Verbal or Oral Method of Receipt and Review Centralized De-Centralized Recording of Intake Information Formal Informal

11 Lesson 3: Definition The process by which raw complaint information, in the form of verbal and written statements and documents, is applied to statutory and regulatory guidelines and mandates

12 The Intake Investigation Peer Review Expert Assistance Jurisdictional Issues Overlapping Jurisdictions Levels of Jurisdiction

13 Intake Investigation Investigator must possess working knowledge of all applicable laws Area of jurisdiction and legal sufficiency may be furthered to higher levels of law

14 Intake Investigation Once complaint has met the Standards of Acceptance in analysis stage other actions are appropriate for consideration Spheres of activity investigator may face include: Interface with criminal arena Civil law proceedings Cooperation by all regulatory agencies and law enforcement

15 Peer Review Allows investigators to: Qualify further allegations Quantify necessary elements of the violation Often necessary step of analysis depending on applicable laws of the state

16 Expert Assistance Use of experts must be considered in review stage of complaint process Experts often become witnesses in the investigation and litigation stage of the complaint process

17 Jurisdictional Issues Investigators will face overlapping jurisdictional issues In complaint analysis stage In investigation stage

18 Jurisdictional Issues Levels of Jurisdiction Proper identification of appropriate level is key Working cooperation and shared resources helpful Investigator should maintain communication with appropriate officials/agents

19 Interagency Relations Characteristics of Law Enforcement Personnel Competitive Cooperative Suspicious Persuasive Assertive

20 Interagency Relations Behavior of Individuals Result of Stimulus Officials Play Roles Predictable

21 Interagency Relations Interfacing with Agencies Seek agencies with similar jurisdictions Avoid Turf Battles Avoid Criticism Positive Influences Remember the Goal: Cooperation

22 Lesson 4: Actual role, and how you assume the role are most important to investigative plan Investigator is not generally a: Law enforcement officer Federal or criminal agent or member of the FBI Role of the Investigator Proper Review of Complaint Powers and Authority

23 The Investigative Plan Format Ask all of the important questions Time is of the essence How Who Questions to Ask What Why Where When

24 Case Development Questions What are the allegations? What law or regulations may have been violated? Administrative Judicial State/Federal What evidence will be needed to support the allegations? Testimony Physical Documentary Other

25 Case Development Issues Directly Related to Complaint Elements Sources of Information Witnesses Legal Instruments Collect and Maintain Evidence Experts Problems

26 Sample Statutes Failing to act as a licensee in such a manner as to safeguard the interest of the public, or otherwise engaging in improper, fraudulent, or dishonest conduct.

27 Sample Statutes Failing to provide expedient, reliable and dependable services when requested by a client or a client s guardian.

28 Case Development Issues Indirectly Related to Complaint Priority Assignments Costs Geographic Considerations Staff Training/Talent/Skill Levels Board Rules and Policy

29 Selection of Investigative Method Field/Central Office Inspection Use of Experts or Consultants Undercover (covert) vs. Direct (overt)

30 Required Reports and Records Almost all agencies have the power to require records Fourth amendment does not protect against report requirements Required records not protected by fifth amendment

31 Physical Inspections/Inspection Warrants Primary function of administrative inspection Must not violate fourth amendment Warrantless searches permissible in industries subject to licensing and intensive regulation

32 Subpoenas and Search Warrants Subpoena (Subpoena Duces Tecum) Official command and has coercive effect 5th Amendment self incrimination conflicts Search Warrants Requires Probable Cause Not often used in administrative cases

33 Hearings, Demand Letters and Interviews Investigative Hearings Used to further investigation and gather evidence Known as informal fact-finding Used to explore possible violations Demand Letter Issued to suspect or witness Outlines info requested and steps to be taken Interviews

34 Section 1: Seven Basic Sources for Obtaining Investigative Information Individual Investigator Has files that contain best source of information Knowledgeable of past investigations Access to other agency investigators, staff and records Records of other regulatory or law enforcement agencies

35 Complainant Provides the needed information that becomes the foundation of the investigations Identifies others involved who have knowledge of the incident

36 Respondent Subject of investigation provides response to aggrieved party s allegations Obtain copies of documents and records that substantiate the complaint Identify others who have knowledge of incident

37 Witnesses May add credibility to the complaint or refute allegations Obtain documents and records in their possession pertinent to the compliant Be aware of the relationships between witnesses and primaries

38 Public Records Provide independent information to verify or refute complaints Provide leads for further interviews Furnish legal basis for obtaining a subpoena

39 Private Records Third party records that reflect what should be in the respondent s records Third parties may be free to disclose own records However a subpoena is required if the relationship between the third party and the respondent is sensitive

40 Physical and Electronic Evidence Scene/premise searches Behavior generated evidence Surveillance/undercover operation Individuals, business or government Databases (subject to privacy rights) Scientific Evidence i.e. lab samples, test results Demonstrative evidence Commonly forgotten sources

41 Investigative Plan Number of Interviews Records Unusual Characteristics Covert vs. Overt Investigation Special Assistance

42 Resources Personnel Materials Required Financial Resources

43 Lesson 5: of the Plan Flexibility Must maintain flexibility in the planning process Ability to shift emphasis or redirect investigations critical Circumstances can change, requiring a change in planning Activity vs. Results Generally, investigators are activity-based Management by Objectives (MBO) Provides user with direction to reach a goal/objective

44 of the Plan Prosecution Requirements Relationship between investigator and prosecutor is important for the success of the investigation Prosecutor s requirements are a standard part of the working relationship Burden of Proof Board/Departmental Policies Statutory Mandates

45 Questions