Criminal and Administrative Investigations A Primer For Auditors

2. Criminal and Administrative InvestigationsA Primer For Auditors

3. Criminal and Administrative InvestigationsA Primer For Auditors(a/k/a “How to avoid the OOPS factor”)Michael RamageGeneral CounselFlorida Department of Law Enforcementmichaelramage@fdle.state.fl.us

4. “Not Ready For Prime Time” Cast: Auditor Joe Friday (a/k/a Me) University Purchasing Agent John D. Owe (a/k/a your ACUA Board Member Ransom McLung, Florida State University) IN…

5. The Case of the Cheapo-Laptops

6. Coming this fall to a TV near you… BAD BOYS AUDITORS… (Whatcha Gonna Do When They Come For You?)

7. Criminal and Administrative InvestigationsA Primer For Auditors

8. Why is this important to auditors? • Audits may reveal indicators of crime • Audits may result in “internal investigations” and “internals” may develop into criminal investigations • Constitutional protections apply automatically

9. Why is this important to auditors? • Failure to comprehend those protections can adversely impact criminal investigations • Understanding the protections help prevent inadvertent violations • Understanding the protections help you remain focused on audit goals, and “know when to punt” to others

10. The Fifth Amendment “No person shall… be compelled in any criminal case to be a witness against himself….”

11. Competing Roles of Government Government as EMPLOYER -vs..- Government as INVESTIGATOR & PROSECUTOR

12. Things aren’t always as they initially appear…

13. The Supreme Court Case Garrity v. New Jersey385 U.S. 493 (1967) -- “You must answer or be fired” (Employer policy) -vs- -- “You have a right against self incrimination” (5th Amendment)

14. The Supreme Court Case Garrity v. New Jersey385 U.S. 493 (1967) Held by the Court: Threat of being fired if you don’t talk is COMPULSION. 5th Amendment prohibits self-incrimination. • Statements given under threat of loss of job cannot be used in criminal prosecution • (Automatic “use immunity” and “derivative use immunity”)

15. Subsequent cases… • Employer cannot discipline/fire employee SOLELY upon employee’s assertion of Fifth Amendment right. Gardner v. Broderick, 392 U.S. 273 (1968) • Employer can discipline/fire if employee not required to relinquish constitutional rights and still refuses to answer questions drafted specifically, narrowly and directly to employee’s duties. Uniformed Sanitation Men Assn. v. Commissioner, 392 U.S. 280 (1968).

16. Subsequent cases… • The U.S. Supreme Court unanimously ruled in 1998 that public employees can be terminated for untruthfulness to their superiors or to internal affairs investigators. Lachance v. Erickson, 522 U.S. 262 (1998).

17. 5 Basic Rules From Garrity… 1—An employee cannot be forced to surrender his or her 5th Amendment rights against self-incrimination under threat of being fired. Cannot use statement in criminal prosecution. 2—An employee can be ordered to cooperate in an internal administrative investigation and answer questions specifically, directly and narrowly related to the officer’s official conduct. (Subject to Rule #1, above.) 3—An employee may not refuse to answer specific, direct and narrow job-related questions as long as the employing agency does not compel a waiver of constitutional rights. 4—An employee can be disciplined or fired for refusing to cooperate and provide statements in an internal administrative investigation after a Garrity advisory (indicating the answers cannot be used in criminal investigation) has been made. 5—Employees have no right to lie when answering questions.

18. Can there be “implied” coercion? UNITED STATES vs.. COMACHO, 739 F. Supp. 1504 (S.D. Fla – 1990) Legal Standard For Determining "Compulsion" in IMPLIED Garrity Situations— *Officer must subjectively believe that he/she is compelled to give a statement under threat of job loss AND *Officer’s belief must be objectively reasonable at time of statement based upon conduct of government representatives (i.e. agency investigators, prosecutors, criminal investigators).

19. Suggestion… IF YOU ENCOUNTER INDICATIONS OF POSSIBLE CRIMINAL CONDUCT IN THE COURSE OF AN AUDIT INTERVIEW, YOU MAY WANT TO SUSPEND THE INTERVIEW AND CONTACT YOUR AGENCY'S INTERNAL AFFAIRS OR CONTACT LAW ENFORCEMENT.

20. Good general rule: Administrative inquiries should give way to criminal investigation, allowing criminal investigative statements to be taken first.

21. Administrative Workplace Searches REASONABLE --IN INCEPTION --IN EXECUTION

22. The Hypotheticals…

23. Some Tips…

24. Some Tips… • (From a school policy manual) • LOCKERS • Your locker is the property of the school and is provided for your use by the school. It should be used to house your textbooks and other school materials when they are not in use, and any coats, overshoes, or other outdoor garments. Your locker is subject to periodic inspection for cleanliness without prior notice, without consent, and without you as a student present. It may also be entered by the administration at any time if it might be suspected of containing alcohol, narcotics, explosives, or other items considered potentially harmful to the students or to the school building, unlawfully obtained…. • SEACH AND SEIZURE • Unless the health or safety of other students and personnel in the school setting are endangered by a probable delay, all searches of any nature will be conducted by an administrator or a person appointed by the administration. … • KEY CONCEPTS: Reminder that “workplace” is not personal property; • Notice that “workplace” will be subject to inspection or review • or searched upon reasonable cause…. • …and indicates WHO will be doing such searches.

25. Some Tips… Workplace Search Policy To safeguard our employees, their property, our university’s students and visitors, and the university’s property, and to enforce the university’s policies prohibiting misconduct, including theft and the unlawful use or sale of illegal drugs or alcohol, university management may question employees and/or inspect any personal property or any area from which the university conducts business, including any leased spaces, facilities and/or vehicles. (For example: vehicles, brief cases, suitcases, tool boxes, computer bags, backpacks, lunch boxes, purses or any other container or object brought to and from university offices, property, worksites or university-sponsored functions) whenever there is reasonable suspicion to believe that any university policy is being, or has been, violated. The university may provide offices, desks, vehicles, computers or computer containers, lockers, tools and other items for the use of university employees. At all times, these items remain the property of the university. The university may also search any work area and/or item whenever there is reasonable suspicion to believe that a university policy is being, or has been, violated. Employees are expected to cooperate with the university’s workplace searches. Violations of this policy are subject to disciplinary action, including, in the discretion of the university, immediate termination. Employees with questions regarding this policy should contact ___________________. (Get employees to acknowledge)

26. Final Tip… When in doubt, stop and seek assistance…

27. Final Tip… …and remember, “roll with the punches” when the unexpected happens.

28. That’s all folks!