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Government Investigations – an Inspector General’s perspective

Government Investigations – an Inspector General’s perspective. Clark K. Ervin and Elizabeth M. Gill, Patton Boggs, LLP AND Robert K. Tompkins, Holland & Knight, LLP February 11. 2014. SBA SUSPENSION/DEBARMENT ACTIVITY BY FISCAL YEAR. INSPECTOR GENERAL PURPOSE, FUNCTIONS, AND POWERS.

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Government Investigations – an Inspector General’s perspective

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  1. Government Investigations – an Inspector General’s perspective Clark K. Ervin and Elizabeth M. Gill, Patton Boggs, LLP AND Robert K. Tompkins, Holland & Knight, LLP February 11. 2014

  2. SBA SUSPENSION/DEBARMENT ACTIVITY BY FISCAL YEAR

  3. INSPECTOR GENERAL PURPOSE, FUNCTIONS, AND POWERS • What is an Inspector General and what is the IG’s purpose? • Types of reviews IGs may conduct • Auditing and other standards IGs follow • IG powers • Role with respect to other investigative bodies and decision-makers

  4. WHAT TO DO IF AN IG CONTACTS YOUR COMPANY • Engage counsel and define counsel’s role • Designate counsel as the primary point of contact • Counsel should politely attempt to open and control the dialogue (but remember, the IG may have the right to interview employees and others without you)

  5. WHAT TO DO…(cont.) • Understand what type of inquiry is being conducted (program review, audit, investigation, etc.) • Determine, as best you can, the scope and subject matter the IG is interested in • Determine, if you can, what prompted the inquiry (a whistleblower? Is this part of a broader inquiry?)

  6. ENGAGING COUNSEL AND OTHER SUPPORT • IG investigations are very different than litigation; In addition to investigative experience, counsel should have: • knowledge of the program (i.e. SBA, government contracting, etc.), • the statutes and regulations, • the broader policy backdrop.

  7. SELECTING COUNSEL (cont.) • When: right away and almost certainly before contacting the IG directly. • Let your counsel act as a buffer with the IG; counsel can probe the IG in ways you may not be able to. • It may be necessary and prudent to hire other professionals, such as an accountants, this should be done through counsel.

  8. MANAGING THE PROCESS INTERNALLY • Consider a document hold notice and/or information preservation process • The IG may know more than you, so it’s important to conduct your own parallel internal investigation (see below) • BUT…Be prepared to share your findings

  9. INTERNAL INVESTIGATION • Sources of information: internal and external • Preserving information and documenting the review • Be mindful that your findings likely must be disclosed • Mandatory Disclosure requirements; • suspension and debarment considerations; • federal sentencing guidelines

  10. ACTING ON INFORMATION • Be proactive: • Assess compliance – is there a violation? Is there a difference of interpretation of program rules or requirements? • Assess internal controls – can they be enhanced? • Determine the need for corrective action, and take it where appropriate • Communicate your efforts to the IG

  11. MANAGING THE RELATIONSHIP WITH THE IG -- SOME COMMON ISSUES • Manage the scope of the inquiry – narrowing and refining the scope of IG requests • Understand and anticipate the IG’s concerns and be prepared to mitigate/explain issues • Understand and act on the IG’s investigative requirements and standards • Seek the opportunity to comment on findings/draft reports before they are finalized

  12. WHAT DOES THE IG DO WITH THE INFORMATION IT COLLECTS? • The IG’s role is to gather facts and make recommendations • For investigations, the investigator will draft a report, but it may be for internal government use only • In other cases the IG may prepare a public report • The IG mayseek comments on a draft report, but they are not required to do so • Remember: the IG has no enforcement authority BUT works closely with those with enforcement power

  13. CONSIDER HOW THE IG REPORT WILL BE USED • Some possibilities-- • As a precursor or basis for other government action (i.e. administrative, civil, criminal) • As a basis for further inquiry (i.e. related to the agency actions above, by Congress, by the Press) • Be prepared to manage the impact of the release of the IG’s report

  14. BEST PRACTICES • Adopt and maintain a sound ethics and compliance program • Establish an early warning system • Be proactive in responding to any government inquiry • Take any IG inquiry very seriously • Do your best to get ahead of the curve and be proactive in your response

  15. For Further Information Robert K. Tompkins Partner Holland & Knight, LLP 800 17th Street, NW Washington, DC Robert.Tompkins@hklaw.com Clark Ervin, Partner Patton Boggs, LLP 2550 M Street, NW, Washington, DC 20037 cervin@pattonboggs.com

  16. For Further Information Holland & Knight Patton Boggs Clark K. Ervin Patton Boggs, LLP 2550 M Street, NW, Washington, DC 20037 (202) 457-5234 Cervin@pattonboggs.com Elizabeth M. (Liz) Gill Patton Boggs, LLP 2550 M Street, NW Washington, DC 20037 (202) 457-5166 egill@pattonboggs.com Robert K. (Bob) Tompkins Holland & Knight, LLP 800 17th Street, NW Washington, DC (202) 469-5111 Robert.Tompkins@hklaw.com

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