Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, December 02, 2004

Will DoJ Follow Zambia's Example in re Providing Leadership to Law Enforcement in Combating Government Corruption?

Ref Zambia, if it pulls this off, would be a great example for the United States DoJ and local law enforcement.

What's noteworthy isn't simply the leadership has to remind law enforcement "that the rule of law relies on uniform application of rules."

But that despite this "well known standard of modern society, " even the FBI and local law enforcement in the United States fails to meet this standard.

Unresponsive Government

  • Excuses not to take complaints

  • Trumped up charges against those who "need to be taught a lesson"

  • Declining to investigate or prosecute cases not on the basis of the merits, but on who's the victim; the "reputation" of the victim; and whether its politically correct to bring the case

  • Why liability insurance against 42 USC 1983 claims remains a risk area

    Sure, these fit into the "declination standards" that prosecutors are given.

    But what's absurd is when officers use the "we can't win this case" as the excuse not to take a complaint; but then use the proximity of the complainant as the excuse to then dive into their personal lives, probe into areas unrelated to criminal activity.

    Such conduct does little to inspire public confidence in law enforcement. The misconduct continues.

    Samples of Unresponsive Government

  • Illusory investigations
  • Excuses not to take action
  • Feigned ignorance about misconduct
  • Mid-level management feign ignorance about local leadership efforts to look into matters

  • Notice Management Philosophy

  • Do public officials know that they are to meet and exceed the standards, not create excuses to explain away requirements;

  • Do personnel feign ignorance of the statutes and reporting requirements; and

  • Have issues which would reasonably require legal advice been ignored?

  • Interpretation requires competent legal counsel input.

    - reporting requirements,
    - investigations,
    - "honest services standard,"

    It is disturbing when information unrelated to criminal activity exists in official databases, as the FBI I-drive corroborates. Yet, officers claim they "know nothing" while testilying.

    Want to know more? Talk to the public defenders who know the reputation problems of law enforcement. They'll tell you about the deals, discussions, and eye rolling that goes on in court, "Oh, you know where that complaint is from..."

    We have yet to understand why the US parades itself as the 'standard of justice' when the courts, knowing this reputation problem, fail to impose meaningful sanctions on law enforcement.

    One way to measure the discipline problem is to look at the outside auditing plans of law enforcement. It's a sure bet there's a management-auditing problem when officers brazenly lie before the auditors, "We lie all the time."

    Are your "independent auditors" silently monitoring the situations [law enforcement- public interactions]; or are they inappropriately interjecting themselves into discussions to dissuade the public from following up on an issue?

    Find out if your local reps have in their checklists items to look for, inter alia:

  • Failure to conduct no-notice visits to FTOs, field units, or spot check the IAD logs to ensure visits. Case in point: The officers lounging around at LAX. Where were those supervisors and IAD personnel?

    Strange how the local media has close links with members of local government who feign shock and surprise when informed of police misconduct, or cursory investigations.

    Look into the ways that your local officials act on information. What records do they keep; should they be keeping to comply with code-regulations-statues-rules; and are they able to timely provide that information when asked?


    A sure sign of a problem is when a "clearly promulgated rule-code-statutory requirement to collect information" gets the response, "The computers are down."

    Make sure you know the status of the computers before making the request; and have your fellow-auditors in place to monitor both the IT system, and the individualized access at the target area. The inconsistency between what they say and what they actually report on "computer availability" can be useful information for the grand jury.

    Need to ensure you team gathers information on the status of the computers and your target area before you announce the "formal audit." Know the procedures in place to review files; the training of personnel in file access; and whether personnel when given information should reasonably be expected to competently conduct a records reviews.

  • Are their "we found nothing"-claims believable?

  • Did they really, on the first round, find nothing in the report; or have they left themselves room to say, "There was nothing in that report" implying that the investigating officer or auditor asked for the "wrong report."

    File deletions: Who really knew?

    Also, following an indictment and prosecution, it's useful to track the subsequent management actions. Sure, management pleads up and down that they "knew nothing". But if there's a pattern of behavior that suggests management has a pattern of misleading investigators, you've got something.

    Suppose your teams has determined that record retention rules are not being followed. The issue isn't simply "who ordered the destruction" but whether the management in place should have known or had the incentive to encourage this destruction.

    If your team for purposes of backstopping has filed a report [with specifics on time, location, personnel], the obvious problem arises when management in response to a subpoena or informal investigation is unable to produce a report that substantially matches the details provided.

    Other signs of problem are when stories change; when the information was clearly not taken at the time of the original complaint; but then suddenly appears.

    Look closely for inconsistencies between the original complaint and the documented records. The specifics can be important.

    Brief Backdating Checklist

  • Do the details in the various reports match;

  • Is the identifying information that "should reasonably have been collected" matching the details provided to other sources;

  • What information does your team provide: What information was originally recorded; what questions were asked; then compare this information with the final report.

  • How did "information that was not discussed" appear in the report;

  • How were details that were "never shared" suddenly able to be found; and

  • What method was used to actually complete the report details?

  • Again, it is useful to gather the information from the "other locations" well in advance of the "official notification" of the investigation. This is a no-brainer.

    Note the similarities in "final reports". When things are matching too closely, especially in situations where no questions were asked, you can reasonably assume that an investigation report has been either backdated, or that the investigation was no actually done but generated later based on the subsequent reports.

    Management does have a problem when the provide misleading statements to investigators. This is a no-brainer. The trick is to have your team in place, backstopped, and the evidence ready to submit to the grand jury before local officials realize they've been targeted. Duh.

    The best approach is to ensure that local officials believe they are up against someone who "doesn't know what they are doing" so as to give them the mistaken belief that they can get away with something.

    That's when the big guns can come in. CFE has a really nasty habit of showing up without notice to ensure the computers don't suddenly catch on fire or lose all the data.

    Signs of management alarm

    Other things to watch for are the sudden reversals in tone.

    Does management move from an attitude of "you're welcome to provide inputs" to one of "we do not allow meetings."

    Has management changed their way of dealing with complaints from one of "Oh, we'll look into that" and then shifted gears from one manger to another, all the while shifting the basis of the concern from one of "The issue is clear and it can be resolved" to one of "The issue is the disagreement."

    Notice whether the subsequent management responses to audit reports actually address the problem. The key isn't just the words in the management letter, but whether there exists factual and discoverable evidence that would either corroborate or discredit management claims about progress, actions, or efforts taken.

    For example, if management asserts that they have a training plan in place to address auditing concerns, a reasonable follow-up would be to inquire to the status of the training efforts.

    It is problematic when follow-up audits find that personnel are not actually at training at times reported in the training roster; or when management asserts [incorrectly] that personnel are actively engaged in a training program, but your team identifies by sight and name those personnel doing nothing at those times.

    Also, another no-brainer is to compare management statements to actual practices before the final report is published. There is a window of opportunity when management will say that they have a plan in place to remedy the defects, but the final report has not reached a wider audience.

    Management will use this opportunity to imply compliance; however, independent views and visits can establish whether the "management training plan" is actually achieving results.

    Interim Workforce

  • Are personnel actually able to perform the task;

  • Are personnel in the area surprised when there are deviations and errors; or

  • Is the explanation for the error consistent with the technology?

  • Sometimes management will state in their management response that there is a technical solution to a data-base problem. However, one sign of a problem is when the proposed "no-brainer management solution" cannot be replicated.

    For example, one entity suggested that the training program in place was adequately supported by a common database that tracked personnel training progress and ensured the inconsistencies were reconciled.

    Direct observations determined this "solution" was impossible. The two databases were never linked, were in geographically separate areas, and the errors continued well after the final report was signed. In short, the management response had no credibility.

    Sample Risk Indicators

  • Have personnel suddenly resigned without warning;

  • Are there unfilled positions in areas where there are repeated complaints;

  • Have problem areas gone unresolved;

  • Have personnel made misleading statements on whether they were at meetings, or aware of personnel who should be in a position to provide guidance;

  • Has senior management implied that problems are resolved, but subsequent actions fail to find evidence that a rigorous approach exists to resolve these issues;

  • Do the auditors have a requirement to take information; but there are complaints that information is actively rebuffed;

  • Do your auditors have a statutory duty to conduct performance/management reviews [unrelated to finances], yet tell informants [incorrectly] that they only take financial information;

  • Have personnel stated that they would look into an issue; but subsequent investigation fails to validate that assertion;

  • Are mid-level management feigning ignorance of the investigation results;

  • When asked about reviews and close-out, do senior managers incorrectly assert that the performance [below the standards] actually exceeds the standard; or that the issue is the auditor "doesn't agree" with the "decision" [which was actually a decision to do nothing];

  • Are there inconsistencies in how management treats the public versus the media; can media get rapid access but your backstopped informants given the brushoff;

  • Are status reports timely closed out;

  • Have there been timely resolution of the matters raised; or

  • Were the reasons given for "failure to document, monitor, or complete the work" consistent with policy; if not, what corrective action was taken?

  • In cases like these, it is useful to review the organization financial and personnel records to determine when personnel were hired; their duties; and who would reasonably be in a position to take care of requirements.

    Investigators can use the "cold approach" when revisiting retired personnel. They may not be in a position to directly know the information, but they can point you in the right direction.

    Partial Cold Approach Checklist

  • If there are no records, where are they, or where should they be;

  • If there are no personnel, who was taking care of this requirement;

  • If the job remains unfilled, how was this tasking re-delegated in the interim period; and

  • What efforts were taken to ensure this delegation was appropriate and that the primary responsibilities were still met?

  • Summary

    Public confidence in American institutions depends on responsiveness.

    The public has the federally protected right to both file a complaint and have honest services.

    It is unfortunate when clearly promulgated rules are ignored and there are substantial efforts to create the illusion of compliance.

    Public officials command a great salary. They are expected to perform. It is unacceptable when public official backdate investigation reports.

    The goal is to meet the standards, not create a climate where infractions mushroom into larger problems.

    Management has the responsibility to ensure the personnel they hire are trained and ready to do the job.

    The time to address the complaint is in the initial stages, not when it mushrooms into a full-blown public relations disaster.

    The time to address a concern is when it initially arises, not provide excuses to engage in hand-waving when DoJ OPR arrives.

    The public deserves better. And the world expects much more.

    It's called leadership.