Many of us in white collar practice find ourselves involved in internal investigations – either because we conduct them as part of our practice; we represent corporate clients and assist them by selecting independent counsel; we represent individuals during an ongoing internal investigation; or we represent individuals in criminal investigations while internal investigations are ongoing. Last week’s fining of Penn State University for violations of the Clery Act, which relied in part on the Freeh internal investigation report, illustrated the complexities that can arise when there are multiple ongoing investigations. This article explores some of those dynamics and pitfalls that can arise for those conducting investigations or representing individuals during multiple ongoing investigations.
On November 3, 2016, the Administrative Actions and Appeals Service group of the United States Department of Education (“the Department”) issued fines of $2,397,500 against Penn State University for failure to comply with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crimes Statistics Act (“Clery Act”). The Department’s review was initiated by the criminal charges filed against Jerry Sandusky by the Pennsylvania Office of Attorney General. While the Sandusky charges were the impetus for the review, the Department’s determination went far beyond the criminal investigation and found widespread violations of the Clery Act for failure to issue warnings and notifications, classify incidents, disclose crime statistics, maintain accurate daily crime logs, and failure to comply with the Drug-Free Schools and Communities.
Relevant Dates
November 4, 2011. Charges initiated against Sandusky and Penn State officials with respect to the sexual assault of minors and failure to report sexual assault.
November 9, 2011. Department of Education announced its review and commenced its investigation on November 28, 2011.
November 21, 2011. Freeh, Sporkin & Sullivan, LLP retained by Penn State University to conduct an internal investigation.
June 22, 2012. Sandusky convicted of multiple counts of sexual assault.
July 12, 2012. Freeh Report issued.
November 1, 2012. Charges against the former president of Penn State University filed, along with additional charges against previously charged Penn State administrators.
Thus, during significant periods of time, there were three separate investigations involving Penn State University ongoing – by the Pennsylvania Office of Attorney General, the Freeh Group, and the Department of Education. Representatives from Freeh, Sporkin & Sullivan cooperated with the Department of Education and similarly exchanged information with the Office of Attorney General. The results of the internal investigation were also used as a basis to later impeach the University in the Department’s Review Determination. The Department concluded:
The Freeh Report found that pursuant to the Clery Act this incident should have been contemporaneously reported to the PSUPD and should have been recorded in the crime log. The Freeh Report concluded that the University violated the Clery Act by failing to record the incident in the crime log. As with other Freeh Report findings, the University publicly accepted the finding and acknowledged that it had violated the Clery Act in relation to the NCAA investigation of this matter. However, once again, the University in its response to the Department’s PRR effectively contradicted its earlier acceptance of this Clery Act violation and argued that even if the 2001 Sandusky incident was a Clery-reportable crime, the University was only obligated to report the occurrence in its annual crime statistics and not the daily crime log.
As the Penn State matters illustrate, the results of an internal investigation can have wide-ranging and often unanticipated implications and uses. The following seven (7) practices serve to preserve the integrity of an internal investigation and protect practitioners from unintended or unanticipated fallout from an investigation.
- Establish with clarity who you represent.
- Establish a protocol for communications. Who will be kept apprised of the investigation or have access to documents? Who will have access to the investigator?
- Inevitably new allegations or new issues will arise during an investigation. Seek specific approval to explore new areas from the client.
- Discuss privilege with your client up front. Discuss the product of the investigation and whether public disclosure is anticipated.
- Determine who will be permitted to participate in interviews, ex. Government investigators, individual counsel, etc.
- Establish protocol to be followed with each interview relating to Upjohn and other required notifications.
- Discuss and establish protocol for the maintenance of the investigative file and supporting documentation or evidence.
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