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Internal Reporting and Investigative Lessons from Star Trek: The Conscience of the King

Last month, I wrote a blog post on the tone at the top, exemplified in Star Trek’s Original Series episode, Devil in the Dark. Based on the response, some passionate Star Trek fans are out there. I decided to write a series of blog posts exploring Star Trek: The Original Series episodes as guides to the Hallmarks of an Effective Compliance program set out in the FCPA Resources Guide, 2nd edition. Today, I will continue my two-week series by looking at the following Hallmarks of an Effective Compliance Program laid out by the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) in the FCPA Resources Guide, 2nd edition. Today, we look at internal reporting and investigative lessons from The Conscience of the King.

The Conscience of the King centers around Captain Kirk’s investigation into the identity of Anton Karidian, the leader of a traveling theater troupe. Kirk suspects that Karidian is Kodos the Executioner, a tyrant responsible for the massacre on Tarsus IV, where Kirk is one of the few survivors. As the episode unfolds, Kirk must gather evidence to confirm his suspicions while navigating the moral complexities of justice and revenge.

Lesson 1. The Importance of Confidential Reporting

Confidential reporting mechanisms are essential for identifying and addressing potential compliance violations. You should develop a comprehensive, confidential reporting policy that outlines the process for submitting reports, the types of issues that can be reported, protections for whistleblowers, and investigation procedures. These policies must be communicated broadly to all employees and made easily accessible.

You should have multiple reporting channels from there, such as a dedicated hotline, an online submission form, an email address, or in-person reporting to a compliance officer. Ensure all channels are communicated and easy for employees to access. Finally, consider using an independent third party to manage the reporting hotline for maximum confidentiality. They allow employees to report concerns without fear of retaliation, fostering a culture of transparency and accountability. Some of the mechanisms include anonymous reporting.

Lesson 2. Conduct Thorough Investigations

Effective investigations are crucial for verifying claims, gathering evidence, and determining appropriate action. Each compliance program should have a formal, standardized investigation process led by trained, impartial investigators. Your investigative protocol should outline evidence collection, interviews, and documentation guidelines. Investigations should be conducted impartially, ensuring that all parties are treated fairly and that conclusions are based on evidence rather than assumptions or biases. You must ensure that investigations are properly documented, with clear accountability for follow-up actions. You should provide regular progress updates to the reporting party while maintaining confidentiality.

Kirk’s evidence gathering illustrates these principles in the episode, as he seeks out individuals who might recognize Karidian as Kodos, such as Dr. Leighton, who was also a survivor of the Tarsus IV massacre. He balances suspicion with the need for concrete evidence before taking action. Kirk engages in human and forensic-based investigative tools when he devises a plan to observe Karidian’s reaction to hearing his voice from historical records of Kodos’s speeches, showcasing the importance of testing hypotheses to validate suspicions.

Lesson 3. Balancing Privacy and Justice

Investigations must balance the need for transparency with the privacy rights of those involved. Protecting confidentiality is essential to maintaining trust in the reporting process and ensuring fair outcomes. Every compliance function should have protocols to safeguard the confidentiality of all parties involved in an investigation, including the reporter, subject, and witnesses. This may include restricting access to sensitive information and ensuring secure storage of records. Finally, while maintaining confidentiality, organizations should communicate the outcomes of investigations to relevant stakeholders, reinforcing the organization’s commitment to transparency and accountability.

As a compliance professional, balancing the principles of privacy and justice during an internal investigation can be a delicate challenge. Here are some key considerations and approaches to striking the right balance through both proportionality and necessity. This means collecting and retaining only the personal data that is strictly necessary and proportional to the specific investigation. Also, avoid excessive data gathering or prolonged retention that could be considered an unwarranted invasion of privacy.

Examples from The Conscience of the King include Kirk’s maintenance of secrecy by ensuring that information about the investigation is shared only with those who need to know, protecting the privacy of individuals involved, and preventing potential harm to the theater troupe if the suspicions prove unfounded. His tactful handling of sensitive information is an example of how crucial it is to limit access to private information to preserve the investigation’s integrity.

Lesson 4. Leadership’s Role in Fostering a Compliance Culture

Leadership plays a critical role in establishing and maintaining a culture of compliance. Leaders must demonstrate a commitment to ethical behavior and support implementing compliance initiatives. A corporate compliance function should encourage business leadership, the C-Suite, and the Board of Directors to consistently reinforce the importance of speaking up and the organization’s non-retaliation commitment. You should also celebrate employees who come forward with reports that lead to positive change.

Business leaders should model ethical behavior and demonstrate a commitment to compliance through their actions and decisions. This sets a positive example for employees and reinforces the organization’s values. Your executives must actively support compliance initiatives, including developing and promoting reporting mechanisms and investigation procedures. Kirk exemplifies ethical leadership by prioritizing justice and integrity over personal vendetta. He uses his authority responsibly to pursue the truth while protecting his crew and the accused.

Lesson 5. Addressing the Human Element

Compliance programs must account for the human element, recognizing that emotions and personal biases can influence reporting and investigations. Programs should be designed to minimize these influences and ensure objective outcomes. Your compliance function should provide training to help employees recognize and manage emotions and biases that may impact their decision-making. You need to, as much as possible, move towards evidence- and data-based objective decision-making. This includes professional skepticism and developing processes and tools to facilitate objective decision-making, such as checklists or decision trees, to guide investigators and reduce the influence of personal biases.

“The Conscience of the King” offers valuable lessons for compliance professionals on the importance of confidential reporting and thorough investigations. By implementing these lessons, organizations can enhance compliance programs, foster a culture of transparency and accountability, and effectively manage risks. Incorporating these elements into your compliance strategy can help ensure that your organization is prepared to navigate the complexities of today’s regulatory environment while upholding the highest ethical standards. As Captain Kirk demonstrated, pursuing truth and justice requires vigilance, integrity, and a commitment to doing what is right.

Join us tomorrow as we consider the lessons on financial incentives and disciplinary measures from the Star Trek episode Mirror Mirror.

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Compliance Tip of the Day

Compliance Tip of the Day: The Importance of Triage

Welcome to “Compliance Tip of the Day,” the podcast where we bring you daily insights and practical advice on navigating the ever-evolving landscape of compliance and regulatory requirements.

Whether you’re a seasoned compliance professional or just starting your journey, our aim is to provide you with bite-sized, actionable tips to help you stay on top of your compliance game.

Join us as we explore the latest industry trends, share best practices, and demystify complex compliance issues to keep your organization on the right side of the law. Tune in daily for your dose of compliance wisdom, and let’s make compliance a little less daunting, one tip at a time.

In this episode, we look at the importance of triage in your overall investigative protocol.

For more information on the Ethico ROI Calculator and a free White Paper on the ROI of Compliance, click here.

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31 Days to More Effective Compliance Programs

31 Days to a More Effective Compliance Program – Day 23 – The Investigation Protocol

Your company should have a detailed written procedure for handling any complaint or allegation of bribery or corruption, regardless of the means through which it is communicated. The mechanism could include the internal company hotline, anonymous tips, or a report directly from the business unit involved. You can make the decision on whether or not to investigate in consultation with other groups, such as the Audit Committee of the Board of Directors or the Legal Department. The head of the business unit in which the claim arose may also be notified that an allegation has been made and that the Compliance Department will be handling the matter on a go-forward basis. Through the use of such a detailed written procedure, you can work to ensure there is complete transparency on the rights and obligations of all parties once an allegation is made. This allows the compliance team to have not only the flexibility but also the responsibility to deal with such matters, from which it can best assess and then decide on how to manage the matter.

Indeed, there are a variety of factors around giving credit to corporate investigations, including: Did management, the board, or committees consisting solely of outside directors oversee the review? Did company employees or outside parties perform the review? If outside persons, have they done other work for the company? If the review was conducted by outside counsel, had management previously engaged such counsel? How long ago was the firm’s last representation of the company? How often has the law firm represented the company? How much in legal fees has the company paid the firm?

Three key takeaways:

1. A written protocol, created before an investigation, is a key starting point.

2. Create specific steps to follow so there will be full transparency and documentation going forward.

3. Consistency in approach is critical.

For more information on Ethico and a free White Paper on top compliance issues in 2024, click here.

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31 Days to More Effective Compliance Programs

Day 19 – Your Investigation Protocol

After the internal report comes in and you have properly triaged the matter, you need to scope out and investigate it promptly, thoroughly, and with competent personnel. In the 2020 Update, provided these series of questions about your internal investigations:

Properly Scoped Investigations by Qualified Personnel – How does the company determine which complaints or red flags merit further investigation? How does the company ensure that investigations are properly scoped? What steps does the company take to ensure investigations are independent, objective, appropriately conducted, and properly documented? How does the company determine who should conduct an investigation, and who makes that determination?

 Investigation Response – Does the company apply timing metrics to ensure responsiveness? Does the company have a process for monitoring the outcome of investigations and ensuring accountability for the response to any findings or recommendations?

 Resources and Tracking of Results – Are the reporting and investigating mechanisms sufficiently funded? How has the company collected, tracked, analyzed, and used information from its reporting mechanisms? Does the company periodically analyze the reports or investigation findings for patterns of misconduct or other red flags for compliance weaknesses? Does the company periodically test the hotline’s effectiveness, for example, by tracking a report from start to finish?

In a presentation, Jay Martin, retired Chief Compliance Officer at Baker Hughes, and Jacki Trevino, Senior Director of Advisory Services Group at SAI Global Limited, discussed the specifics of an investigation protocol. It consisted of 1) opening and categorizing the case; 2) planning the investigation; 3) executing the investigation plan; 4) determining appropriate follow-up, and 5) closing the case. If you follow this basic protocol, you should be able to work through most investigations in a clear, concise, and cost-effective manner. Furthermore, you should have a report at the end of the day which should stand up to later scrutiny if a regulator comes looking. Finally, you will be able to “Document, Document, and Document” not only the steps you took but why and the outcome obtained.

Three key takeaways:

  1. A written protocol, created before an investigation, is a key starting point.
  2. Create specific steps to follow so there will be full transparency and documentation going forward.
  3. Consistency in approach is critical.
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FCPA Compliance Report

Investigative Protocols After the Monaco Memo

In this episode, I take things in a different direction today as I post the recording of a webinar I recently put on for i-Sight Software Solutions. In this presentation, I detail what the Monaco Memo means your corporate investigative protocol.

Some of the highlights include:

·      What changes did the Monaco Memo portend for corporate investigative protocols?

·      What unintended consequence did the Russian invasion of Ukraine bring to the public view of whistleblowers?

·      Why is triage a key aspect of your investigative protocol?

·      Why should you create an investigative protocol long before an investigation becomes needed?

·      How do you create an investigative protocol to keep key decision makers in the loop?

 Resources

For a White Paper on these issues, click here.

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Innovation in Compliance

Corporate Case Management in the Era of the DoJ’s Monaco Memo: Episode 3 -Ethical Investigations

Welcome to a special podcast series, Corporate Case Management in the Era of the DoJ’s Monaco Memo, sponsored by i-Sight Software Solutions. Over this five-part podcast series, I speak with Jakub Ficner, Director of Partnership Development at i-Sight Software. This series considers how the Monaco Doctrine and Monaco Memo have impacted compliance in several key areas. In this Part 3, we look at ethical investigations and how to allow your organization to meet the strictures of the Monaco Memo. Highlights include:

  • How did the Monaco Memo impact investigations?
  • The importance of keeping the reporter informed.
  • Why consistency and transparency are key aspects of the investigative process.
  • Creating an audit trail is in your investigation protocol.

For more information, check out i-Sight here.