Investigative Interviewing: Psychology, Method and Practice
Page 9
36 ◾ Investigative Interviewing
8.
The Hallcrest Report II estimates that the average private investigation firm employs something less than 1.5 individuals. The California Department of Consumer Affairs, which regulates the private investigation industry in California, estimates that the average investigation firm in that state employs 1.4 individuals. Under the department’s supervision are approximately 18,000 licensed private investigators and/or agencies.
9. Principally derived from Undercover Investigations in the Workplace, 1st ed. (Woburn, MA: Butterworth-Heinemann, 2000), 56, and the author’s other works in the field of workplace investigations in which he refers to them as the universal objectives.
10. The astute reader will likely note that the rules of civil procedure (in their various forms) provide other methods of investigation as well. For example, in the course of litigation, routine discovery rules allow for mandatory depositions and the production of documents. Because the rules of civil procedure require a plaintiff to have performed an investigation prior to initiation of his suit, I have chosen to exclude the investigative tools available to litigants from my list of investigative methods.
11. M. W. Browne, The New York Times, 1998; David Fisher, Rules of Thumb for Scientists and Engineers (Cambridge, MA: Elsevier Science & Technology), 1991; and Robert Matthews, New Scientist, 1999.
12. Ferraro, E. F., Undercover Investigations in the Workplace, 1st ed. (Woburn, MA: Butterworth-Heinemann, 2000), 27.
13. In Cotran v. Rollins Hudig Hall International, Inc., 1998 Cal. LEXIS 1 (January 5, 1998), the California Supreme Court joined the majority of other jurisdictions in holding that good cause existed for terminating an employee for misconduct if an employer had a reasonable and good faith belief that the employee engaged in misconduct. It was ruled that the employer does not have to convince the court or jury that the employee in fact committed the misconduct, only that the employer honestly believed that the employee engaged in misconduct based upon substantial evidence obtained through an adequate investigation that included a fair opportunity for the employee to respond to the charges. The Court further defined the term “good cause” as a “reasoned conclusion … supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed
misconduct and a chance for the employee to respond.” So, while the employees of employers in the private sector do not enjoy constitutionally protected due process rights, the California Supreme Court holds that an accused employee indeed has
the right to respond.
14. For the purposes of our hypothetical, we will assume that the fact finder has eliminated the possibility that someone else had access to the subject’s computer or was able to place files on it.
15. Ibid.
Chapter 2
The Differences
between the Public
and Private Sector
Key learning points:
1.
Public sector law enforcement’s principal mission is the enforcement of public law.
2.
An employee’s refusal to cooperate in her employer’s investigation is action-
able. Under some circumstances, the termination of uncooperative individu-
als can be justified merely on their refusal to participate and answer a fact
finder’s questions. The subject’s lack of cooperation is called insubordination.
3.
Among other things, due process includes: the right of the accused to know
the offense(s) and crime(s) of which one is suspected, the right to view and
examine the government’s evidence, the right to face one’s accusers and
examine them as well as any and all witnesses, the right to competent repre-
sentation, and protection against self-incrimination.
4.
Regardless of the nature of the suspected offense, in the private sector employees under investigation by their employer have no due process rights.
5.
Entrapment is not a crime, it is a criminal defense. The theory behind the
defense suggests that an otherwise law-abiding citizen would not have com-
mitted the crime in question had not the government or its agent improperly induced him. Thus, only the government or its agents can entrapment.
6.
Despite its usefulness for other purposes, an employer needs neither to know
motive nor consider it when deciding discipline.
37
38 ◾ Investigative Interviewing
7.
When deploying new technology, always attempt to identify exploitable
vulnerabilities and address them before they are found by the criminally
minded employee.
“Deceptive interviewers usually get deceptive answers.”
E .F. Ferraro
2.1 An Historical Perspective
My grandfather was a homicide detective in New York for 30 years. He retired in 1952. During his career, he investigated unimaginable crimes and dealt with many horrible human beings. Like many retired law enforcement officers of his time, he entered the private sector after he left the “job.” He quickly found employment at a large racetrack as a security officer and ended up working there for many years. As a small child, I remember him reminiscing and telling stories of police chases and shoot-outs with gangsters. But, of all his work, he loved most working at the track.
I have since learned that he and retirees like him were the forefathers of today’s industrial security. He and his generation pioneered the private security frontier and were among the first of those we call today security professionals. Interestingly, just two years after his first retirement, the American Society of Industrial Security was founded. Today the society has been renamed, ASIS International and boosts
almost 44,000 members worldwide. And, like ASIS, the private security industry
has come a very long way.
The most significant change in private security is that it has become a true
profession. No longer is it a second career option or reserved for just those
coming out of law enforcement. It has become a profession in every regard.
Secondary schools and universities now offer degrees in security management
and even loss prevention. The profession has moved to accrediting and cer-
tifying select members who qualify. Designations, such as Board Certified
in Security Management (CPP) and Physical Security Professional (PSP), are
almost necessities for those in executive security management. Each segment
of the profession offers its own designations and publishes its own periodical
or journal. The men and women, who make up the profession, write, publish,
and subject their work to peer review. These professionals meet, exchange ideas, and offer the results of their research to anyone willing to study it. It has been a marvelous and miraculous transition and its impact on business and society
has been significant.
Today nearly every organization, public and private of any measurable size,
boasts at least one security management position. Larger organizations have security or loss prevention departments and cutting-edge global enterprises have designated
The Differences between the Public and Private Sector ◾ 39
chief security officers to protect their assets and employees. These CSOs typically report directly to the chief executive or chairman and enjoy all of the privileges and responsibilities of their counterparts at the chief executive level. Never in the history of private security has the security professional experienced such recognition and importance.
This evolution, however, has come with a price. No longer can the successful
law enforcement professional haplessly migrate from the public to the private sector after retirement as my grandfather did. Like
the public sector, the private sector now demands more of its professionals and the men and women who manage them.
Even advanced degrees and robust résumés are not enough. In order to transition from the public to private sector successfully, the individual needs an acute appreciation for business; not just budgets, finance, and personnel management, but a deep understanding of business and its purpose. That purpose, of course, is to make money and create wealth. Money is not a dirty word and the creation of wealth is a worthy endeavor. The ability to create and accumulate wealth is the cornerstone of a free-market system. While money is the oil that lubricates the system, it is the accumulation of wealth that provides our capital markets and makes the free enterprise, as we know it, possible. The mechanisms and apparatus that support it are not the same in the public sector.
2.2 Mission
Of the many differences separating the public and private sectors, foremost are their missions. Public sector law enforcement’s principal mission is the enforcement of public law. Over the past two decades, this mission has been expanded to include administration of public safety, crime prevention, substance abuse awareness, community service, and even revenue generation. However, job no. 1 is to enforce public law. The principal vehicle used in pursuit of this mission is street enforcement and criminal investigations. Yes, law enforcement both on the local and federal level does other important things. Yes, they make other significant contributions in other ways. But, when one peels back the skin of the onion, one will find at the core street enforcement and criminal investigations. With all due respect to the brave men and women in blue, what cops do best is put lawbreakers in jail. Compare that activity and that which supports it to the purpose of business as I have described for you in the preceding section. Though not diametrically opposed, the principal missions of these important endeavors are vastly different. See for yourself. Look now at your organization’s mission statement or that of one of your customers. Does it contain the words public safety, law enforcement, criminal justice, or prosecution?
Is it your organization’s mission to prosecute its employees to the fullest extent of the law? Is it your customer’s mission to produce capital appreciation or enforce public law?
40 ◾ Investigative Interviewing
Tip: Although private sector investigations frequently investigate potential violations of the law, private sector investigators rarely have law enforcement powers.
As one drills into the private sector organization and comes upon the secu-
rity professional, we find that his mission is also vastly different from that of law enforcement. So different are the two that I oppose the use of the term counterpart in law enforcement when describing the function of the security professional. The law enforcement officer does not have a counterpart in the private sector. Even security officers are not responsible for the enforcement of public law. Their job, and important it is, is to observe and report. The corporate security professional is not the “company cop.” Unfortunately for them and their organizations, many private sector security professionals see themselves as just that. These often very bright and capable people see their position in the private sector as an extension of their former roles in law enforcement. They intentionally retain the demeanor—that somewhat
inflated self-confidence and that harsh cop-speak vernacular they cultivated while on the job. Others in their organization call this collective behavior the “cop mentality.” Because of it, they don’t see the “company cop” as a peer. They perceive him or her as a corporate outsider and necessary nuisance. Tragically, many corporate security professionals relish this image. You know the type. You’ve met them and so have the executives in your organization—those executives who evaluate your
performance and measure your contribution to the organization. If they perceive you as the company cop, that is precisely how they will treat you and, very unfortunately, pay you. It’s tragic and it’s unnecessary.
Trap: Those who talk and act like a company cop will be treated like one. Instead, talk and act like the people in whose hands your career rests.
By confusing missions, however, the corporate security professional does more
than damage his career, he damages his organization. While fixated on enforcing public law and putting workplace transgressors in jail, this type of security professional overlooks his organization’s mission and purpose. He tends to forget that prosecuting dishonest employees contributes nothing to the organization’s balance sheet and shareholder value. In fact, in some cases, the effect can be quite the opposite. Following is an excellent example.
My client, the corporate director of security for a nationwide auto parts dis-
tributor, was a retired FBI agent. A nice enough fellow; he was soft spoken, professional, and principled. He also hated crime and those who committed it. His
purpose in life was to put lawbreakers in jail. On numerous occasions, I proposed we pursue restitution in lieu of prosecution. He would hear nothing of it. Then one
The Differences between the Public and Private Sector ◾ 41
day, during an undercover investigation my firm was conducting for him, he called and said he had just shut the case down. He said he was at the target facility and that the police were en route and upon their arrival the guilty would be arrested.
His plan was defective and I told him so. First, on what grounds might a misde-
meanor offender be arrested—or, for that matter, on what grounds might one be
arrested for overstaying his break? Second, absent proper investigative interviews, how might admissions be obtained? In other words, on what grounds would discipline be based? He retorted that those prosecuted would be disciplined and that arrest alone was cause for termination. The line went dead.
Sure enough, I later learned that the police showed up, lights flashing, and sirens screaming. Chaos ensued. Panicked employees leapt from windows, hurled themselves over fences, and ran in every direction. The fact that many were undocumented workers didn’t help the situation either. The police soon got the upper hand and took away those they had caught. Hours later, an angry police chief released the arrestees and apologized to each as they left his custody. The chief knew very well that his officers had made a terrible mistake. The arrests were unlawful, because probable cause did not exist. There was no proper justification for the arrest and search of these people. But, the security director lost more than face. Shortly after the spectacle, the former arrestees sued their employer. The case was later settled and never went to jury.
The settlement remains confidential, but I do know that the former FBI agent and his second-in-command now work elsewhere.
Trap: Despite popular belief, employee prosecution is neither cost-effective nor a deterrent. In most instances, better results can be achieved by pursuing the organization’s mission.
2.3 Advantages of the Public Sector
The second most significant difference separating the public and private sector is the enormous power and authority the public sector possesses. Law enforcement
and its companion, the criminal justice system, have at their disposal, mechanisms and tools out of reach of those in the private sector. Let’s briefly examine a few.
2.3.1 Powers of Arrest
Designated individuals in law enforcement and the criminal justice system have the incredible power of arrest. Unlike citizens (corporate security professionals among them), the police, district attorneys, and judges can under a host of circumstances arrest people, subject them to custodial interrogations, and even incarcerate them. By fulfil ing a few simple requirements and with rather minimal justification, the public
42 ◾ Investigative Interviewing
sector has the power to detain, forcibly question, and interrogate. In venues such as a properly convened court, the failure to answer a question or cooperate is a crime. The crime is cal ed contempt of court and can be punished with incarceration. There is no equivalent in the
private sector. Citizens can, under very special circumstances, make an arrest, but in doing so incur significant liability. To forcibly question or hold another against his will constitutes false imprisonment and is civil y actionable.
2.3.2 Search and Seizure
The public sector also has at its disposal the power to search people and their belongings and seize property. The law permits one’s person, property, and papers be searched and/or seized by the government. Although the citizenry enjoys constitutional protections under the Fourth Amendment of the U.S. Constitution and elsewhere against abuse of this power, it is a critical tool in the conduct of criminal investigations and the enforcement of public law. The closest thing to it in the private sector is an employer’s search policy. Workplace searches of desks, lockers, and other work areas are permissible only where an employee does not have a reasonable expectation of privacy. The employer can substantially reduce the expectation of privacy by advising employees that such areas are subject to inspection, with or without notice; restricting private use of these areas by issuing its own locks and retaining duplicate keys; and by crafting policies that limit worker’s expectation of privacy and permit searches under any circumstances.
Regardless, the powers available to the employer pale compared to those of the
government. The ability to search and seize property in the spirit of a criminal investigation or inquiry creates a huge differentiator between the public and private sector.
2.3.3 Grand Jury and Special Inquiries
The ability to convene a grand jury and forcibly extract testimony, absent representation of even the suspect, is unmatched in the private sector.1 During such proceedings, a citizen’s failure to cooperate may be ruled contempt and her failure to tell the truth may be deemed perjury. Although employees have an affirmative duty to cooperate in an organizationally sanctioned investigation, an employee, in fact, may refuse to cooperate (and face possible discipline) and has no obligation (other than an ethical one) to tell the truth.
Tip: An employee’s refusal to cooperate in her employer’s investigation is actionable. Under some circumstances, the termination of uncooperative individuals can be justified merely on their refusal to participate and answer a fact finder’s questions. The subject’s lack of cooperation is called insubordination.