Not Just the Hotline

Prior to our Chapter’s last scheduled live training event, I was invited as a presenter to an orientation session for a group of employees serving as staff to a local government fraud, waste and abuse hotline. Anonymous communications, often called “tips,” may take various forms, including a posted letter, telephone call, fax, or e-mail. Long gone are the days when any governmental or private organization receiving such a communication would feel comfortable disregarding it. In today’s environment, such communications are almost always taken seriously, and significant efforts are made to resolve every credible allegation. By their very nature, such investigations are triggered suddenly and generally require a prompt and decisive response, even if only to establish that the allegations are unfounded or purely mischievous. The allegations may be in the form of general statements or they may be very specific, identifying names, documents, situations, transactions, or issues. From the CFE’s or forensic investigator’s perspective, no matter what form they take or how they are received, anonymous communications addressed to the client can pose challenging investigative issues in themselves whose complexity is often under-estimated.

The initiators of such tips can be motivated by a variety of factors, which range from the possibility of monetary gain (substantial monetary recovery is available to whistleblowers under the U.S. False Claims Act), to moral outrage, to genuine concern over an issue or simply from the desire of a disgruntled employee to air an issue or undermine a colleague. Adding to the complication, legislation such as Sarbanes-Oxley and the raft of on-going private and governmental scandals, the increased scrutiny of health care providers and of defense contractors have all served to raise public awareness of whistle-blower programs specifically and of the importance of anonymous reporting mechanisms in general.

With hotlines now so ubiquitous, it’s equally important for investigators to be aware that anonymous tips come in not only to formal public hotlines but in a wide variety of forms and through many channels; such communications can come addressed to various individuals and groups within the company or to outside entities, to government agencies, and even via outside news agencies. Typical recipients within the company of non-hotline tips can be expected to be legal counsel, audit committee members, senior management, department supervisors, human resources managers and the compliance or ethics officer. A tip may take the form of a typical business letter addressed to the company, an e-mail (usually from a nontraceable account), or an official internal complaint. It may also duplicate tips submitted to news agencies, competitors, web site postings, chat rooms, or government agencies. It may also be a message to an internal ethics hotline phone number. Whatever form it takes, a tip may contain allegations that, while factually correct at its core, may also include embellishments or inaccurate information, wildly emotional allegations, or poor grammar. Further, the communication structure of the tip may be disorganized, repetitive, display unprioritized thoughts and mix key issues with irrelevant matters and unsupported subjective opinions. In other cases, while the tip’s information about specific issues may not be correct, it may contain a grain of truth or may identify elements of several unrelated but potentially troubling issues.

In some situations, the allegations aired in an anonymous tip may be known within the company and labeled as rumors or gossip. Some whistle-blowers are neither gossip hounds nor disgruntled employees but, rather, frustrated employees who have tried to engage management about a problem and have gone unheard. Only then do they file a complaint by sending a letter or an e-mail or by making a phone call.  While one should never leap to a specific conclusion upon receipt of an anonymous communication, inaction is never a recommended option. One of the dangers of ignoring an anonymous tip that wasn’t initially received via the hotline is that a situation that can be satisfactorily addressed with prompt action at lower levels or locally within the organization may become elevated to higher levels or to third parties and even to regulatory bodies outside the entity because the whistle-blower believes the communication has been side-lined or shunted aside. This can have damaging consequences for an organization’s reputation and brands if the allegations become public or attract media attention and a cover-up appears to have occurred, however well-intentioned the organization may have been. Ignoring an anonymous tip also may negatively impact staff morale and motivation, if suspicions of impropriety are widespread among staff and it appears that the employer is uninterested or doing nothing to rectify the situation. Ultimately, management may leave itself open to criticism or perhaps the danger of regulatory censure or legal action by stakeholders or authorities if it cannot demonstrate that it has given due consideration to the issues raised in an anonymous communication.

Once notified by a client of the receipt of an anonymous tip, the CFE or forensic accounting investigator should obtain an understanding of all the circumstances of that receipt. While the circumstances on the surface may appear unremarkable and trivial, that information is often a key factor in determining the best approach to dealing with a tip and, more broadly, often provides clues that are helpful in other areas. Initial facts and circumstances to be established include:

• How? This refers to how the information was conveyed—for example, whether it was in a letter, phone call, or e-mail and whether the letter was handwritten or typed. Additionally, the forensic accounting investigator seeks to determine whether the message includes copies of corporate documents or references to specific documents and whether the tip is anonymous, refers to individuals, or is signed.
• When? This includes establishing the date on which the message was received by the entity, the date of the tip, and in the case of a letter, the postmark date and postmark location.
• Where? This involves establishing where the tip was sent from, be it a post office, overseas, a private residence, within the office, a sender’s fax number, or an e-mail account.
• Who? To whom was the tip sent? Was it a general reference such as “To whom it may concern”? A specific individual? A department such as the head office or internal audit? The president’s office? The press? A competitor? Sometimes an anonymous notification will indicate that another entity has been copied on the document; this requires verification. Always consider the possibility that the tip may have been sent to the auditor and/or to the U.S. Securities and Exchange Commission.
• What? This refers to understanding the allegations and organizing them by issue. Often, a tip will contain many allegations that are variations on the same issue or that link to a common issue. For this reason, it is often helpful to formally summarize in writing the tip by issues and related sub-issues. Does the information in the tip contain information that may be known only to a certain location or department? If so, that may point to a group of individuals or former employees as the source of the tip.
• Why? What is the possible motivation for the tip? Issues with misreporting financial information? Ethical decisions? Disgruntled employee? Former employee airing grievances?

For many organizations, whistle-blower communications have become almost daily phenomena. But many of the most serious allegations don’t arrive via a hotline.  This is largely because in the wake of corporate scandals, lawmakers and ethics authorities are responding to public concern by encouraging employee monitoring of corporate ethics and affording some statutory protections for whistle-blowers. Dealing with the unexpected anonymous tip that triggers a CFE conducted investigation can be a challenging matter, even for the most seasoned investigator. Objective analysis and the strategic approach taken by professionals skilled in corporate investigations can assist clients in successfully addressing issues that may have serious legal and financial implications. Protection of employees from retaliatory action and the
company’s need to decide whether and to whom to disclose information are among the many issues created by the receipt of anonymous tips.  For the CFE, the key to resolving cases of anonymous tips usually involves a detailed examination of copious amounts of data obtained from various sources such as interviews, public records searches, data mining, hard-copy document review, and electronic discovery. A careful, experience-based investigative strategy is imperative to address the circumstances surrounding the transmittal and receipt of any anonymous tip and to tackle its allegations prudently and thoroughly.

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