Casner & Edwards

Client Alert: The Value of Independent Investigations During the COVID-19 Crisis

By: Julie R. Bryan, Edward V. Colbert III, Scott Harshbarger, and Renee Inomata

The coronavirus pandemic (COVID-19) continues to escalate, causing enormous personal and economic losses, taking a huge toll on every institution and community, with massive  unemployment and an untold amount of business and institutional distress. As leaders in the public, non-profit and private sectors look ahead to the remedial work that will be needed to implement economic recovery and restore the health and safety of Americans, there will be important inquiries into why our country was ill-prepared to contain the spread of the virus, or minimize the human and economic devastation it caused.       

Facts that help guide decision-makers  

There will undoubtedly be substantial regulatory, enforcement, and media investigations into this crisis, which will be challenging to resolve. Perhaps, one of the more efficient and effective ways for public, non-profit and private institutions, companies and leaders to answer these questions may well be through independent investigations, as a primary or supplemental tool. These are investigations undertaken by outside, unbiased, professionally trained investigators with no mission other than to discover the facts that will enable leaders to identify any missteps and to formulate, based thereon, remedial plans going forward and ways to avoid similar problems in the future. Whether public or private, investigations the main goal is finding the facts so decision-makers can act accordingly. That is why this may be a particularly valuable tool right now for public agencies, as well as non-profit and corporate boards, to be considering as we begin to get to the other side of this pandemic.

In addition, we are dealing now with decisions being made, often with incomplete information in real time, which may well be subject to critique or review in different environments and contexts. The genius of the independent investigation is that it offers a way for any institution or leader to “know the facts” and make decisions and responses accordingly, and to prepare defenses, remedial plans, communications strategies, and lessons learned that enable them to survive.

Objective truth gathering

Although law enforcement and government regulators will undoubtedly play a role in the most egregious cases of potential malfeasance, neither law enforcement, nor internal corporate investigations, is always able to provide the level of truth-gathering that an external independent investigation can achieve. Investigations by law enforcement are designed to find legal violations, civil or criminal, while in-house investigations (often conducted by in-house lawyers, compliance/ethics officers, existing outside counsel, or HR departments) can be influenced by, or perceived as, a desire to limit exposure to lawsuits. Both forms of investigations frequently lead witnesses to become reluctant to participate or to offer less than candid testimony. Conversely, independent investigators can offer anonymity and confidentiality to witnesses who may otherwise be reluctant to identify themselves or participate in the process. 

Helping to answer tough COVID-19 questions

In recent years, government officials, business and institutional leaders, and boards of directors, have begun to recognize the value of independent investigations when faced with highly publicized controversies and tragedies, such as are now occurring repeatedly as a result of the COVID-19 crisis. During this pandemic, many questions have arisen such as:

  • What caused the disproportionate spread of the virus and losses of life in nursing homes and assisted living facilities ?
  • Have public funds been awarded appropriately by public agencies to provide financial relief to individuals and businesses during the crisis?
  • Have public funds been spent according to the requirements of public programs?
  • Have employers treated their employees fairly and in accordance with wage and employment laws during the crisis?
  • Have higher educational institutions charged students and their families with appropriate amounts for the reduced learning environments they provided during the crisis?
  • Have suppliers of food, medicine and other necessities and products taken advantage of consumers during the crisis?

These and many other questions related to allocating responsibility and demanding accountability for a variety of identifiable adverse human, financial, economic, employment, and institutional actions or omissions will be asked, and will continue to be asked as the crisis becomes more extended and widespread, and especially as the country seeks to move back to whatever the new normal will be. Finding the answers will be essential for governments, institutions and businesses, which have suffered huge losses of human and financial capital, and will be required to start up again and to attempt to  build in systems to minimize or mitigate the likelihood of a repeat in the future.   

Independent investigations provide an evidence-based, best practices approach to finding critical answers, reporting them to the appropriate stakeholders (e.g., government regulators, business/educational/non-profit leaders, the public at large), and helping develop a plan going forward.  

About Casner & Edwards’ Independent Investigations Group

Casner & Edwards’ Independent Investigations Group provides thorough and efficient investigative work for private schools, colleges and universities, nonprofit organizations, private and public employers, and individuals. Our attorneys have been retained to look into a myriad of issues, including allegations of government corruption or ethical violations, patterns of misconduct in executive and judicial offices, institutional abuse by hospital professionals and staff, faculty-student and student-on-student sexual assaults in secondary schools and colleges, harassment and discrimination in the workplace, to name a few. 

Illustrating our frontline experience in this area, we count within our ranks a former Massachusetts Attorney General and District Attorney, a former Assistant Attorney General, a former Senior Special Agent for the Department of Justice, and other attorneys with law enforcement experience. We also have a Certificate Holder form the Association of Workplace Investigators and an ATIXA-certified Civil Rights Investigator. Leveraging this public sector background, we maintain a nationwide network of contacts in federal and state government, and know how to cut through red tape.

For more information, please contact:

Julie R. Bryan, Partner

Edward V. Colbert III, Partner, Former Massachusetts Assistant Attorney General

Scott Harshbarger, Counsel, Former Massachusetts Attorney General

Renee Inomata, Partner

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