Agency inspector general offices investigate complaints from persons in the federal government ecosystem who complain about waste, fraud, abuse of authority; violations of law, regulations or policies; or danger to public health or safety; and, suffer some type of adverse employment action for doing so.  

Since the enormous Department of Defense (DoD) gets so many of these types of complaints, its Inspector General’s Office has an office specifically designated to deal with this: Whistleblower Reprisal Investigations Directorate (WRI).

WRI is supposed to conclude whistleblower investigations within 120 days. Not too long ago, the Government Accountability Office (GAO) decided to review DoD IG to see if it was getting them done within 120 days as the law requires. GAO discovered that DoD IG was blowing the 120 day deadline, by taking on average about 285 days to complete these investigations.

In response, DoD IG has undertaken a couple of measures to shorten the timeline for its investigations:

First, it increased the number of employees in the WRI office. More government investigators, in my opinion, begets more government investigations.  

Second, in September 2017 DoD IG started an alternative dispute resolution (ADR) process for these types of complaints. The process is supposed to resolve some of these complaints rather than having the lengthy and expensive IG process take place for every case.  

Now, lest all the government watchdog-types get concerned that this may just be a move to hide government waste, fraud, and abuse, remember complaints are of all shapes and sizes.  

Complaints made to any reporting system don’t all require investigative resources be expended in every case. So, in my opinion, the ADR process actually helps assure government resources are not wasted but rather are expended on serious matters.

Under the ADR process, a WRI/ADR attorney contacts the parties to see if they are interested in participating in ADR to resolve the concern. If so, the parties sign an agreement to participate in the ADR process and work in good faith to reach a settlement. Participants in the ADR process are entitled to have a “representative” assist them with the ADR process.

DoD makes clear that participating in the ADR process does not imply that participants are admitting guilt to a criminal, ethical, or regulatory violation; or even admitting to any type of wrongdoing.  However, please note that regardless of how the complaint about reprisal for raising concerns about waste, fraud, abuse of authority; violations of law etc. goes, the DoD IG will still have the right to investigate the waste, fraud, etc. that the complaint claims occurred that resulted in reprisal.

DoD is not a party to any resolution that is reached. Instead DoD’s role, through the ADR attorney, is to work with the parties to facilitate a settlement. The DoD ADR attorney will communicate with each party and relay offers to resolve back and forth between the parties. The DoD ADR attorney can also work with the parties to mediate so each side can present their position; and then they can try and resolve the complaint. The DoD attorneys assigned to facilitate settlement are very willing to talk with the parties about resolving the matter.

All communications that occur through the ADR process are confidential and are considered to be made for the purpose of settling the dispute. So, in most instances, these communications will be kept confidential and will likely not be admissible in future litigation. However, if the ADR attorney and the parties agree the communications can be disclosed. Disclosure will also occur if a court orders disclosure.

However, agreement to enter the ADR process and any written agreement settling the matter through the ADR process is not confidential. So, DoD reserves its right to disclose the settlement.

Unless the parties reach a written settlement of the matter, the parties are not bound by anything said or done in the mediation.  

If there is a written settlement, DoD OIG must approve it before the parties each sign the agreed settlement. In my experience, a settlement seems to me to mean that the contractor will, at the very least, compensate the whistleblower.

In its description of the ADR process, DoD shares its opinion that it may be a more expedited process for contractors than an IG investigation. I think DoD may be right. Contractors who learn from DoD IG that a whistleblower complaint has been filed against them and that DoD is willing to send the matter through the DoD ADR process may end up saving time, money and employee morale by going through the ADR process rather than waiting for DoD IG to investigate the whistleblower’s complaint. Time will tell.

Finally… remember the wise words of U.S. Navy Admiral Hyman G. Rickover, who was someone well familiar with the ways of DoD when trying to decide whether to take ADR or not:

“If you are going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won’t.” 

 

The intersection of law, business, criminal activity crime and ethics: why do some companies violate the law? what happens when they do? what is ethical? how do we get corporations to follow the law? can lawyers help and, if so, what is the lawyer’s role? Stay tuned, we’re going to address all of these issues and more in When the Writ Hits the Fan.
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