COMMENT DUE DATE:
June 3, 2019
DATE:
May 24, 2019
Stacy Bonic, OIG 405-522-2869
Dena Thayer, Programs Administrator 405-521-4326
Nancy Kelly, Policy Specialist 405-522-6703
RE:
Non-APA WF 19-C
The proposed policy is Non-APA . This proposal is not subject to Administrative Procedures Act
It is important that you provide your comments regarding the proposal to amend Oklahoma Department of Human Services (DHS) Regulations (REGS), Chapter 2. Administrative Components, Subchapter 7. Office of Inspector General.Comments are directed to STO.LegalServices.Policy@okdhs.org.
SUBJECT:DHSREGS
CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 7. Office of Inspector General
DHS:2-7-1 [AMENDED]
(WF 19-C)
SUMMARY:
DHS:2-7-1 is revised to: (1) revoke Internal affairs investigation goals; (2) amend language for clarity and consistency; (3) add language to further explain when the inspector general can submit a complaint for IIRC review, to explain procedure for an employee committing a criminal complaint, and to explain procedure for a circumstance to close a complaint after an OIG initial review; (4) revoke and add language to reflect current practices; and (5) add new language as needed.
SUBCHAPTER 7. OFFICE OF INSPECTOR GENERAL
DHS:2-7-1. Internal affairs investigations
Revised 3-24-146-3-19
(a) Purpose.The Office of Inspector General (OIG) is responsible for addressing complaints ofalleged fraud,and misconduct, orcomplaints and criminal behavior against current Oklahoma Department of Human Services (DHS) employees.Internal affairs investigation goals are:
(1) identify employees who engage in fraud, misconduct, or criminal behavior;
(2) improve proficiency and efficiency through review of policies and procedures identified during an investigation; and
(3) protect employees against false allegations.
(b) Policy.It is OIG policy to investigatereviews all complaints of alleged employee fraud, misconduct, or criminal behavior, including anonymous complaints, to determine the validity of the allegations and to take appropriate action.
(c) OIG jurisdiction in criminal investigations.Section 162.4 of Title 56 of the Oklahoma Statutes (56 O.S. § 162.4) authorizes the DHS Director to commission Council on Law Enforcement Education and Training (CLEET)-certified employees as OIG peace officers, called agents.Agents are authorized to investigate crimes committed against DHS or crimes committed in the course of DHS-administered programs and to investigate cases of SoonerCare (Medicaid) recipient fraud.Agents also have the authority to serve and execute process, bench warrants, and other court orders in any judicial or administrative proceeding in which DHS is a party or participant.
(c)(d) Definitions.The following words and terms, when used in this Section, shall have the following meanings, unless the text clearly indicates otherwise:
(1) "Internal affairs investigation" means anaextensive and structuredtype of investigation involving employee misconduct and criminal behavior, approved by the Internal Investigation Review Committee (IIRC), and conducted by OIG.An Internal affairs investigation is assigned to an internal affairs investigator when there are allegations of fraud, misconduct, or criminal behavior.Such allegations may also include corruption, misuse of force, or major violations of DHS policy, Oklahoma Ethics Rules, Merit Rules, and the Oklahoma Personnel Act, and violations of local, state, and federal criminal statutes.
(2) "Internal affairs investigator" means the inspector general, supervisor, or agent assigned by the inspector general or his or her designee to investigate an allegation of employee fraud, misconduct, or criminal behavior.One or more agents may be assigned to an individual investigation.
(3) "Local oradministrator" or "division administrator" means the chief officer, division director, regional director, resource center director, county director, or supervisor authorized to make investigation or discipline decisions.
(4) "Supervisory investigation" means ana type of investigation of an alleged minor policy violation committed by an employee that is conducted by aanlocal or division administrator or his or her designee.
(d)(e)Internal affairs referralscomplaints.
(1) All complaints of alleged employee fraud, misconduct, or criminal behavior, including anonymous complaints, are documented and investigatedreviewed promptly.
(2) ReferralsComplaints are made to OIG from any source including DHS divisions and offices, other state and federal agencies, all law enforcement agencies, and the general public.
(3) ReferralsComplaints from all sources may be made in person, by telephonephone, by email, or in writing.DHS employees may also use Form 19MP001E, Office of Inspector General (OIG) Referral Form., to file a complaint.Procedures for making internal affairs referralscomplaints are available on the DHS InfoNet on the OIG websitewebpage and are provided upon request by contacting OIG.
(4) Complaints made specifically against OIG employees are immediately referred directly to the inspector general or his or her designee.
(5) Complaints are entered into the case management database and a printed copy of the referral is given to the inspector general.
(6) The inspector general initiallyOIG chief investigative administrator or designee reviews a complaint to determine if the complaint should be closed orimmediately referred to an employee's local or division administrator for supervisory investigation.Complaints closed at the initial review are detailed in (f) of this Section.Complaints referred for supervisory investigation are detailed in (h)(2) of this Section.The inspector general or designee is notified when a complaint is referred for supervisory investigation.
(7) The inspector generalOIG chief investigative administrator or his or her designee submits all referralsemployee complaints that pass the initial review process to the Internal Investigation Review Committee (IIRC) for additional review and examination prior to assignment for investigation.Complaints referred for review by the IIRC are detailed in (i)(5) of this Section.The inspector general or his or her designee is notified when a complaint is referred to the IIRC.
(8) The inspector general may submit any complaint to the IIRC for review anytime during the complaint review process.
(9) When a person makes a complaint to OIG regarding an employee committing criminal acts not committed against DHS or in the course of a DHS-administered program, the complaint is taken and reviewed by OIG.The reporting individual is also advised to report the criminal act to the law enforcement agency with jurisdiction to investigate the reported criminal act.
(e)(f) Complaint closures after initial OIG review.During the initial review process, complaints may be closed without additional action by OIG under circumstances in (1) through (9).
(1) The complaint is made against an individual who is not a current DHS employee.
(2) The complaint contains allegations that if sustained are not law or policy violations.
(3) The complaint is only expressing a generalized concern and not an allegation against a DHS employee or group of employees.
(4) OIG personnel are able to determine the complaint is without merit or the employee's actions were within law and policy.
(5) The complaint does not detail sufficient information to determine the identity of the employee alleged to have committed the violation, the date, and location of the alleged violation, any potential witnesses to the violation, or other information to indicate reasonable suspicion a violation occurred.
(6) The complaint was previously investigated by OIG and the current complaint does not provide substantial new evidence.
(7) The complaint contains allegations that are not within OIG investigative jurisdiction.
(8) OIG personnel determines there is no reasonable possibility an investigation will sustain the allegations.
(9) OIG personnel details specific reasons why the complaint is not credible or reliable.
(f)(g)Role of the IIRC role.
(1) Complaints not closed during the initial review process or complaints not forwarded to another DHS division for investigation are referred to the IIRC.The IIRC reviews and evaluates referralscomplaints relating to alleged employee fraud, misconduct, or criminal behavior and determines if the referralcomplaint is assigned as an internal affairs investigation conducted by OIG or if the referralcomplaint is forwarded to a local or division administrator for supervisory investigation.
(2) The IIRC takes into consideration in making their determination:
(A) the severity of the alleged violation determined in the complaint;
(B) the source of the complaint;
(C) the reliability and credibility of the source of the complaint; and
(D) if the information provided in the complaint supports reasonable suspicion to believe a violation of law or policy occurred.
(2)(3) The IIRC is composed of officers or designees from the:
(A) the Office of Inspector General;
(B) Office of Client Advocacy;
(C) Human Resource Management; and
(D)(C) Legal Services.
(3)(4) When the alleged employee fraud, misconduct, or criminal behavior is against an employee of one of the fourthree IIRC divisions that compose the IIRC, the corresponding officer or designee abstains from voting on the final disposition of the complaint.
(g)(h)ReferralsComplaints assigned for supervisory investigation.
(1) When the decision is made to refer a complaint for supervisory investigation, the inspector generalOIG personnel refers the complaint to the local or divisionemployee's supervisor or administrator where the employee is assigned to duty.The local or divisionemployee's administrator conducts the supervisory investigation or determines other appropriate action.
(2) Complaints that are generally referred for supervisory investigation are those of a less serious nature and include rudeness, tardiness, abuse of leave, insubordination, inadequate work performance, inefficiency and error, and other allegations of minor violations of DHS policy.include, but are not limited to:
(A) time and leave violations, including the Family Medical leave Act (FMLA);
(B) willful disobedience;
(C) insubordination;
(D) discourteous treatment of clients, employees, or the public;
(E) medical limitations;
(F) employees accessing confidential DHS records without a work-related need;
(G) dereliction of duty;
(H) inefficient or inadequate work performance; and
(I) complaints with sufficient information to sustain a violation detailed in the allegations, without an OIG investigation.
(3) Complaints referred to other DHS offices for investigation or determination of appropriate action include:
(A) discrimination based on race, color, national origin, religion, sex, age, sexual preference, or disability;
(B) personnel matters where personal relief is sought, such as employee grievances and complaints of prohibited personnel practices;
(C) child abuse or neglect;
(D) financial exploitation, abuse, or neglect of a vulnerable adult, unless the allegation is made against DHS employee alleged to have committed the violation in connection with his or her employment; and
(E) Office of Client Advocacy (OCA) investigated complaints, per Oklahoma Administrative Code (OAC) 340:2-3-1 through 340:2-3-75.
(h)(i)ReferralsComplaints assigned for internal affairs investigation.
(1) When the IIRC determines that a complaint against an employee should be referred for an internal affairs investigation, the inspector generalOIG chief investigative administrator or his or her designee assigns the referralcomplaint to a supervisor.The supervisor may either conductconducts the investigation directly, or assignassigns the investigation to one or more agents.
(2) Agents to whom an investigation is assigned are authorized to report directly to the OIG chief investigative administrator and the inspector general.
(3) The inspector general directs the assigned internal affairs investigator tomay conduct a criminal investigation ifwhen the facts of the case warrant such action.Information gathered during a criminal investigation of a DHS employee may be used in a subsequent administrative investigation, personnel hearing, or other personnel action.
(4) The inspector generalOIG chief investigative administrator or designee may directauthorize the internal affairs investigator to seek the assistance of, or work jointly with, other law enforcement agencies in any internal affairs investigation.
(5) Complaints that are generallymade against DHS employees referred for internal affairs investigation are those of a more serious nature and include fraud, criminal misconduct, misuse of force, major violations of DHS policy, and violations of local, state, and federal statutes.:
(A) crimes committed against DHS;
(B) crimes committed in the course of DHS administered programs;
(C) SoonerCare (Medicaid) recipient fraud;
(D) unauthorized disclosure of confidential information;
(E) making a false report or claim;
(F) falsifying official forms or other documents;
(G) failure to report a finding of guilt, plea of guilty, or nolo contendere to a felony charge;
(H) misuse of state property and equipment; and
(I) employee maltreatment of DHS clients.
(i)(j) Internal affairs investigation procedures.
(1) OIG notifies an employee's local or division administrator that the employee is the subject of an internal affairs investigation.Notification may be delayed if such notification would hamper the investigation.The local administrator may temporarily relieve an employee from duty pending an investigation of disciplinary action per DHS:2-1-7.
(2) OIG notifies an employee in writing that the employee is the subject of an internal affairs investigation.Notification may be delayed if such notification would hamper the investigation.Notification includes a written statement of the allegations against the employee and information about the employee's rights and responsibilities relative to the investigation.
(3) The assigned investigator:
(A) makes every attempt to interview the complainant, the employee under investigation, witnesses, and any other individuals whose statements may assist in the just resolution of the investigation;
(B) liaisons with state or federal prosecutors for legal advice and case preparation when the internal affairs investigation involves allegations of criminal behavior;
(C) collects and examines all evidence relevant to the investigation including, but not limited to, written statements, video or audio recordings, emails, electronic devices, documents, test results, police reports, and photographs; and
(D) prepares a written report to address the allegations in the complaint and to summarize the evidence obtained during the investigation.
(4) After reviewing the final report, the inspector general determines a finding on each allegation.Findings are classified as:
(A) "sustained" means the evidence tends to support the allegation of misconduct;
(B) "not sustained" means there is insufficient evidence to either prove or disprove the allegation of misconduct;
(C) "unfounded" means the evidence tends to disprove the allegation of misconduct; or
(D) "exonerated" means the evidence tends to support factual occurrence, but conduct does not appear improper.
(5) Internal affairs investigations are completed within 60-calendar days after referral for investigation by the IIRC.Extensions beyond 60-calendar days may be granted by the inspector generalOIG chief investigative administrator in exceptional situations.
(6) When allegations of felony criminal violations are sustained against a DHS employee, the inspector general determines if a copy of the final report is sent to internal affairs investigator coordinates with the state or federal prosecutor.to determine when there is sufficient evidence for prosecution.If the case is accepted for criminal prosecution, a report containing the findings of administrative violations is sent to the applicable local or division administrator and to DHS Legal Services.
(7) When allegations of misdemeanor criminal violations are sustained against a DHS employee, the inspector general or designee determines when the case should be referred for prosecution.
(7)(8) The inspector generalOIG advises the local or division administrator as to the status of any criminal charges filed and any requests by state or federal prosecutors for delay of administrative action until resolution of the criminal charges.
(8) The local or division administrator determines any administrative disciplinary action per DHS:2-1-7.
(9) The final report and findings regarding the allegations is forwarded to the local or division administrator of the affected division and to Legal Services for review and determination of appropriate action.
(10) The local or division administrator determines any administrative disciplinary action, per DHS:2-1-7.
(i) Internal affairs investigations involving criminal and administrative violations.
(1) Complaints that allege both criminal and administrative violations require separate investigations of the allegations.
(2) A single assigned investigator conducts criminal and administrative investigations consecutively.
(A) The assigned investigator conducts the criminal investigation and prepares a final report addressing the criminal allegations.
(B) After the criminal investigation and report are completed, the assigned investigator conducts the administrative investigation and prepares a final report addressing the administrative allegations.
(3) Two assigned investigators conduct criminal and administrative investigations concurrently.
(A) One investigator conducts the criminal investigation and prepares a final report addressing the criminal allegations.
(B) The other investigator conducts the administrative investigation and prepares a final report addressing the administrative allegations.
(4) Investigators assigned to administrative investigations have access to any evidence collected during criminal investigations.
(j)(k)Employee rights,and responsibilities, and requirements during investigation.
(1) During the investigation process, accused employees have the right to:
(A) be advised in writing of the allegations against them;
(B) be provided a copy of the internal affairs policy that explains the investigation processadvised when the investigation involves allegations of criminal behavior or administrative violations;
(C) contact the assigned investigator to be advised of the status of the investigationbe provided a copy of the internal affairs policy that explains the investigative process;
(D) be advised of and to sign the Miranda warning against self-incrimination prior to a custodial interview concerning alleged criminal violationsbe advised and sign Form 19IV005E, Office of Inspector General (OIG) Miranda Advice of Rights and Waiver, prior to a custodial interview concerning alleged criminal violations; and
(E) request legal counsel before or during an interview concerning alleged criminal violations.contact the assigned investigator to be advised of the status of the investigation; and
(F) request legal counsel before or during an interview concerning alleged criminal violations.
(2) During the investigation process, accused employees have the responsibility to:
(A) truthfully and fully answer questions asked by investigators;
(B) refrain from actions that interfere with the investigation, including actions that intimidate, threaten, or harass potential witnesses;.
(C) comply with lawful orders to submit to the special examinations described in subsection (k) of this Section; and
(D) cooperate in the collection of evidence relevant to the investigation.
(3) During the investigation process, accused employees do not have the right to:
(A) review any part of the internal affairs investigation file; or
(B) contact the complainant unless the complainant is the employee's supervisor or local or division administrator.
(4) During the investigative process, accused employees are required to truthfully and fully answer questions and cooperate in investigations after being presented Form 19IV006E, Office of Inspector General (OIG) Administrative Interview Advice of Rights.Failure to cooperate or failure to answer questions after being presented with Form 19IV006E is considered misconduct and knowingly withholding information of official interest.
(5) During the investigation process, accused employees may be required to submit to undergo special examinations as described in subsection (p).
(l) OIG interview of accused employee when criminal behavior and administrative violations are suspected.
(1) Where criminal prosecution and administrative violations are possible, and before interviewing the accused employee, the internal affairs investigator will ensure that the employee:
(A) is informed that criminal behavior and administrative violations are suspected;
(B) is given Form 19IV007E, Office of Inspector General (OIG) Notice of Internal Affairs Investigation and Notice Regarding Statements During Internal Investigations, notifying the employee of 21 O.S. § 281; and
(C) when not in custody, is read and given the opportunity to sign Form 19IV008E, Office of Inspector General (OIG) Noncustodial Advice of Rights; or
(D) when in custody is read and given the opportunity to sign Form 19IV005E, Office of Inspector General (OIG) Miranda Advice of Rights.
(2) When an accused employee makes a written or oral statement invoking his or her right to remain silent, the internal affairs investigator:
(A) stops the interview;
(B) notifies the special agent in charge;
(C) coordinates with the OIG chief investigative administrator to determine if Form 19IV006E is given to the employee.
(3) If at any time during the interview, an accused employee makes a written or oral statement invoking his or her right to counsel the internal affairs investigator:
(A) stops the interview;
(B) notifies the special agent in charge;
(C) coordinates with the OIG chief investigative administrator to determine if Form 19IV006E is given to the employee; and
(D) does not interview the employee about a matter that could result in criminal prosecution without his or her attorney present.
(m) OIG interview of accused employee when only administrative violations are suspected.
(1) Where information is being sought for administrative purposes only, and not for use in criminal prosecution, the internal affairs investigator ensures the employee:
(A) is informed administrative violations are suspected;
(B) is given Form 19IV007E notifying the employee of 21 O.S. § 281; and
(C) is advised of the requirement to truthfully and fully answer questions and to cooperate with the investigation.
(2) When the employee refuses to cooperate with the investigation or answer questions concerning the performance of his or her official duties, the employee is given Form 19IV006E as determined by the OIG chief investigative administrator.
(n) OIG use of Form 19IV006E.
(1) The inspector general or his or her designee or the OIG chief investigative administrator or his or her designee, may authorize an internal affairs investigator to present Form 19IV006E to an accused employee.
(2) After being given Form 19IV006E the accused employee is required to cooperate with the investigation and to truthfully answer questions concerning the performance of his or her official duties or fitness for duty.
(3) Information gathered from an accused employee, after signing Form 19IV006E, is considered compelled and is not used against the employee in any subsequent or ongoing criminal proceeding.
(o) OIG use of Form 19IV002E, Notice Regarding Statements During Internal Investigations.
Before interviewing any person in an internal affairs investigation, other than the accused employee, the internal affairs investigator presents to the person being interviewed Form 19IV002E, Notice Regarding Statements During Internal Investigations.
(k)(p) Special examinations.
(1) An employee under investigation for alleged administrative violations may be ordered, upon specific approval by the inspector general, to undergo special examinations at DHS expense of DHS, to include:
(A) handwriting analysis;
(B) photographs for use in a photographic line-up; or
(C) submission of financial disclosure statements when they are relevant to a particular investigation.
(2) Allegations of drug or alcohol use and any associated testing requirements are described in OAC 340:2-1-40 through 340:2-1-46.
(3) Special examinations are specifically and narrowly related to a particular investigation.Refusal to submit to special examinations as part of an internal affairs investigation is considered employee misconduct.
(4) An employee has no expectation of privacy on property owned or leased by DHS.All DHS property is subject to inspection.Property includes, but is not limited to, buildings, vehicles, desks, electronic devices, and files.
(l)(q) Internal affairs records.OIG maintains an electronic record of the allegations, investigator notes, and outcomes of complaints against DHS employees on the case management database.Hard copies of the original report and all associated evidence are secured in locked file cabinets and maintained in accordance with the applicable DHS records management and disposition plan.
