Conducting an Investigation: a step by step guide Analyzing, Reporting, and Ensuring You Consider Procedural Fairness

Objective Criteria 24(1) of The Ombudsman and Children’s Advocate Act (SK) Where, after making an investigation under this Act, the Ombudsman is of the opinion: (a) that a decision, recommendation, act or omission that is the subject matter of the investigation appears to have been: (i) contrary to law; (ii) unreasonable, unjust, oppressive, improperly discriminatory or was in accordance with a rule of law, a provision of an Act, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; (iii) based in whole or in part on a mistake of law or fact; or (iv) wrong;

Objective criteria Contrary to Law A decision will be contrary to law if it is: –Contrary to a statute or common law; –Undertaken without legal authority; –A violation of the principles of administrative fairness or other legal principles; or –A failure to comply with the findings or order of a court or tribunal Wrong A decision is wrong if: –It is based on an incorrect interpretation of the facts; –It is illogical and contradicts or departs from policy, process or procedure which sets out the ‘right’ way; –It is wrong for either moral reasons or because it is illogical; and/or –The investigation uncovers new facts previously unknown, which now casts doubt about the correctness of the previous actions and decision.

Procedural Fairness Individuals about whom a decision is being made should be notified in a reasonable manner that: a)a decision is going to be made before it is made; and b)the basis being used to make that decision. Reasonable Notification

Procedural Fairness Following proper notification and before the decision is made, the affected individual should be provided with: a)an opportunity to review the information being considered; and b)an opportunity to provide the decision-maker with alternative or contrary information. The Ability to Respond

Procedural Fairness All relevant information should be fully and fairly considered by the decision-maker, and information that is irrelevant to the decision at hand should not be considered. Consideration of Relevant Information

Procedural Fairness All decisions should be open to review and be correctable. Decisions should be Reviewable and Correctable

Procedural Fairness Adequate reasons for the decision must be provided to the individual. At a minimum, reasons for a decision at all levels should include: a)a statement of the decision; b)a summary of the information relied upon by the decision-maker; c)an explanation of how any contradictions in the information were reconciled by the decision-maker; and d)any other relevant reasons for making the decision. Provision of Adequate Reasons

Procedural Fairness The decision maker should be free of and be seen to be free of bias. Free From Bias

Procedural Fairness In addition to the minimal fair practices, additional procedures may be required for some decisions, taking into consideration the following: a)The nature of the decision; b)The impact of the decision on the individual or group affected; c)The rights created by law; and d)Legitimate expectations of the parties. Additional Procedural Requirements

Fairness Triangle

Analyzing Information… Relevant Reliable How much weight to give the information?

Assessing Reliability Internal Consistency External Consistency Opportunities for Knowledge Observation, Recall and Articulation Interest in the Outcome Degree of Detail Probability

Assessing Reliability IS NOT ABOUT: Demeanor Who the person is

Providing Fairness Case Assessment and Issue Identification Unbiased Review Consideration of Relevant Information Meaningful Reasons Access to Appeal/Review Additional Requirements

Providing Fairness Building an Investigative Plan Unbiased Investigator Notification of Issues and Information Consideration of Relevant Information Additional Requirements

Providing Fairness Interviewing Unbiased Investigator Notification of Issues and Information Opportunity to Respond Consideration of Relevant Information Additional Requirements

Providing Fairness Gathering and Reviewing Information Unbiased Investigator Notification of Issues and Information Opportunity to Respond Consideration of Relevant Information Additional Requirements

Providing Fairness Analyzing Information Unbiased Investigator and Decision Maker Consideration of Relevant Information Meaningful Reasons Access to Appeal/Review Additional Requirements

Providing Fairness Report Writing Unbiased Investigator and Decision Maker Consideration of Relevant Information Meaningful Reasons Access to Appeal/Review Additional Requirements

Analyzing Information Pitfalls Lack of planning Lack of objectivity by the investigator Reliance on unproven assumptions Failure to follow due process Failure to obtain all of the relevant evidence which is available

Analyzing Information Pitfalls Lack of resourcing and/or poor use of resources Shortcuts Lack of leadership Poor investigation documentation Lack of training Failure to consider the organisational culture Making unrealistic recommendations

Panel Discussion Pitfalls and Lessons Learned