In the corporate world as well as government, anonymous complaints about personnel — whether to a hotline, or via the mail — are seen as the price of doing business. These anonymous whistleblowers sometimes can’t speak out because of their circumstances and some have legitimate points to make. And some companies readily encourage such complaints as a means to improve their business.
But, with anonymous complaints come the nagging questions: Who wrote it? And why?
Sometimes the writers have less-than-kosher motives. Instead of whisteblowers, they may just be a disgruntled employee looking to get their boss, or someone they dislike, in trouble.
A case out of Connecticut illustrates the risk arising from receiving and considering anonymous complaints. The case arises out of the ouster of the State Ethics Chief Alan Plofsky in 2004. He has now sued claiming, among other things, that his First Amendment and due process rights were violated when he was fired. For additional background, the Hartford Courant filed this report. The Board Commissioners have now moved for summary judgment on his claims (essentially asking the court to throw out the claims) and Mr. Plofsky filed his brief in opposition to the motion on Friday.
In August 2004, after a very public tussle between the Ethics Chief and the Ethics Board, various Board commissioners received copies of an anonymous complaint, purportedly written by a parking lot attendant. The letter, at least according to Plofsky’s papers, sparked another round of investigation — though it apparant that the Board and the Ethics Chief had had their disagreements prior to this. (I should note that there is LOTS more to this case than meets the eye so I would encourage readers to review the summary judgment papers filed by the Board Commissioners for a more complete picture.)
Here’s the issue with the letter: It wasn’t written by a parking lot attendant; it was apparently written by one of the ethics staff lawyers, who, later made a separate complaint of her own about Plofsky. In the course of discovery, sure enough, she claimed that she was the author. According to Plofsky’s attorney, the staff lawyer intentionally made errors — such as the misspelling "anonimus" — so the made-up attendant would appear "under-educated." The Governor’s office on Monday indicated that they would investigate that attorney further for her behavior.
While it may have no real impact on the legal claims, those who were investigating the claims raised in the letter surely would have liked to known that fact. Would it have changed the results? That’s for others to determine, and certainly the Board Commissioners will argue that there was ample evidence (outside this Complaint) that supported their actions.
So, what sorts of things can employers take away after learning about the issue of anonymous complaints? In general, employers may consider the following:
- Treat anonymous complaints with a dose of healthy skepticism. Questioning the writer’s motives is not the same as trying to determine the author’s identity, so see if you can figure out those motives from the letter and surrounding context.
- Nevertheless, if the situation warrants, conduct a full investigation to determine the veracity of the claims raised in the complaint; don’t assume any facts to be true, just because the complaint says so.
- Give the target of the investigation an opportunity to rebut the complaint.
- Document the investigation in the form of a memo with supporting documents with the reasons why certain steps are being taken (or not being taken) as a result of the investigation.
- Be prompt with the investigation; letting such a complaint fester may only excaserbate a problem.
While internal investigations are becoming more common and routine within some companies, seeking sound legal advice on how best to proceed is certainly worthwhile too (and this blog should not be a substitute for such advice). There may be instances where an outside attorney is called upon to conduct the investigation. Or there may be instances that warrant conducting an investigation in a different fashion.