THE LAST WORD
misconduct? Oh, never mind!
Here is the situation you confront. Allegations of misconduct are made about a senior official. The
allegations go back to conduct over the course
of four decades. You schedule an investigation.
The official then resigns, because they cannot
do their job and still “fight this battle.” As a
compliance and ethics professional,
what do you do?
(A) Say, “Oh, they resigned, so there is
nothing left to do”? or
(B) Continue with the investigation?
Apparently, the answer depends
on whether you work in a company
or in the federal judiciary. If you follow the
Sentencing Guidelines standards, you know
that you need to do a root cause analysis.
You need to take steps to “prevent further
similar…conduct,” and you can only do this if
you know what happened.
You also need to know who knew what,
and who failed to act or report misconduct.
Did others know but fail to act? Were there
any threats or actual retaliation to protect the
senior person? Of course, you need to talk
with those who reported misconduct and also
those who may have witnessed it. You will
at least ask to talk to the alleged perpetrator,
even if the person has “retired.” You know
that it is never sufficient simply to say, “He
was in such a high position; it is enough that
his legacy is now tainted.” At least not in the
world of business.
But we have just witnessed what
happens in the federal judiciary. A Ninth
Circuit judge is subject to numerous
accusations about sexual harassment going
back decades. A judicial inquiry is started,
but because he resigns (with full retirement
benefits), there is nothing they can do, so
they discontinue any investigation. Instead,
the Administrative Office of the United
States Courts begins a general inquiry
about what should be done going forward
throughout the judiciary.
This is wrong. The judiciary as an
organization should apply the same standards
for compliance work that the judiciary’s
own Sentencing Commission has wisely
provided for all organizations. The Sentencing
Guidelines for Organizations provide a strong
suite of management tools that need to be
applied in this area. (Yes, the Guidelines speak
to criminal conduct, but the points apply
just as readily to any form of misconduct
Clearly, when a top official does wrong,
merely having him bail out should never be
the end of an inquiry. We need to know how
this could have happened, who knew what
and when did they know it, and what we have
learned from this failure.
And what about the overall administrative
policy review? Will they simply recommend a
policy and have training (which many judges
will be “just too busy to attend”), or will they
do something that actually works? ✵
by Joe Murphy, CCEP, CCEP‑I
Joe Murphy ( firstname.lastname@example.org) is a Senior Advisor at Compliance
Strategists, SCCE’s Director of Public Policy, and Editor-in-Chief of Compliance & Ethics