Introduction to Special Investigations Handbook PH05-I-4

1
Introduction to Special Investigations
Handbook PH05-I-4

• Judy R. Peters
• peters.judy_at_dol.gov
• 304-256-3469

2
Chapter 1

• The Technical Compliance and Investigation Office
  is responsible for overall administration of the
  special investigations program.

3
Chapter 1

• District manager is responsible for managing
  his/her special investigations program
• The SSI reports directly to the District Manager
  and is responsible for the daily management of
  the special investigation program.

4
Chapter 1

• Special Investigators report to the SSI when
  conducting investigations
• DO NOT CONDUCT INTERNAL INVESTIGATIONS against
  MSHA employees
• DO NOT carry weapons
• DO NOT conduct physical or technical surveilance

5
Chapter 1

• SI Credentials
• Authorized representative or Right of Entry
• Complete formal training
• On-the-job training
• Credentials must be kept secure
• Cannot be used for preferential treatment
• CAN NOT carry other types of badges

6
Chapter 1

• All investigations are confidential and must not
  be discussed with any unauthorized persons.
• Requests for information in an SI case must be
  referred to TCIO

7
Chapter 1

• FBI Requests for Assistance
• May request background information
• Laboratory examinations of evidence
• Written requests for identification of
  fingerprints, etc, must be directed to the FBI
  headquarters

8
Chapter 2 Miners would have to play an active
part in the enforcement of the Mine Act to have a
truly effective SH program.
9
Protected Class

• Miners
• Representative of Miners
• Applicants for a mining position
• are
• Protected from retaliation for engaging in safety
  and health related activities

10
Protected Activity

• Identifying hazards
• To them self or others
• Asking for an MSHA inspection
• 103(g) complaint or Code-A-Phone
• Refusing to engage in an unsafe or unhealthy
  act
• Work Refusal

11
Priority

• Discrimination Complaints are given priority over
  all other special investigation cases
• All available Special Investigation resources
  will be used to ensure the timely initiation and
  completion of the cases
• Supervisory Special Investigator
• Additional resources requested from TCIO

12
Section 428, Title IV

• Prohibits discrimination against coal miners who
  are suffering from pneumoconiosis
• Only underground coal miners
• Administered by the Employment Standards
  Administration (ESA)

13
Agreement with ESA

• Memorandum of Understanding with ESA to provide
  additional locations to file complaints
• ESA will accept Section 105(c) cases
• MSHA will accept Black Lung cases
• MSHA will conduct an investigation
• If no violation of Section 105(c), will forward
  complete case file to ESA
• If dual violation, will process forward
  comlpete copy to ESA

14
Agreement with NLRB

• Memorandum of Understanding between MSHA and
  National Labor Relations Board (NLRB)
• Violations of Mine Act
• Violations of NLRB
• Both TCIO and NLRB are responsible for
  coordination and consultation in handling
  discrimination complaints

15
Processing Complaints

• Proper coordination and processing ensures
  efficient action
• Filed with any MSHA or ESA office
• At least one person in each field office and
  District office designated and trained to process
  complaints
• At least one alternate

16
Confidentiality

• Will be maintained by all MSHA employees involved
  in the process
• Copies of complaints are NOT to be retained by
  the complaint processor
• Only original complaint is to be maintained in
  the case file
• Complaint and file maintained in accordance with
  Privacy Act

17
Receiving Complaints

• Complaint forms may be obtained from any MSHA or
  ESA office
• Provided by Complaint Processor
• Complaint form 2000-123 (Page 2-8)
• Report Form 2000-124 (Page 2-11)
• FMSHRC Rules of Procedure (2007 edition is not in
  Handbook)
• Privacy Act Statement (page 2-16)

18
Lost Wages or Employment

• Information on Backpay for Miners
• (Page 2-17 thru 2-20)
• Claimant Expense Search for Work, and Interim
  Earnings Report
• (Page 2-21 thru 2-22)
• MSHA enforcement personnel must have access to
  all material

19
In person

• Individuals who come into an MSHA office with
  questions concerning discrimination should be
  referred to
• Complaint processor
• SSI
• or Other designated person
• Complaint processor
• Should discuss general nature of complaint
• Provide forms and other documents
• Assist in filling out the forms

20
By Telephone

• Individuals should be referred to Complaint
  Processor
• Complainant advised he/she may come to any MSHA
  office to file complaint and be assisted in
  preparing and filing a complaint
• or, Packet mailed to complainant
• A cover letter (Page 2-23)
• Forms documents listed on page 2-23
• Certified Mail return receipt

21
By Mail

• Any signed letter or written document received in
  any MSHA office which alleges a discriminatory
  act will be treated as a complaint
• Information will be transferred to Forms 2000-123
  2000-124 and attached to the letter
• Complainant will sign 2000-124 during
  investigation
• Cover Letter (Page 2-23)
• Forms documents listed on page 2-23

22
Form 2000-123

• Capture pertinent information from complainant on
  specific items
• Include as much information as possible
• Advise complainant NOT to include names,
  addresses and phone numbers of potential
  witnesses

23
Form 2000-124

• Complainant summarizes the discriminatory action
• Brief
• Concise
• One or two paragraphs
• Remedy
• Names, addresses, and phone numbers of potential
  witnesses are not to be included on this form

24
Group Complaints

• Filed on behalf of a group of miners
• Complaint and remedy is the same for all
• Only one case number assigned
• One case file prepared
• Signed by each person in the group
• Separate case numbers and case files
• Different or unique issues
• Events occurred at different times

25
Referrals to Different Districts

• Mine not in the districts jurisdiction
• Complaint Processor shall immediately notify the
  SSI
• Arrangements can be made to forward the
  information to the appropriate office for
  processing

26
General Investigative Procedures

• Investigation must address five elements of
  discrimination (Page 2-30)
• Protected Class
• Protected Activity
• Adverse Action
• Nexus
• Operators Defense

27
Protected Class

• The complainant must provide evidence that he/she
  is employed as, or acting in the capacity of, one
  of the protected classes
• Miners
• Representative of Miners
• Applicant for a mining position

28
Protected Activity

• Filing or making a complaint of an alleged danger
  or safety or health violation
• Instituting a proceeding under the Mine Act
• Testifying or preparing to testify in any
  proceeding
• Being the subject of medical evaluation and
  potential transfer under Section 101

29
Protected Activity, contd

• Enforcement of the safety training provisions of
  Section 104(g) and Section 115
• Refusing to work in unsafe or unhealthy
  conditions
• Participating in an inspection in accordance with
  Section 103(a)
• Exercising any statutory right afforded by the
  Mine Act

30
Burden of Proof

• Complainant must provide evidence that he/she was
  involved in activity afforded by the Mine Act
• Work Refusals - complainant must make a
  reasonable attempt to convey their safety and
  health concerns to management
• Complainant must be reasonable in their belief
  that the condition or work assignment was unsafe
  or unhealthy

31
Discriminatory Acts

• Complainant must provide proof that some type of
  adverse action occurred
• Discharge, Termination, or Lay-off
• Demotion
• Refusal of employment
• Reduction in benefits
• Vacation
• Bonus
• Rates of pay

32
Discriminatory Acts, Contd

• Change of work hours
• Interference with the exercise of the statutory
  right of miners
• Subtle forms of interference
• Promises of benefit
• Threats of reprisal
• Transfer to another position with loss of pay

33
Nexus

• Investigator must show by a preponderance of
  evidence that there is a connection between the
  protected activity and adverse action
• Perceived or real
• Prima Facie Case
• Timeliness of events
• Evidence of disparate treatment
• Admission by discriminating official
• Knowledge of miners protected activity

34
Operators Defense

• Operator may rebut the Prima Facie Case or offer
  evidence to affirmatively defend their actions
• The complainant was not involved in protected
  activity
• No discriminatory act
• The action taken was motivated by the
  complainants involvement in unprotected activity
  and adverse action would have been taken in any
  event

35
Timeframes

• All timeframes are initiated from the date
  complaint is received by an MSHA office
• Fifteen Days - All investigations initiated
• Forty-Five Days - All case files postmarked and
  mailed to TCIO (Case on the merits)

36
Temporary Reinstatements

• Seven days notify TCIO and Solicitor
• (Page 2-6)
• Complainants name
• Date filed
• Date of TR request
• Mine name and ID number
• Name and phone number of SI
• Twenty Days refer case to Sol or decline
• Page 2-33 or Pages 2-34 thru 2-35
• Thirty Days SOL file case with FMSHRC or
  decline

37
TR Standard of Proof

• The investigation only has to establish there is
  a reasonable cause to believe that a
  discriminatory act occurred
• The case was not frivolously brought as
  distinguished from the preponderance of evidence
  standard to prove the underlying discrimination

38
Case on the Merits

• Sixty Days TCIO complete review and refer to
  SOL or decline
• Ninety Days SOL must file a complaint with
  FMSHRC or decline

39
Withdrawn Complaints

• Complainant may withdraw complaint at any time
• Submit request in writing
• Discontinuance of Discrimination Complaint (Page
  2-26)
• Witnessed by an SI
• Notarized
• Verified by SI if submitted by mail

40
Withhdrawn Complaints, contd

• Understanding, Settlement, or Agreement
• Letter to complainant
• Copy to respondents
• Prepared by TCIO
• Mailed certified return receipt
• Page 2-27
• Any other reason
• Letter to complainant
• Copy to respondent
• Prepared by TCIO
• Mailed Certified return receipt
• Page 2-28

41
Hazardous Conditions

• Possible hazardous conditions identified during
  an investigation shall be reported and documented
  in a memorandum to the file
• Referring conditions to the DM
• Action taken by the SI
• Action taken by the SSI
• Action taken by enforcement personnel

42
MSIS Codes

• E12 Knowing/willful Investigations (110)
• E05 Injunctive Actions or Other SI activities
  (108)
• E11 Discrimination Investigation
• T03 Legal Hearings/Documents

43
Chapter 3

• Injunctive Actions and Assaults on Inspectors
• Denial of Entry
• Work in defiance of closure order
• Attempts to harass inspectors
• Attempts to delay inspections

44
Defining Injunctive Actions

• An order from a United States District Court
  commanding a person to do something (such as
  allow entry) or to refrain from doing something
  (work in defiance of an order of withdrawal).
• Failure to comply with injunction is punishable
  by contempt of court.

45
Preliminary Injunction

• Order issued after a hearing with both parties
  present pending a full hearing.
• Temporary Restraining Order (TRO) may be issued
  by the court
• Must demonstrate that irreparable damage or harm
  will occur to the party or case before the case
  can be fully argued in court.

46
Permanent Injunction

• Final order requiring the party to comply
• Issued after a full hearing or trial
• Can use the Preliminary Injunction hearing as
  basis for the permanent injunction

47
Denials of Entry

• Inspection Supervisor immediately contact the DM
  and assist in preparation of inspectors summary
  or events
• District manager requests and coordinates
  injunctive actions
• SSI will be responsible for advising and
  assisting the DM and establish a case file
• Office of the Solicitor advises MSHA and files
  actions

48
Assaults or Harassment

• Section 1114, Title 18, United States Code makes
  it a Federal crime to kill or attempt to kill an
  officer or employee of the US Government
• Crime to forcibly assault, resist, oppose,
  impede, intimidate, or interfere with any person
  designated in Section 1114 of Title 18 while
  engaged in or on account of the performance of
  their duties.

49
If Assaulted or Harassed

• Leave the scene
• Advise parties that it is a Federal crime to
  assault or harass an inspector
• Contact supervisor immediately
• Personnel should not return to the mine until
  instructed to do so by the DM

50
Chapter 4

• Under Sections 110(c) MSHA is authorized to
  propose assessments of civil penalties against an
  agent of a corporation (or LLC) for knowingly
  violating a mandatory safety or health standard
• MSHA may also pursue criminal proceedings against
  an operator who willfully violates a mandatory
  safety or health standard

51
Knowingly

• Does not have any meaning of bad faith or evil
  purpose or criminal intent. . . A person has
  reason to know when he has such information as
  would lead a person exercising reasonable care to
  acquire knowledge of the fact in question or to
  infer its existence

52
Willful

• The failure to comply with a mandatory health or
  safety standard is Willful if done knowingly and
  purposely be a mine operator who, having a free
  will and choice, either intentionally disobeys
  the standard or recklessly disregards its
  requirements. . . The closing of the eyes to or
  deliberate indifference toward the requirements .
  . .

53
Section 110 Investigations

• Initiated at the discretion of the DM
• After a mine accident
• Receipt of complains alleging violations of
  110(e), 110(f), or 110(h)
• Review of citations or orders

54
Review of Citations Orders

• 104(a) citations that contributed to issuance of
  a 107(a) order
• 104(d) SS citations or orders
• 104(g) orders evaluated as high or Reckless
  disregard
• Citations issued for working in the face of an
  order

55
Mandatory Health or Safety Standard

• 30 CFR parts
• 46 57 72
• 47 58 75
• 48 62 77
• 49 70 90
• 50.10 71
• 56

56
Timeframes

• DM issues a determination within 30 days whether
  or not to conduct an investigation
• Investigation must commence within 60 days
• District makes recommendation for action within
  150 days
• Section 110 (c) cases referred to Office of
  Assessments within 220 days
• Criminal cases referred to DOJ within 240 days

57
Chapter 5

• The spoken word is potentially the greatest of
  all sources of investigative evidence
• No investigation is complete until every
  potential witness is contacted
• Proficiency in interviewing is of the utmost
  importance

58
Preparing for the Interview

• Location
• Statements taken seperately
• Control physical conditions
• Privacy homes, office, car, public place
• Selection of Interviewees
• All persons having information relevant to the
  case
• Each person will be offered an opportunity to
  provide a confidential statement

59
Preparing for the Interview

• If an interviewee does not need to be interviewed
  or refuses to be interviewed, the SI must
  document this in the case file
• Representatives
• May also represent other parties in the case
• No arguments
• SI in control
• Representatives may not reply for their client

60
Planning the interview

• Establish rapport
• Determine the direction of interview
• Analyze violations
• Analyze the issues
• Analyze potential witness their knowledge
• Prepare an outline
• Determine issues and topics of discussion
• Establish order of interviews

61
Conducting the Interview

• Remain Professional
• No threats or promises whatsoever
• Questions are clear, communicative, and designed
  to elicit information
• Each person interviewed separately
• Present credentials

62
Pledges of Confidentiality

• Persons interviewed in private
• NOT OFFERED if multiple persons are present
• Not offered to management personnel unless they
  request to provide a confidential statement in
  private

63
Types of Questions

• Who was involved?
• What happened?
• When did it happen?
• Where did it happen?
• How did it happen?
• Why did it happen
• Which one did it?

64
Leading Questions

• Should be avoided
• A leading question directs or suggests the
  desired answer
• Was John there?
• Did you see it happen?
• Used during summary or to clarify understanding

65
Narrative Questions

• Phrased to elicit narrative answers
• Tell me what you saw?
• Describe the equipment?
• Describe the location?
• Who was there?

66
Note Taking

• IMPORTANT!
• Supports events
• Memories fade
• Issues become unclear
• Contemporaneous Notes
• Documentation of comments and observations (Daily
  reports, diaries, scrap paper, internal
  memoranda)
• Must be retained

67
Note Taking

• Legal Support
• Must maintain all relevant documents
• Format
• No official MSHA form
• See page 5-14

68
Note taking

• Content
• Depict exact words of the interviewe
• Subject of notes
• Date
• Place
• Signature of SI
• Case Number

69
Statements

• Signed or electronically-recorded
• Reviewed by interviewee for accuracy and signed
• Use of Statements
• Refresh memory
• Impeach Interviewee
• Evidence

70
Statements

• Signatures of Interviewees
• Interviewee afforded opportunity to review,
  correct, and sign statement
• Types of Statements
• Handwritten
• Recorded
• Memorandum of Interview (MOI)

71
Interview Outline

• Introduction
• Prepare for Interview
• Formulate Questions
• Who, What, When, Where, Why, How
• Review Documents
• Accident or illness reports
• Investigation reports
• Violation history
• Approved Plans
• Mine records and maps

72
Interview Outline

• Determine who to interview and where to conduct
  interviews
• Complainant first in 105(c)
• Inspector first in 110(c)
• Arrange interviews in private
• Do not leave messages with others
• Schedule the Interview

73
Interview

• Establish Rapport
• Introduce and identify yourself
• Establish a relationship
• Refrain from saying or doing anything which will
  cause the interviewee to be unwilling to talk

74
Interview

• Question
• Knowing what to ask and when to ask it is
  critical
• Seek accurate information
• Control conversation
• Corroborate information
• Identify inaccuracies

75
Interview

• Non-Verbal Characteristics
• Sweating
• Color changes
• Dry mouth
• Pulse
• Abnormal breathing
• Nervousness
• Evasive facial expressions
• Embarrassment
• Conflicting body gestures

76
Interview

• Recorded statement
• Written
• Listen to story first without taking notes
• Ask permission to take notes
• Tape recorded
• Obtain permission before and after interview
• State date, time, location and all parties
  present
• Voluntary statement and interviewee is aware it
  is being recorded

77
Chapter 6

• We do not have authority to seize evidence that
  is not voluntarily released
• Every piece of evidence that could have a
  connection with the case should be collected
• All evidence must be identified and marked

78
Nature and Type of Evidence

• Real (Physical) Evidence
• Documentary Evidence
• Testimonial Evidence
• Direct
• Circumstantial
• Cumulative

79
Custody of Evidence

• Identify
• Joint Custody
• Preservation of Evidence
• Transmission of Evidence
• Return of Evidence

80
Evidence

• Certification of Documents
• Handling of Grand Jury Information
• Access
• Use
• Disposal