by James C. Sherlock
I recently published a much commented upon column concerning the governance of Virginia.
In it I failed to mention the Office of the State Inspector General (OSIG).
The mission of that office is to partner “with other state agencies to serve as a catalyst for positive change by:
- Facilitating good stewardship of resources.
- Deterring fraud, waste, abuse and corruption.
- Advocating and practicing efficiency and effectiveness.
- Promoting and practicing integrity and ethical conduct.”
This site often serves as an outlet for citizen complaints about the performance of Virginia’s government.
It is thus useful for readers to know:
- their rights and obligations in reporting government malfeasance or misfeasance; and
- how and under what circumstances to file a complaint to the Virginia OSIG that is charged with overseeing government performance.
This column will be dedicated to providing that information.
Code of Virginia Chapter 30.1. The Fraud and Abuse Whistle Blower Protection Act
§ 2.2-3009. Policy.
It shall be the policy of the Commonwealth that citizens of the Commonwealth and employees of governmental agencies be freely able to report instances of wrongdoing or abuse committed by governmental agencies or independent contractors of governmental agencies.
§ 2.2-3010. Definitions.
As used in this chapter, selected definitions include:
“Abuse” means an employer’s or employee’s conduct or omissions that result in substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government sources.
“Appropriate authority” means a federal, state, or local agency or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or abuse; or a member, officer, agent, representative, or supervisory employee of the agency or organization. The term also includes the Office of the Attorney General, the Office of the State Inspector General, and the General Assembly and its committees having the power and duty to investigate criminal law enforcement, regulatory violations, professional conduct or ethics, or abuse.
“Good faith report” means a report of conduct defined in this chapter as wrongdoing or abuse that is made without malice and that the person making the report has reasonable cause to believe is true.
“Governmental agency” means (i) any agency, institution, board, bureau, commission, council, or instrumentality of state government in the executive branch listed in the appropriation act and any independent agency; (ii) any county, city, or town or local or regional governmental authority; and (iii) any local school division as defined in § 22.1-280.2:2.
“Misconduct” means conduct or behavior by an employee that is inconsistent with state, local, or agency standards for which specific corrective or disciplinary action is warranted.
“Whistle blower” includes a citizen of the Commonwealth who witnesses or has evidence of wrongdoing or abuse and who makes or demonstrates by clear and convincing evidence that he is about to make a good faith report of, or testifies or is about to testify to, the wrongdoing or abuse to an appropriate authority.
“Wrongdoing” means a violation, which is not of a merely technical or minimal nature, of a federal or state law or regulation, local ordinance, or a formally adopted code of conduct or ethics of a professional organization designed to protect the interests of the public or employee.
§ 2.2-3010.1. Discrimination and retaliatory actions against citizen whistle blowers prohibited; good faith required; other remedies.
A. No governmental agency may threaten or otherwise discriminate or retaliate against a citizen whistle blower because the whistle blower is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry by an appropriate authority or in a court action.
B. To be protected by the provisions of this chapter, a citizen of the Commonwealth who discloses information about suspected wrongdoing or abuse shall do so in good faith and upon a reasonable belief that the information is accurate. Disclosures that are reckless or that the citizen knew or should have known were false, confidential by law, or malicious shall not be deemed good faith reports and shall not be protected.
C. Any citizen whistle blower disclosing information of wrongdoing or abuse under this chapter where the disclosure results in a recovery of at least $5,000 may file a claim for reward under the Fraud and Abuse Whistle Blower Reward Fund established in § 2.2-3014.
D. Except for the provisions of subsection F of § 2.2-3011, nothing in this chapter shall be construed to limit the remedies provided by the Virginia Fraud Against Taxpayers Act (§ 8.01-216.1 et seq.).
Code of Virginia § 2.2-309. Powers and duties of State Inspector General
The State Inspector General shall have power and duty to:
3. Receive complaints from whatever source that allege fraud, waste, including task or program duplication, abuse, or corruption by a state agency or nonstate agency or by any officer or employee of the foregoing and determine whether the complaints give reasonable cause to investigate;
5. Investigate the management and operations of state agencies, nonstate agencies, and independent contractors of state agencies to determine whether acts of fraud, waste, abuse, or corruption have been committed or are being committed by state officers or employees or independent contractors of a state agency or any officers or employees of a nonstate agency, including any allegations of criminal acts affecting the operations of state agencies or nonstate agencies. However, no investigation of an elected official of the Commonwealth to determine whether a criminal violation has occurred, is occurring, or is about to occur under the provisions of § 52-8.1 shall be initiated, undertaken, or continued except upon the request of the Governor, the Attorney General, or a grand jury;
6. Prepare a detailed report of each investigation stating whether fraud, waste, abuse, or corruption has been detected. If fraud, waste, abuse, or corruption is detected, the report shall (i) identify the person committing the wrongful act or omission, (ii) describe the wrongful act or omission, and (iii) describe any corrective measures taken by the state agency or nonstate agency in which the wrongful act or omission was committed to prevent recurrences of similar actions;
7. Provide timely notification to the appropriate attorney for the Commonwealth and law-enforcement agencies whenever the State Inspector General has reasonable grounds to believe there has been a violation of state criminal law;
8. Administer the Fraud and Abuse Whistle Blower Reward Fund created pursuant to § 2.2-3014;
9. Oversee the Fraud, Waste and Abuse Hotline;
10. Conduct performance reviews of state agencies to assess the efficiency, effectiveness, or economy of programs and to ascertain, among other things, that sums appropriated have been or are being expended for the purposes for which the appropriation was made and prepare a report for each performance review detailing any findings or recommendations for improving the efficiency, effectiveness, or economy of state agencies, including recommending changes in the law to the Governor and the General Assembly that are necessary to address such findings;
14. Assist citizens in understanding their rights and the processes available to them to express concerns regarding the activities of a state agency or nonstate agency or any officer or employee of the foregoing;
15. Maintain data on inquiries received, the types of assistance requested, any actions taken, and the disposition of each such matter;
16. Upon request, assist citizens in using the procedures and processes available to express concerns regarding the activities of a state or nonstate agency or any officer or employee of the foregoing;
17. Ensure that citizens have access to the services provided by the State Inspector General and that citizens receive timely responses to their inquiries from the State Inspector General or his representatives;
If the State Inspector General receives a complaint from whatever source that alleges fraud, waste, abuse, or corruption by a public institution of higher education that is (i) a covered institution as defined by the Restructured Higher Education Financial and Administrative Operations Act (§ 23.1-1000 et seq.) and (ii) classified as a Level 3 institution by the State Council of Higher Education for Virginia, or any of its officers or employees, the State Inspector General shall, but for reasonable and articulable causes, refer the complaint to the internal audit department of the public institution of higher education for investigation. However, if the complaint concerns the president of the institution or its internal audit department, or if the State Inspector General otherwise concludes that his office should investigate the complaint to ensure a comprehensive and fully independent investigation, the investigation shall be conducted by the State Inspector General. The State Inspector General may provide assistance for investigations as may be requested by the public institution of higher education.
The public institution of higher education shall provide periodic updates on the status of investigations, whether they originated internally or were referred by the State Inspector General, and report annually to the State Inspector General on the results of all such investigations.
The State Inspector General shall establish procedures governing the intake and investigation of complaints alleging allegations of fraud, waste, abuse, or corruption by a state agency or nonstate agency or by any officer or employee of a state agency or nonstate agency. Such procedures shall:
- Provide that the State Inspector General, or his designee, shall review each decision to dismiss an allegation reported to the State Fraud, Waste, and Abuse Hotline at the initial intake stage without further investigation.
- Require that (i) investigators of the Office of the State Inspector General directly investigate allegations of serious administrative violations and (ii) other agency internal audit divisions may investigate allegations meeting certain criteria specified by the State Inspector General, only if the internal audit division has demonstrated the ability to conduct investigations in an independent, effective, and timely manner. Criteria may include allegations below a specified dollar threshold.
- Require oversight by the Office of the State Inspector General of all investigations referred to other agencies to ensure quality, timeliness, and independence.
- Develop a process for the regular review of the status of recommendations made by the Office of the State Inspector General as a result of an investigation conducted pursuant to this chapter.
Fraud, Waste and Abuse Reporting
Website. The website for filing a written fraud, waste or abuse complaint to the Office of the State Inspector General is https://www.osig.virginia.gov/program-areas/citizen-services/report-fraud-waste-and-abuse/complaint-form/ . If you have a detailed complaint, this is the medium to use to report it.
Hotline. The confidential Fraud, Waste and Abuse Hotline at 1-800-723-1615. In FY 2020,
- of the 1,509 calls received, OSIG determined 318 met the criteria for fraud, waste or abuse and required a formal investigation.
- The most common allegations received were: Employee misconduct; poor internal policies or noncompliance with an agency’s internal policy; waste of state funds; improper hiring, including violations of state policies; misuse of state-owned vehicles and operating inefficiencies.
- Of the 326 Hotline cases closed, 25 percent were substantiated and 75 percent were unsubstantiated.
IG Administrative Reports
For access to existing Administrative Reports of the Inspector General since 2013 see https://www.osig.virginia.gov/reports/
FY 2020 (ended June 30, 2020) Annual Report by the State Inspector General
For an informative report, see https://www.osig.virginia.gov/media/governorvirginiagov/office-of-the-state-inspector-general/pdf/2021-ADM-001-Fiscal-Year-2020-Annual-Report-to-Governor-Northam-and-General-Assembly.pdf . You will note that business is booming at the IG’s office.
Investigations and Administration Division OIG Investigations Unit FY 2020 Case Summary:
- Cases opened – 51
- Cases closed – 26
- Cases resulting in corrective action recommendations – 2
- Cases referred for prosecution – 6
- Open cases carried over from FY 2019 – 21
- Cases open at the end of FY 2020 – 46