the press and feds are at your door: are you ready? jeffrey l. hunter colorado rocky mountain swana...
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The Press And Feds The Press And Feds Are at Your Door:Are at Your Door:
Are You Ready?Are You Ready?
Jeffrey L. HunterColorado Rocky Mountain
SWANA Conference
October 5, 2007
Is it Press, Agency, or Officer?
Different rules for each Discuss Press, then Agents and Officers
If it is the Press: Do you or your business care about public
image? If not, then you can say: “Go away.” But if you do, you must talk with the reporter.
Always balance before engaging: is risk worth benefit? (Can hurt future or help future)
Five rules of engagement: Develop a Simple Primary Theme. Prepare for Difficult Questions. Be Positive. Write Down and Memorize Important Responses. Bridge to Your Positive Messages and Themes.
Develop a Simple Primary Theme
Allows you to influence the press conference or interview and ensure that you get your message out.
Helps avoid becoming the victim of the interviewer's agenda.
Less likely to be distracted and lose concentration.
Prepare for Difficult Questions; Be Positive
Anticipate the worst, and the most difficult, questions. Minimize the possibility of ambush.
Negative statements do nothing for your image or the image of your company.
Bridge to Your Positive Messages and Themes
Certain words and phrases can be used to transfer from the questioner's agenda to your positive messages and themes.
Examples of bridging words and phrases include: (a) "Yes, but . . ."; (b) "No, but let me explain . . ."; (c) "I don't know about that, but here's what I
do know"; and (d) "What's more important now, however, is
. . ."
Responding "No Comment" Is a No-No
“No comment” is portrayed very negatively. Better alternatives:
(a) "I cannot comment on that now, but I will have plenty to say later";
(b) "I'm here today to talk about the spill and our successful cleanup, not other topics or unfounded allegations"; or
(c) "We will respond to that question at the appropriate time."
Dealing With Stakeouts
Remain positive Ignore their continuous questions. If you smile, wave, wish them well, and
ignore their taunting questions, it is highly unlikely that you will ever see that footage on television.
Off-the-Record Comments-there are none
Reporters use this tactic. Don't fall for it. The information will be attributed to "an unnamed source close to the investigation."
Nothing is ever really off the record.
If It Is An Agency Or An Officer Rules of Engagement Change! Often no choice about responding. You might want to cooperate:
Agencies will be with you forever. Agencies might be neutral before you start the
interaction.
You might want to do minimum required by law: People with warrants are not neutral.
Four methods of access Consent Nonconsensual warrantless inspection Administrative inspection warrant Criminal search warrant
Four methods of access Consent
Agents prefer: consenting may be advisable Note: Emergencies or “Plain View” access
Nonconsensual warrantless inspection Statute must authorize and define search’s
scope “Highly regulated industry” or “Licensing”
exception Might have consented in permit
In both, do ask “why us?”
Four methods of access Administrative inspection warrant
Normally used when access is denied for routine compliance check or when agency receives "written substantiated complaint"
Issued for less than probable cause to believe crime committed
Requires a magistrate's (judge’s) signature Restricted to inspecting or photographing only that
listed in the inspection warrant May be used only to gather evidence for civil
enforcement
Four methods of access
Criminal search warrant Requires “probable cause” to believe that you or your
business has committed a crime Magistrate's (judge’s) signature required
This is not your neutral agency! Agency is at your door because it believes there has
been or is on-going criminal activity Agency is seeking proof to convict a "wrongdoer" Agency is not your friend here, nor is it amenable to
frequently used civil procedures
Responding during criminal investigations
Time is very limited Assemble your defense team immediately Immediately communicate to all employees both
nature of investigation, importance of not interfering with warrants and importance of avoiding false or
misleading statements If possible, send home non-essential personnel
Responding during criminal investigations
When a warrant has been issued, federal and most state laws authorize force to effect it
Interfering with an agent carrying out a warrant can be a serious crime
Relevant statutes provide for jail time (up to several years) for obstruction of agent with warrant
But nothing requires you to do the officers' work Be professional
If you can review the warrant
Determine its scope: are there any limits on areas of access? limits on types of documents? limits on types of activities?
If agents exceed limits, do not obstruct but do advise them, with witnesses present, that they have exceeded the warrant's scope
If agents ask for consent to go beyond the warrant, do not give it without the appropriate high-level approval and all due consideration
Do not give any appearance of consent (not even just silence) if you are not consenting
While the agents are present
GOAL: same record as agents/officers Accompany each and every agent everywhere and take
detailed notes of which documents are taken from where which samples are taken from where which personnel are talked with
When possible, also take photos/ video of activities Involve high-level personnel familiar with the need not to
obstruct, but also to make detailed, accurate observations
Do not freely convey information
If any documents are taken
For every document: without interfering, list each document or set of documents and
list where it is taken from Try to reach agreement to retain copies, or even originals, so
that your business can continue
For confidential documents: If attorney-client documents are taken, note that fact and, in the
presence of witnesses, state your objection If confidential business information is taken, tell agent, in
presence of witnesses, that the documents are protected and cite authority
If physical samples are taken
Through counsel, have an outside consultant take splits, or best approximation of a split
Note or request agent’s or officer’s methodology Note promptly to agency the need for time-
awareness samples must be tested within certain times
If employees are asked questions
Distinguish between management and non-supervisory employees
Rules may differ Management nearly always binds entity and can
refuse to answer without attorney present Under some statutes (e.g., OSHA), non-
supervisory employees can speak to investigators with NO employer representative present
If employees are asked questions
Agents acting under warrant usually have no right to interview employees during search, but they will try and often succeed
Where possible and appropriate, counsel should intercede and advise employees that they are not obliged to speak to or aid the agents Counsel cannot forbid an employee from talking
with agents on his/her own time
If employees are asked questions Arrange discreetly but immediately for each
person to be debriefed by counsel Inform each person that
he or she has Fifth Amendment rights absent a subpoena, he or she may have no obligation
to submit to interviews
Inform each person that he or she has a right to own counsel corporate counsel is not their counsel corporation may/will provide counsel (have policy
ready and address it with each person)
One more way for access: the “AMBUSH INTERVIEW”
Example: covert investigation followed by multiple simultaneous evening visits to employee’s homes
Agents will usually start friendly, in friendly setting, BUT …
No obligation to talk at that point, and Frequently better to talk with attorney and
management first
SURVIVAL IS BEST ARRANGED IN ADVANCE: PREPARE!
Be "inspection ready" You cannot "prepare” when officers arrive
Regular environmental and other audit programs Strong company policy on environmental performance
and other compliance, including: prompt reporting of noncompliance events expeditious corrective actions when needed
Decide in advance to whom counsel will be provided Manual and wallet cards with key points and numbers
Ongoing prerequisites to survival Train company personnel
Policy re “drop-ins and ambushes” Bullet list of who to do what/who to call How to answer: honestly but carefully and do not
guess
Anticipate press interest Develop plan Select and announce spokesperson
Prepare safety orientation Anticipate documentation needs Assign corrective action response team
Safety orientation
Request/require that your safety rules be followed
Provide safety hats and other routine safety items (including films) as for any visitor
Agency personnel do not have to undergo your particular training
can be done for the initial inspection team can be done each day for new inspectors
Develop "ground rules" for agency personnel
Request a schedule of activities Bring requested records/documents to the
inspector if possible/allowed Key staff must accompany inspectors for all field
work and records reviews Key staff will participate in all field inspections Recognize that you may have to ask for a short
"time out" to consult legal counsel Ask for entry, exit and daily exit briefings
Assignment of corrective action response team
Preassign responsibility for correcting any (potential) violations
Remedy violations immediately if possible and inform inspectors as soon as possible
Where remedies require long time frames, begin efforts immediately
At day's end, specifically ask what violations were identified
Questions?
Jeff Hunter 503-727-2265 [email protected]