Whistleblower Policy

Siena College Whistleblower Policy

Introduction

In accordance with the passage of the Non-Profit Revitalization Act of 2013 in New York State, nonprofits must adopt a whistleblower policy to protect from retaliation persons who report suspected improper conduct.

This policy is intended to complement and supplement existing college policies and procedures. It is being created to protect the individual who is making the report from any retaliation. It does not affect any rights, responsibilities or procedures set forth in other College policies addressing misconduct, such as harassment, academic and disciplinary matters, grievances, faculty handbook and other matters as to which there are specific College policies.

Siena College is responsible for the proper use of its resources and the public and private support that furthers the realization of its mission. Siena College is committed to upholding the highest standard of honest behavior, ethical conduct, and fiduciary responsibility with respect to the College funds, resources, and property. It is the policy of Siena College that all members of the community comply with all Siena College, New York State and federal laws, regulations, policies and procedures. Such adherence strengthens and promotes ethical and fair practices and treatment of all members of the College and those who conduct business with the College.

At Siena College decision making responsibilities are disbursed to all levels of the organization. Faculty, employees, trustees and others holding positions of fiduciary duty with the College are obligated to perform their duties in compliance with all applicable laws and College policies and procedures.

The College has developed and implemented internal controls and procedures that are intended to prevent and deter wrongful conduct. There may, nonetheless, be both intentional and unintentional violations of laws, regulations, policies and procedures. The College has a responsibility to investigate and, where appropriate, report allegations of suspected wrongful conduct.

This policy governs reporting and investigations of allegations of suspected wrongful conduct. The College encourages employees, faculty, students, trustees, volunteers and others to use the guidance set forth in this policy to report any and all allegations of suspected wrongful conduct.

This policy provides for confidentiality and confirms that any person who makes a good faith report of suspected wrongful conduct or who participates in the investigation of such report will be protected from retaliation by the College or anyone within its control.

Any allegations of wrongful conduct which may result in disciplinary action against a faculty member, employee, volunteer or trustee shall be coordinated with the applicable policies. In all cases, the College shall exercise its discretion in determining when circumstances warrant investigation and, in compliance with this policy, the appropriate investigative process to be employed.

This policy shall be distributed to all trustees, officers, employees and volunteers of the College.

Finally, this policy is subject to the direct oversight of the Audit Committee of the Board of Trustees in carrying out its responsibility under its Charter to receive regular reports on calls made to the hotline and the Whistleblower Committee’s responses.

Definitions

For purposes of this policy the following terms shall have these meanings:

A. “College Resources” shall include, but not be limited to the following, whether owned by or under management or control of the College:

Cash and other assets, tangible or intangible, real or personal property;
Receivables and other rights or claims against third parties;
Intellectual property rights;
Facilities and the rights to use the College facilities;
Siena College’s name, associated symbols, logos or service marks;
College records, including student records.

B. “Wrongful Conduct” is any action or activity by an employee (faculty, staff or administrator), volunteer or trustee that is undertaken in the performance of such individual’s official duties or with the appearance or representation that it is undertaken in the performance of official duties, whether or not the action or activity is within the scope of his or her employment or duty, and that is:

Violation of applicable state and/or federal laws and regulations
A serious violation of College policy
Use of College property, resources or authority for personal gain or other non-college related purpose
Is an unauthorized invasion, alteration or manipulation of records and computer files
Is a significant threat to the health or safety of members of the College community

C. “Good Faith Report” is defined in this policy to be an allegation of wrongful conduct made by an individual who believes that wrongful conduct may have occurred. However, an allegation is not Good Faith if it is made with the reckless disregard for and willful ignorance of facts that would disprove the allegation.

D. “Whistleblower” is the term for a person making the report. The Whistleblower is a reporting party, not an investigator, fact finder or the person who determines the corrective or remedial action.

E. “Whistleblower Committee” directs the investigation and shall consist of the College Counsel and College Risk Officer. They will include additional parties deemed essential to the investigative process as necessary. At no time will this include anyone who has been named in the report.

Reporting Allegations of Suspected or Known Improper Conduct

A. Filing a Report

Any person who has a good faith belief that there has been any violations of law, breaches of policy or allegations of wrongful conduct pertaining to the College may file a report. Reports should focus on facts, and avoid speculations and drawing conclusions. Including as much specific information as possible to substantiate the concern will facilitate the evaluation of the nature, extent and urgency of the preliminary investigative procedures.

Employees of the College should report violations of law, breaches of policy or allegations of wrongful conduct using the proper channels in the College for such complaints. They may also report to their immediate supervisor or as an alternative, the employee may take his or her concern directly to the Risk Officer who has the authority to review the alleged wrongful conduct on behalf of the College. Or they may use the Whistleblower Hotline to report (See below).

The College recommends reports from those persons who are not employees of the College be referred to the Risk Officer. Or they may use the Whistleblower Hotline to report (See below).

Whistleblower Hotline

The College’s Whistleblower Hotline is available to any person wishing to report suspected wrongful conduct, even anonymously. The Hotline does not replace or supersede existing reporting methods. Instead, the Hotline is intended to offer an additional means of reporting in situations in which the individual making the report is unable or unwilling to use the existing procedures and provides a method of reporting issues anonymously. The Hotline can be accessed as follows:

1-855-645-1383 (toll free)

www.siena.ethicspoint.com

While not intending to preclude anyone from filing good faith reports, the Hotline is to be used for serious misconduct and violations of College policy, such as fraud, stealing, misappropriation of College property or assets, false claims to the Government, as well as other serious misconduct such as child sexual abuse or exploitation or other serious acts that involve safety to individuals or property. The College’s ability to respond to serious, urgent complaints is diminished if the hotline is flooded with more mundane matters, such as a dispute with a supervisor or other matters that are regularly handled by another College department with the appropriate resources and expertise (for example, Human Resources, Human Rights Committee, Equal Opportunity and Employee Relations Specialists/Title IX Coordinator/Section 504 and ADA Policy,)

B. Reporting to the Whistleblower Committee

1. Employees in supervisory roles who receive a report alleging wrongful conduct shall promptly report the matter to their supervisor and/or the Whistleblower Committee who will report it to the appropriate College official. Such supervisors are charged with exercising appropriate judgment in determining which matters can be reviewed under their authority or referred to a higher level of management or to the Whistleblower Committee. The supervisor must document an oral report with a written summary of the oral report.

C. Reporting to the Office of the President and Others

1. The Whistleblower Committee shall have principal responsibility for reporting to the President and senior management, and to the Audit Committee of the Board of Trustees. The Whistleblower Committee shall consult with those who will investigate allegations of improper misconduct.

2. In some instances, a funding entity or regulatory agency may require a report of an allegation of wrongful conduct. The Whistleblower Committee, in consultation with the administrators of the affected area, will determine the nature and timing of such communications.

3. In the event that any person with a reporting obligation believes that there is a conflict of interest on the part of the person to whom the allegations of suspected wrongful conduct are to be reported, the report of wrongful conduct shall be made to the next higher level of authority.

D. Confidentiality

1. Whistleblowers frequently make their reports in confidence. To the extent possible within the limitations of law and policy and as determined by the need to conduct a competent investigation, confidentiality shall be maintained. Whistleblowers should be cautioned that their identity may become known for reasons beyond the control of the investigators or College administrators. Whistleblowers should be prepared to be interviewed by the investigator. If there is self-disclosure, the College is no longer obligated to maintain confidentiality. Some acts or omissions that are reported as wrongful conduct may have to be reported to law enforcement authorities pursuant to mandatory reporting laws or other rules and regulations imposed upon the College. Accordingly, it may not be possible to guarantee that confidentiality will be maintained at all times.

2. The identity of the subject(s) of the investigation shall be maintained in confidence subject to the same limitations described above.

Investigating Alleged Wrongful Conduct

A. A number of departments within the College have responsibility for routinely conducting investigations of certain types of allegations of wrongful conduct and have resources and expertise to apply such purposes. These departments include Public Safety and Human Resources. In addition, other College parties may become involved in investigations of matters based on their area of responsibility or expertise, for example, risk management, research administration, academic affairs, equal opportunity and employee relations specialists.

B. The Whistleblower Committee shall coordinate the investigation and will enlist the efforts of the appropriate department within the College to conduct the investigation or may solicit investigative services outside of the College. In addition, the Whistleblower Committee shall:

Ensure that all appropriate reporting occurs to the Office of the President, Chair of the Audit Committee, funding and regulatory agencies, Whistleblowers, and others, as necessary;
Ensure that all appropriate administrative and senior officials are apprised of the allegations, as necessary;
Ensure that appropriate resources and expertise are allocated to effect a timely, comprehensive and objective investigation;
Ensure that there are no conflicts of interest on the part of any party involved in specific investigative units;
Monitor the progress of the investigation; and
Coordinate and facilitate as an advisor in determining the corrective and remedial action to be taken. The appropriate College official shall determine the corrective and remedial action to be taken.

C. Each investigative unit shall conduct its investigation in accordance with applicable laws and established procedures within its discipline.

D. All College faculty members, employees and trustees have a duty to cooperate with the investigations conducted under this policy.

E. During an investigation an employee may be placed on administrative leave or investigative leave, with or without pay, when it is determined that such a leave would serve the best interests of the employee, or the College or both and the granting of the leave is consistent with applicable personnel policies.

F. Investigative Responsibilities

The Vice President for Finance and Administration is responsible for investigations involving allegations known or suspected misuse of College Resources, including fraud, financial irregularities and the financial consequences of other matters under investigation. If criminal activity is reported or detected, consultation with Public Safety will determine whether the police should be involved.
Public Safety is responsible for investigations of known or suspected criminal acts within its jurisdiction. In cases involving criminal concerns, Public Safety should work in support of the police investigation.
Procedures for investigations of personnel matters, scientific misconduct and student misconduct are established by Human Resources, Research Administration, the Office of the Vice President for Student Life and the Office of the Vice President of Academic Affairs.

For information on roles, rights and responsibilities of whistleblowers, investigation participants, subjects and investigators see Exhibit A.

Protection Against Retaliation

Whistleblowers and others who make protected disclosures in good faith shall not be retaliated against in any manner, with the intent of adversely affecting the terms or conditions of employment or enrollment (including, but not limited to, threats or physical harm, loss of job, adverse or punitive work assignments or impact on salary or wages) and shall be protected from such retaliation by the College. This protection from retaliation is not intended to prohibit supervisors or administrators from taking action, including disciplinary action, in the usual scope of their duties and based upon valid performance-related factors. Whistleblowers and others who believe they are the subject of prohibited retaliation should promptly report such actions to the College Counsel.

Sanctions for False Claims

A Whistleblower who makes a claim under this policy in bad faith, or knows or has reason to know that such claim is false or materially inaccurate, shall be subject to disciplinary sanctions, including reprimand, suspension, demotion or, under appropriate circumstances, termination (including loss of tenure, if applicable). Any disciplinary sanctions shall follow the applicable handbook procedures. In appropriate cases, the College may also impose a fine on the Whistleblower equal to the costs of conducting the investigation.

Administration and Oversight of Policy

The College has designated the Risk Officer to act as administrator of this policy. Such individual shall report any actions taken pursuant to this policy to the Audit Committee.

The oversight of this policy is subject to the direct oversight of the Audit Committee of the Board of Trustees. The Chair of the Audit Committee shall receive reports of calls made to the hotline and the Whistleblowers Committee responses on a monthly basis. The Audit Committee shall receive periodic reports of all calls and actions taken. The Audit Committee may engage outside legal, accounting, or other advisors, as appropriate, to investigate complaints under this policy.

Status and Amendment of Policy

The College reserves the right to amend this policy from time to time as the interests of the College may require. This policy is intended as guidance for the reporting and investigating of allegations of suspected or actual wrongful conduct. This policy does not create, nor should it be viewed as creating, a contractual obligation between the College and any faculty, employee, trustee, Student, Contractor, visitor/guest or any other person.

College Counsel

Rose Seggos

518-783-2302

rseggos@siena.edu

Risk Officer

Lori Ford Ehrensbeck CPA

518-782-6774

lehrensbeck@siena.edu

Additional Information: Inquires regarding this policy should be referred to the College Counsel at (518) 782-6783 or the Risk Officer at (518) 782-6774.

Policy approved by the Board of Trustees on June 20, 2014

Exhibit A

Roles, Rights and Responsibilities of Whistleblowers, Investigation Participants, Subjects and Investigators

A. Whistleblowers

Whistleblowers provide initial information related to good faith belief that there is wrongful conduct.
Whistleblowers shall not obtain evidence they do not have the right to access. Whistleblowers are reporting parties, not investigators.
Whistleblowers must be truthful and cooperative with the Whistleblower Committee, investigators or others to whom they make the report of alleged wrongful conduct.
Whistleblowers have a right to be informed of the disposition of their disclosure.

B. Investigation Participants

Investigation participants have a duty to cooperate fully with the College investigators.
Participants should not discuss or disclose the investigation or their testimony with including, without limitation, others who are reasonably likely to be investigation participants, as well as individuals not connected to the investigation. Under no circumstances shall a participant discuss with the Investigation Subject (defined below), or other witnesses, the nature of the evidence requested or provided or the testimony given to the investigator unless agreed to in advance by the investigator.
The participants’ confidentiality will be maintained to the extent possible within the legitimate needs of law and the investigation and subject to the provision of this policy.
Participants are entitled to protection from retaliation on account of their participation in an investigation to the extent that Participants cooperate in a truthful, cooperative and candid manner.

C. Investigation Subjects

A Subject is a person who is the focus of an investigation.
Subjects should be informed of the allegations at the outset of a formal investigation and have the opportunities for input during the investigation.
Subjects should cooperate with the investigators to the extent their cooperation will not undermine protection against self-incrimination under federal law.
Subjects have the right to consult with person(s) of their choice, including an attorney.
The College Counsel may provide the Subject with information concerning the matters relating to the investigation. The College Counsel represents the College’s interests; accordingly, any information shared may not be subject to the attorney-client privilege.
Subjects shall not interfere with an investigation. They shall not withhold, destroy or tamper with evidence or influence, coerce or intimidate witnesses.
The standard of evidence to sustain an allegation of wrongful conduct is a preponderance of the evidence.
Subjects shall be informed of the outcome of the investigation.
Any disciplinary or corrective action taken against the Subject resulting from the investigation under this policy shall conform to the applicable academic or personnel conduct and disciplinary procedures.

D. Investigators

Investigators are those persons authorized by the College to conduct fact finding and analysis of cases of alleged wrongful conduct.
Investigators derive their authority and access rights from College policy.
Investigators are competent to conduct the investigation.
All Investigators shall be independent and unbiased in fact and appearance. In addition, they have a duty to be fair, objective, thorough, ethical and observant of legal and professional standards.

An investigation shall be undertaken if preliminary consideration establishes that: (a) the allegation, if true constitutes wrongful conduct and (i) the allegation contains specific information about the conduct, event, perpetrator and/or victim, or (ii) the allegation has or directly points to corroborating evidence capable of being pursued.