REPORT TO THE GOVERNOR OF THE COMMONWEALTH OF VIRGINIA SPEAKER OF THE HOUSE OF DELEGATES COMMONWEALTH OF VIRGINIA PRESIDENT PRO TEMPORE OF THE SENATE COMMONWEALTH OF VIRGINIA MAJORITY LEADER OF THE SENATE COMMONWEALTH OF VIRGINIA MINORITY LEADER OF THE SENATE COMMONWEALTH OF VIRGINIA MAJORITY LEADER OF THE HOUSE OF DELEGATES COMMONWEALTH OF VIRGINIA MINORITY LEADER OF THE HOUSE OF DELEGATES COMMONWEALTH OF VIRGINIA CONCERNING POLICIES, PROCESS, AND PROCEDURES EMPLOYED BY THE OFFICE OF THE STATE INSPECTOR GENERAL DURING ITS INVESTIGATION OF THE VIRGINIA. PAROLE BOARD’S HANDLING OF THE VINCENT MARTIN MATTER, PURSUANT TO HB 1800 (2021) By: NIXON PEABODY LLP Travis Hill Tina Sciocchetti ; Adam Tarosky Michal Ovadia Date: June 14, 2021TABLE OF CONTENTS Page INTRODUCTION.. BACKGROUND. . nee A. History of the Office of the State Inspector General and its Authority. 1. Code of Virginia... en 2. The Hotline Manual and Executive Order 52... 3. The Association of Inspectors General Green Book... B. Media Coverage or ee a a C. House Bill 1800 and Selection of the Commonwealth's Independent Investigator. u D. Relevant Parties... ' il EXECUTIVE SUMMARY. 5 15 ‘A, The Report Dated July 28, 2020, is the Sole OSIG Parole Board Report... sevnenesnne 1S B, The OSIG Parole Board Report Was Not Influenced by Outside Actors... 16 C.. The Lead OSIG Investigator Was Most Likely Biased. D. OSIG Failed to Conduct a Thorough Investigation... i E, OSIG Appropriately Consulted Counsel Regarding Legal Issues F, OSIG Conducted a Thorough Editing Process of its Report, G.OSIG Should Have a General Counsel INVESTIGATION. ‘A. Scope of the Investigation B. Witness Privacy and Confidentiality. C. Interviews Conducted 1D. Materials Reviewed. E. Experts Consulted... FACTUAL SUMMARY. ‘A. Vincent Martin Parole Board Review . 1. The VPB Discretionary Parole Process. 31 2. The Vincent Martin Parole Review and Decision... 34 3. The VPB’s Internal Review 40 B, OSIG Investigation of the Parole Board's Vincent Martin Decision. Al 1, Evidence Collection. 45 2. Interviews... 49 51 3. Conclusion of OSIG's InvestigationC. Drafting Process and Release of the OSIG Parole Board Report 1. Barly Drafts nem 2. Draft Report Becomes Executive Summary .. a 3. Final Edits and Release of the OSIG Parole Board Repor... 59 4. Lack of Involvement by the Office of the Governor. 63 65 CONCLUSION...‘TABLE OF AUTHORITIES Page(s) Cases Moschetti v. Westfall, Case No. CL21000947-00... 29 Statutes Freedom of Information Act .. passin Va. Code § 2.2-308 Va. Code §§ 2.2-309(A)(3), 5, 6, 9 and 30%(C) 6 Va. Code § 52-8.1... 6 Va, Code § 2.2-310.....0 oa Va. Code § 19.2-11.01(B)(¥) sn . 33 Va. Code § 53.1-136 . 13 Va. Code § 53.1-136(3)(¢) 33 Va. Code § 53.1-155(A). Va. Code § 53.1-155(B). 33, 34 Other Authorities Executive Order 52... 6,7, 52 State Fraud, Waste and Abuse Hotline Policies and Procedures Manual. 7,8,45 The Green Book, Quality Standards for Offices of Inspector General. 9 House Bill 1800 (2021).. MW sneer dy 28, 26 House Bill 1800 (2021), Amendment 2 iiINTRODUCTION ‘The Office of the State Inspector General (“OSIG”) aims to maximize the public’s confidence and trust in state government by promoting and practicing the highest level of integrity, efficiency, effectiveness, and economy." In 2020, the public’s confidence in certain decisions made by the Virginia Parole Board (the “VPB") was shaken. The VPB’s April 2020 vote to grant parole to Vincent Martin (Mr. Martin”) was one such decision. This decision led to immediate backlash from the victim's family, the Richmond Commonwealth’s Attorney, law enforcement, and public officials, Ultimately, questions arose as to whether the VPB followed proper policies and procedures, particularly as it relates to notification of victims and Commonwealth’s Attorneys. In April 2020, OSIG received multiple complaints concerning the VPB’s actions through the State Fraud, Waste, and Abuse Hotline (“Hotline”). In response, OSIG opened an administrative Hotline investigation into the VPB’s compliance with applicable code, policies, and procedures in its decision-making process.’ OSIG stated from the beginning of its investigation that it would not investigate whether the VPB's parole decisions were appropriate OSIG began its investigation in May 2020 and concluded its investigation with the issuance of an official report in July 2020, followed by official recommendations in September 2020. The report substantiated four allegations that the VPB failed to meet statutory or procedural requirements in its decision to grant Mr. Martin parole, OSIG found that the VPB did not initially provide notification to the Richmond Commonwealth's Attorney within the statutory timeframe, did not endeavor diligently to contact victims prior to making the decision to release " Office of the State Inspector General Vision Statement, wow osig virginia gov 2 OSIG received complaints concerning six additional parole decisions and conducted investigations of those cases, fas well. However, those matters are beyond the scope of this ReportMr. Martin, did not allow the victim’s family or other interested parties to meet with the VPB in accordance with VPB policy and procedures, and Former VPB Chair Adrianne Bennett (“Former Chair Bennett”) did not cause board meeting minutes to be kept in accordance with the Code of Virginia? As dictated by the scope of our review, as defined in the statutory language establishing this independent investigation, we make no determination as to whether OSIG’s findings were appropriate, This Report solely focuses on the appropriateness of the policies, process, and procedures employed by OSIG during its Hotline investigation of the VPB Martin matter. As part ofa thorough investigation, our team reviewed the evidence, of lack thereof, supporting each of OSIG’s findings, as well as the investigative steps OSIG took to develop such evidence. We also reviewed the VPB decision-making process in Mr. Martin’s case, Such steps \were taken to render a fully informed decision on the appropriateness of the OSIG investigation, not to determine whether OSIG’s findings or the VPB's parole decision were correct. Upon a thorough review of the facts, Nixon Peabody reports to the Commonwealth of ‘Virginia that there is only one official OSIG report concerning the VPB Martin matter and that is the six-page report issued July 28, 2020 (“OSIG Parole Board Report”). Previous versions of the report were mere drafts containing allegations edited from the final report after OSIG determined that they could not be substantiated. Moreover, OSIG’s investigation and findings were not influenced by any outside actors, including the Office of the Governor and the Secretary of Public Safety and Homeland Security. We find that OSIG properly initiated its investigation by following standard policies and procedures, and the editing process employed by OSIG in drafting the report was thorough. * QSIG Parole Board Report, July 28, 2020.However, OSIG's investigative process and methods employed during the investigation phase were not of the quality or substance necessary to conduct a thorough review. Due to the limited scope of our review, Nixon Peabody makes no determination as 10 whether OSIG’s findings and recommendations were appropriate, only that the investigation should have been more thorough. This Report details OSIG’s investigative shortcomings and makes recommendations for increased training and better adherence to professional best practices. Furthermore, we find it most likely that OSIG's lead investigator was impaired by personal bias and that this bias likely had an impact on the tone and substance of the OSIG Parole Board Report. Internal communications, the manner in which the investigation was conducted, the content of witness interviews, and the tone of the report, all indicate a high likelihood that the lead investigator was motivated to see Mr. Martin returned to prison and such motivation likely impacted the investigation and report. We recommend increased training on bias awareness and improvements to internal controls, in order to better identify potential conflicts of interest and impartiality. Nixon Peabody also recommends that OSIG receive funding for its own general counsel The Office of the Attomey General (“OAG”) represents OSIG and most of the agencies OSIG investigates, including the VPB. To avoid even the appearance of impropriety and potential conflicts, OSIG should have its own general counsel.BACKGROUND In February 2021, details of an earlier draft of the OSIG Parole Board Report were shared with the press and made public. The earlier draft was significantly longer and contained allegations of misconduct against the VPB not found in the official report issued July 28, 2020. As a result of the discrepancies, questions arose regarding the quality of OSIG’s investigation and whether it was influenced by outside actors, most specifically the Office of the Governor and the Secretary of Public Safety and Homeland Security. In response, legislation was passed authorizing an independent investigation into the policies, process, and procedures employed by OSIG during its investigation of the VPB’s handling of the Vincent Martin matter. Subsequently, on April 24, 2021, Nixon Peabody LLP (“Nixon Peabody”) was retained by the Commonwealth of Virginia to conduct this independent investigation.‘ The investigation team consists of Nixon Peabody Partner Travis Hill, assisted by Partners Tina Sciocchetti and Adam Tarosky, and Associate Michal Ovadia. The sole purpose of our independent investigation was to determine whether OSIG followed proper policies, process, and procedures in conducting its investigation of the VPB Martin matter, and report our findings to the Governor and leadership of the General Assembly. We do not address whether OSIG had jurisdiction to investigate the VPB, whether OSIG’s findings were appropriate, whether the VPB violated any code or policies in its parole deci or whether the VPB’s parole decisions were appropriate, as they lie beyond the scope of our mandate, House Bill 1800 (2021), Amendment 2. + Independent Investigator Appointment Letter, executed April 24, 2021 4A. History of the Office of the State Inspector General and its Authority The General Assembly established the Office of the State Inspector General (“OSIG”) by statute in 2012. OSIG is led by the State Inspector General (“Inspector General” or “IG”), who is appointed to a four-year term by the Governor, subject to confirmation by the General Assembly. ‘The Inspector General is required to have at least five years of demonstrated experience or expertise in accounting, public administration, or audit investigations as a certified public accountant or a certified internal auditor. The Inspector General may be removed from office by the Governor for malfeasance, misfeasance, incompetence, misconduct, neglect of duty, absenteeism, conflict of interests, or failure to carry out the policies of the Commonwealth as ‘established in the Constitution or by the General Assembly. In case of removal, the Governor is required to state publicly in writing, at the time of removal, the reasons for removing the Inspector General.’ The current Inspector General is Michael Westfall (“Inspector General Westfall Fully staffed, OSIG consists of forty full-time personnel. In addition to the Inspector General, there are two Deputy Inspectors General, who report directly to the Inspector General. One deputy oversees investigations and administration, while the other deputy oversees the auditors and behavioral health and developmental services inspections. Reporting directly to the Deputy Inspector General for Investigations and Administration is the Chief of Investigations, who oversees five Special Agents conducting criminal investigations. In addition to the Special ‘Agents, the Chief of Investigations also oversees the Investigations Manager. In turn, the Investigations Manager oversees four Senior Investigators, who screen Hotline complaints and conduct administrative Hotline investigations. © Va. Code § 2,2-308.1. Code of Virginia Pursuant to the Code of Virginia, the powers and duties of OSIG include the following: Receive complaints from whatever source that allege fraud, waste, including task or program duplication, abuse, or corruption by a state ageney or nonstate agency or by any officer or employee of the foregoing and determine whether the complaints give reasonable cause to investigate. 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 Govemor, the Attorney General, or a grand jury. 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 wrongfal act or omission, (ii) deseribe the wrongful act or omission, and (iii) describe any corrective measures taken by the state agency or nonstate ageney in which the wrongful act or omission was committed to prevent recurrences of similar actions. Oversee the Fraud, Waste and Abuse Hotline. ‘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. 2, The Hotline Manual and Executive Order 52 In addition to the Code of Virginia, the powers and authority of OSIG in relation to the Hotline are outlined in Executive Order $2 (“EO 52”) and the State Fraud, Waste, and Abuse Hotline Policies and Procedures Manual (the “Hotline Manual”). EO 52, issued by former 7 Va. Code §§ 2.2-309(A)(3), 5,6, 9 and 309(C).Govemnor Robert McDonnell in October 2012, expanded the ability of persons to make Hotline complaints from state employees to “all citizens of the Commonwealth."* EO 52 also reiterates the duties of OSIG, as described in the Code of Virginia, and states the following regarding OSIG’s investigative authority: All executive branch agencies of the Commonwealth shall cooperate with and assist the State Inspector General and all investigators to the fullest extent. During the course of a Hotline investigation, investigators will have access to electronic and paper files, records, and documents, as well as personnel, facilities, property, and any other things necessary to conduct an investigation (Code of Virginia 2.2-310). This includes access to electronic and paper files maintained by the Virginia Information Technologies Agency (VITA) for other executive branch agencies as well as access to administrative investigative reports generated by an agency's in- house investigative unit that are germane to the hotline investigations.” ‘The Hotline was originally established in October 1992 as the State Employee Fraud, Waste and Abuse Hotline, and operated under the Department of the State Intemal Auditor (subsequently, the Division of State Internal Audit). With the creation of OSIG in 2012 and the expansion of Hotline access to all citizens, “Employee” was removed from the title and the Hotline and its investigations were transferred to the new agency. ‘The Hotline Manual serves as OSIG’s official guide for evaluating Hotline complaints and conducting investigations. The Hotline Manual covers all aspects of a Hotline investigation, beginning with intake and assessment of complaints.!' Complaints are initially screened by a Senior Hotline Investigator. There is also a second-level screening conducted by * Govemor MeDonnell Executive Order 52, p. 1 9 Thid. at p. 2. °° Stave Fraud, Waste and Abuse Hotline Policies and Procedures Manual (“Hotline Manual”), Offce ofthe State Inspector General See generally Hotline Manual, Policy §§ 1002,1-1002.7: Call Procedures 7the Investigations Manager to determine the type of investigation warranted.'” If the allegation involves an Internal Audit Director (“IAD”) or IAD staff, a state agency head, cabinet secretary, ‘or at-will employee, the Investigations Manager in conjunction with the Deputy Inspector General, determines the appropriate course of action. Once the decision is made to investigate, the Inspector General is briefed on the matter. The portion of the Hotline Manual outlining the intake review process notes that “[a]ll allegations will be reviewed by all OSIG staff objectively and without bias.”!? The Hotline Manual also offers suggestions for structuring a Hotline investigation, including methodology for gathering evidence, and conducting and documenting interviews." According to the Hotline Investigations should be conducted in a diligent, objective, ethical, timely and complete manner, and reasonable steps should be taken to ensure that sufficient relevant evidence is collected; pertinent issues are sufficiently resolved; and appropriate criminal, civil, contractual or administrative remedies are considered.'* ‘The Hotline Manual, referencing the Association of Inspectors General's Principles and Standards for Offices of Inspector General (the “Green Book”), also provides the following guidance on how to analyze evidence and reach a conclusion: ‘The AIG’s Quality Standards for Investigations requires sufficient, competent and relevant evidence to be obtained to afford a reasonable basis for the investigative findings and conclusions. Evidence is sufficient if there is enough to support the report’s findings. Evidence used to support findings is relevant if it has logical, sensible relationships to those findings. Evidence is competent to the extent that it is consistent with fact (valid).'® " Hotline Manual, Policy § 1002.5: Post-Sereen Hotline Calls Process "8 Hotline Manual, Policy § 1002.6: Calls Requiring Special Handling (Exceptions). "4 Hotline Manual, Policy 8§ 1006.4 through 1006.8. 's Hotline Manual, Policy § 1006.4: Structure of a Hotline Investigation. '© Hotline Manual, Policy § 1006.10: Reaching a Conclusion Based on Evidence. 83. The Association of Inspectors General Green Book The Association of Inspectors General is a professional organization aimed at advancing professionalism, accountability, and integrity in inspectors general offices. To promote generally accepted inspector general principles and standards, the association developed a guidebook, known as the Green Book. The Green Book, referenced throughout the Hotline Manual, delineates principles, quality standards, and best practices generally applicable to federal, state, and local offices of inspectors general.'7 Among the quality standards included in the Green Book are maintaining independence, ensuring efficient and effective deployment of office resources, utilizing appropriately qualified staff, and safeguarding privileged and confidential information.'* The Green Book also includes quality standards for investigations, including three general standards—staff qualifications, independence, and due professional care. In particular, the Green Book defines due professional care as follows: Exercising due professional care means using good judgment in choosing investigation subjects and methodology as well as creating accurate and complete investigation documentation and investigative reports. Due professional care presumes a working knowledge consistent with investigation objectives.'” The quality standards for investigations also consist of advisory guidelines for investigative methodologies, including the collection and analysis of sufficient, competent, and relevant evidence to afford a reasonable basis for investigative findings and conclusions.*” "association of Inspectors General's Principles and Standards for Offices of Inspector General, Quality Standards for Offices of Inspector General (the “Green BOOK"), P. 1. 8 The Green Book, Quality Standards for Offices of Inspector General at pp. 8, 12, 13,20. Did. at p. 26. 2" Tbid. at pp. 30.Lastly, all OSIG staff members are bound by a Code of Ethics, including a requirement that employees “exhibit the highest level of independence and integrity in the performance of all duties,” “demonstrate a commitment to professionalism and diligence in the performance of all uties,” and “maintain appropriate confidentiality of sensitive information and records obtained by OSIG.! B. Media Coverage ‘Media coverage surrounding Mr. Martin’s parole began in or around April 2020, with various news reports on the widespread opposition to the VPB’s decision to grant Mr. Martin parole. In the weeks that followed, there were questions raised about whether the VPB had followed its own policies and procedures in granting Mr. Martin parole, specitically with regard to whether the VPB afforded the vietim’s family an adequate opportunity to be heard prior to the \VPB’s vote. In May 2020, the press reported on OSIG’s opening of an investigation into the VPB’s handling of Mr. Martin’s case and the fact that Mr. Martin’s scheduled release date of May 11, 2020, had been placed on a temporary, thirty-day hold. ‘A heavily redacted version of the OSIG Parole Board Report was publicly released pursuant to @ Freedom of Information Act (“FOIA”) request at the end of July 2020. Although specific allegations were redacted, it was reported that OSIG had substantiated certain complaints against the VPB. The redactions led to public speculation as to what the substantiated allegations entailed. The VPB publicly refuted OSIG’s findings and placed a written response on its website. In early August 2020, members of the General Assembly received an unredacted 2 Code of Ethics, Office ofthe State Inspector General, Commonwealth of Virginia (effective April 30, 2021). We note that the version of the Code of Ethics that was in effect atthe time of OSIG's investigation into the VPB Martin ‘matter included the language cited herein. 10copy of the OSIG Parole Board Report. Shortly thereafter, the report was publicly released and widely covered in the news. Media coverage spiked again in February 2021, when a longer, draft version of the OSIG Parole Board Report containing additional allegations, was provided to the press and made public, When asked about the contents of the draft report, the Govenor’s Office responded that they had never seen it. In the wake of speculation surrounding the origin and validity of this draft report, there were public calls for a new investigation into the VPB’s alleged wrongdoings. Subsequently, a surreptitious audio recording of a meeting between senior members of the Governor's Office and OSIG regarding the OSIG Parole Board Report was provided to the press and published in April 2021. In addition, OSIG’s lead investigator in the VPB Martin matter was suspended, filed a whistleblower petition in Richmond Circuit Court, and was ultimately terminated from OSIG, in March 2021. All of these developments received extensive media coverage. From the time the draft version of the report first became public in February 2021, up through the appointment of Nixon Peabody and the initiation of the independent investigation in late April 2021, there was consistent media coverage of this matter throughout the Commonwealth, C. House Bill 1800 and Selection of the Commonwealth’s Independent Investigator On March 31, 2021, Governor Northam proposed language to amend House Bill 1800 (2021) in the Commonwealth's 2021—22 budget to appropriate $250,000 for the purpose of funding an independent, third-party investigation of OSIG’s policies, process, and procedures employed during its investigation of the VPB’s handling of the Vincent Martin matter. The proposed amendment directed that the OAG, in consultation with the Office of the Governor, the ulSpeaker of the House of Delegates, and the President pro tempore of the Senate, secure an investigator to conduct the investigation. The amendment also directed OSIG and the VPB to cooperate fully in the investigation, and it reinforced the confidentiality of records, in addition to noting that materials generated during the course of the independent investigation would be exempt from disclosure under the Virginia Freedom of Information Act. Finally, the proposed amendment required that the investigator submit a written report of findings and any recommendations to the Governor, Speaker of the House of Delegates, Majority Leader and Minority Leader of the House of Delegates, President pro tempore of the Senate, and Majority Leader and Minority Leader of the Senate, no later than June 15, 2021 ‘On April 7, 2021, the General Assembly adopted the proposed language and, on April 13, 2021, Governor Northam signed HB 1800, as amended, into aw. Subsequently, the OAG was contacted by law firms expressing interest in conducting the independent investigation. The OAG also contacted additional law firms with experience in internal investigations to solicit proposals. The Office of the Governor, the Speaker of the House of Delegates, and the President pro tempore of the Senate were given the opportunity to make recommendations, as well, On April 15, 2021, Nixon Peabody submitted a written proposal to the OAG for consideration as the independent investigator in this matter. On April 23, 2021, the OAG, in consultation with the Office of the Governor, Speaker of the House of Delegates, and the President pro tempore of the Senate, selected Nixon Peabody to conduct this independent, third-party investigation, and an engagement letter was sent to the attention of Nixon Peabody Partner Travis Hill. On April 24, 2021, the engagement letter was executed and retumed to the OAG. 12D. Relevant Parties Office of the State Inspector General (“OSIG"): OSIG is responsible for investigating allegations of fraud, waste, abuse, and corruption in executive agencies of the Commonwealth of Virginia. In 2020, OSIG conducted an administrative Hotline investigation of the VPB’s handling of the Vincent Martin parole case. OSIG’s investigation of the VPB is the subject of Nixon Peabody's review. Virginia Parole Board (“VPB”): The VPB is responsible for making parole determinations, as well as investigations and reports with respect to any commutation of sentence, pardon, reprieve or remission of fine, or penalty when requested by the Governor.” ‘The VPB voted to grant Mr, Martin parole in April 2020. Subsequently, the VPB Martin matter was the subject of an OSIG administrative Hotline investigation. Office of the Governor: The Governor is the chief executive officer of the Commonwealth of Virginia. The Office of the Govemor consists of the executive staff and cabinet secretaries, including the Secretary of Public Safety and Homeland Security. The Inspector General is appointed by the Governor and reports to the Governor's Chief of Staff. The Secretary of Public Safety and Homeland Security oversees the VPB. Office of the Attomey General (*OAG”): The Attomey General is the chief legal officer of the Commonwealth of Virginia, Individual Assistant Attorneys General, referred to as agency eps, ate specifically assigned to provide legal guidance to state agencies, such as OSIG and the PB. Both OSIG and the VPB received extensive legal guidance from their respective agency reps in relation to OSIG's investigation of the VPB. Va. Code § $3.1-136.The agencies listed above and their staff members were fully cooperative throughout this investigation. All requests for documents and responses to written questions were given immediate attention, and responses were received in a timely manner. The agencies also assisted in coordinating witness interviews with staff members, and no requests for interviews were declined by any of the agencies or their personnel. This Report begins with an Executive Summary of key findings, followed by an Investigation section outlining the scope of our investigation and methods used, a Factual ‘Summary of key facts and evidence, and a Conclusion. No constraints were placed on our work beyond those imposed by our enabling statute, nor were any efforts made to influence the outcome of our investigation. Communications necessary to request documents or arrange witness interviews aside, other than communications concerning administrative matters and scheduling, no other communications have taken place with any public official, state agency, or third party regarding this investigation. The findings and recommendations set forth in this report are our own. 4Confusion and speculation have surrounded the discrepancies between the final version of the OSIG Parole Board Report and earlier drafts. Our investigation has found that the underlying facts as to how OSIG conducted its investigation are not subject to great dispute. In our opinion, the factual record supports the following findings: A. The Report Dated July 28, 2020, is the Sole OSIG Parole Board Report The evidence is clear that there was only one OSIG Parole Board Report and that is the six-page report dated July 28, 2020. A review of the relevant documents, as well as statements from the individuals involved in the drafting process, make it clear that the July 28th report is the sole official report. Earlier versions of the report are in draft form and contain drafting comments and edits. A review of the drafts and emails from the relevant time p xd shows that the report ‘was not finalized until it was in the six-page form released on July 28, 2020. Reports subsequently disseminated through the media containing unsubstantiated allegations were simply drafts. There was an extensive internal editing and review process, through which OSIG determined that certain allegations proposed in earlier drafts were not, supported by the evidence and should be deleted. Once finalized on July 23, 2020, the findings in the official report never changed. OSIG initially sent the OSIG Parole Board Report to the Secretary of Public Safety and Homeland Security on July 23, 2020, with notification that it would be released pursuant to a Freedom of Information Act (“FOIA”) request. In tur, the Secretary of Public Safety and Homeland Security forwarded the report to the VPB. On July 24, 2020, the VPB submitted a written response to OSIG. Subsequently, the VPB notified OSIG on July 27, 2020, that it would not waive its FOIA exemption regarding the contents of OSIG’s report. In response, OSIG redacted the report and forwarded both the redacted and unredacted versions to the Secretary of 15Public Safety and Homeland Security on July 28, 2020. The only difference between the report on the 23rd and the 28th is the date. July 28, 2020, was the official report release date and the six-page report released on that day is the official OSIG Parole Board Report in this matter. B. The OSIG Parole Board Report Was Not Influenced by Outside Actors OSIG’s investigation and findings were not improperly influenced by any third parties, including the Office of the Governor and the Secretary of Public Safety and Homeland Security. There is no evidence that OSIG ever sought or relied upon any input from individuals outside of OSIG, other than legal guidance provided by Assistant Attorney General Michael Jagels (“AAG Tagels”), which was appropriate, Nor was OSIG pressured to alter its investigation or findings. Prior to the release of the report, OSIG never discussed the substance of its investigation with anyone other than AG Jagels, and the findings contained in the OSIG Parole Board Report ‘were not influenced by any third parties. As an appointee of the Governor, the Inspector General reports to the Governor's Chief of Staff Clark Mercer (“Chief of Staff Mercer”). Inspector General Westfall did have communications with Chief of Staff Mercer during this investigation. However, those communications were minimal and limited to notifying the Chief of Staff that a Hotline investigation of the VPB was being initiated, which Hotline Manual policy requires, and providing infrequent updates regarding timing of the report’s release. Inspector General Westfall never discussed the substance of the investigation, nor did Chief of Staff Mercer attempt to influence the investigation’s outcome. After the report was released, the Secretary of Public Safety and Homeland Security (“Secretary Moran”) requested, and Chief of Staff Mercer scheduled, a meeting with OSIG to discuss the report’s findings. The meeting was held on August 14, 2020, and it is clear from all 16involved, as well as the audio recording of the discussion, that Secretary Moran and Chief of Staff Mercer were not pleased with OSIG’s findings. Their negative reactions to the report’s findings make it clear that they were unaware of the report’s contents prior to its release Furthermore, OSIG leadership states that they did not feel intimidated or pressured during the meeting, which is supported by the fact that OSIG’s findings never changed. Similarly, the reactions of the Office of the Governor and the Secretary of Public Safety and Homeland Security to the release of a prior draft of the report, through the media in February 2021, make it clear that they were unaware of any prior drafts or their content. Edits of prior drafts of the report were the result of an extensive review process conducted by OSIG staff and AAG Jagels. No one except OSIG staff and AAG Jagels had copies of prior drafts or knowledge of the drafts’ content. Cc The Lead OSIG Investigator Was Most Likely Biased OSIG failed to identify apparent bias in the lead investigator. It is most likely that the objectivity of OSIG Senior Hotline Investigator Jennifer Moschetti (“Investigator Moschetti”) in the VPB Martin matter was impaired by bias and that this bias likely had an impact on the OSIG Parole Board Report. Early email communications from Investigator Moschetti indicate a high probability of bias against Mr. Martin being granted parole. Evidence of bias first appeared in the lead investigator's response to the Investigations Manager's initial conclusion that the VPB Martin matter should not be investigated. Investigator Moschetti stated that she was trying to put aside her opinions and then went on to argue that the matter should be investigated, stating: This also may be my opinion, but [Former Chair Bennett] lashing out at RPD and other law enforcement organizations in her media statement doesn’t sit well with me. To me, they are providing evidence that this person should not be released and it should be reviewed. To me, her lashing out sounded personal that the LE community disagreed with her and the Board. VPB info is not FOLAable, so the only way to know if policies and 7procedures and laws were followed would be to investigate/audit. Or do we just have to assume they all were? UGGHHHH.”* And if he was denied last year due to his history of violence, what in their review this year, made it different? Did policies and laws change?”* The next indication of Investigator Moschetti’s bias came on the day the VPB placed a thirty-day hold on Mr. Martin’s release. The sister of Mr. Martin’s vietim contacted Investigator Moschetti by email notifying her of the hold, Investigator Moschetti responded, “I am so glad you received this information this morning, I had not heard.”** A week later, Senior Hotline Investigator Janet Crawford (“Investigator Crawford”) emailed Investigator Moschetti the VPB. policies and procedures for rescinding a parole grant decision before an offender is released. Investigator Moschetti responded, “that’s what we were trying to get them to do for Martin BEFORE they release him!”** This comment directly contradicts comments Investigator Moschetti reportedly made to the victim’s family that OSIG’s investigation was limited to a review of the VPB’s policies and procedures. Finally, the tone of the OSIG Parole Board Report indicates bias and a certain disdain for the fact that Mr. Martin had been granted parole, based on the nature of his conviction. OSIG included unnecessary background information on Mr. Martin’s conviction, stating that he was “originally sentenced to death” and was resentenced to life in prison for the “murder of a police officer.” Investigator Moschetti’s colleagues should have recognized the apparent bias in her early comments. It should have been brought to management’s attention and addressed directly. If the 2 Investigator Moschetti Email, April 27, 2020, 11:27 am. Investigator Moschetti Email, April 27, 2020, 11:48 am, 2 Investigator Moschetti Email, May 11, 2020, 11:28 am. © Investigator Moschetti Email, May 18, 2020, 4:28 pm. » OSIG Parole Board Repor, p. | 18lead investigator could not assure management of her impartiality and/or there were any indications that she, regardless of assurances, could not be impartial, she should have been removed from the investigation. Certainly, management should have recognized potential bias in the tone of the report, addressed the issue, removed any questionable ve , and ensured that the report and its findings were completely impartial. Here, that was not done, and it is likely that the report was influenced by the bias of the lead investigator. We recommend increased training on bias awareness and improvements to internal controls to ensure complete objectivity. D. —_ OSIG Failed to Conduct a Thorough Investigation OSIG followed most internal policies and procedures in conducting its investigation However, the quality of the process or methods employed by OSIG during its investigation was severely lacking and definitive steps should be taken to improve investigative techniques. Hotline investigations are typically conducted by the investigator who screens the initial complaint. Here, that investigator was someone who had been with the agency for less than six months. Investigator Moschetti’s inexperience with OSIG investigations was compounded by the fact that she began working remotely, due to the pandemic, a few months after being hired in January 2020, Due to the media coverage and correspondence OSIG received from elected officials, law enforcement, and the public, it was clear that this would be a high-profile investigation. Also, with OSIG’s jurisdictional question and the fact that they had never previously investigated the VPB, this was not another run-of-the-mill OSIG investigation, which typically involve unauthorized use of state vehicles, conducting personal business on state time, and the like Best practices dictate that this investigation should have been assigned to a more seasoned investigator. OSIG did assign an experienced investigator and a special agent to assist in the investigation. However, the more-experienced investigator had minimal involvement and 19stopped participating early in the investigation, and the special agent’s role was limited to determining whether any criminality existed. The investigation was led by Investigator Moschetti. She determined what evidence to gather, whom to interview, and the overall direction of the investigation. ‘Not every investigative decision made was a poor decision. Investigator Moschetti was thorough in some respects. For example, extensive steps were taken to track down the family of Mr. Martin’s victim and confirm the details of their notification by and communications with the PB. Investigator Moschetti was also thorough in identifying and reviewing statutes, policies, and regulations potentially applicable to the investigation, such as sections of the Code of Virginia, and the VPB Policy and Procedures Manuals. However, there were deficiencies throughout the investigation, beginning with the initial request for materials directed to the VPB. OSIG requested the “case file,” but did not list any specific examples of the materials sought. Failing to define what materials should be included left the term “case file” completely open to interpretation, which increased the possibility that relevant materials would not be produced. As an example, such requests should include a clause stating, all records related to the VPB's parole review and grant decision of Vincent Martin, including but not limited to, all documents, records, notes, summaries, memoranda, letters, correspondence, minutes, recordings, transcripts, interoffice communications, reports, and all other similar materials, whether draft or final, Crafting an appropriate document request is an essential part of conducting a thorough investigation. Here, OSIG fell short. OSIG also fell short in its efforts to conduct effective interviews. Based on OSIG’s records, only seven individuals were interviewed. It is certainly not necessary to interview individuals who clearly do not possess relevant information; however, in this case, efforts werenot made to interview at least one key witness, current VPB Chair Tonya Chapman (“VPB Chair Chapman”). Furthermore, the thoroughness of the interviews was severely lacking, as interviewees were asked a minimal number of pre-scripted questions. Perhaps most troubling was the leading nature of most questions, which in some cases asserted to witnesses that applicable statutes and policies had been violated before OSIG’s investigation established those facts, and their primary focus on potential wrongdoing by Former Chair Bennett OSIG also failed to adequately investigate certain leads. For example, the OSIG Parole Board Report finds that Former Chair Bennett failed to create and maintain VPB meeting minutes. However, OSIG failed to take appropriate investigative steps to determine whether meetings, for which minutes must be kept, were actually held. Based on the evidence in OSIG’s investigation file, as well as our own witness interviews, this particular finding is solely based on the lack of meeting minutes produced by the VPB in response to a request from Investigator Moschetti and a hearsay statement contained in an email response from VPB Chair Chapman. ‘OSIG never asked Board Members whether meetings occurred, never reviewed calendars for the relevant time period, and, to our knowledge, never took any other steps to confirm this finding, As OSIG states in the Hotline Manual, “[dJue professional care should be used in conducting investigations and in preparing accompanying reports . . and reasonable steps should be taken to ensure that sufficient relevant evidence is collected.”** Here, the evidence demonstrates that this standard was not met. Some of these shortcomings likely could have been avoided through further management supervision. Hotline investigations are typically left in the hands of the individual investigator. Updates are provided to the Investigations Manager throughout, who escalates issues to the 2 Hotline Manual, Policy § 1006.4 a