Count on More Copyright Clark Hill PLC 2008 INVESTIGATING ALLEGED MISCONDUCT Presented by Barbara A....

Count on MoreCopyright Clark Hill PLC 2008

INVESTIGATING ALLEGED MISCONDUCT

Presented by Barbara A. RugaClark Hill PLC

MASPADecember 4, 2008

http://www.clarkhill.com/index.html


Presenter

Barbara A. [email protected]

Phone: 616-608-1105

Education, Labor & Employment Practice

Thanks to Connie Cessante of Clark Hill for

her contributions to this presentation!



Agenda

What triggers an investigation

The investigation process

Special considerations for harassment investigations

How to document the investigation

Review the evidence and reach a determination



Why Conduct an Investigation

To determine whether employee misconduct occurred

To determine whether prohibited harassment occurred in violation of Board policy or law

To determine whether retaliation in violation of Board policy or law occurred



Desired Skills of Investigator

Understanding of importance of fact investigation and how results will be used later

Effective note taker Comprehends difference between proof of facts

and assumptions Ability to “think on feet” and ask follow-up

questions Anticipate defenses and ask questions to probe

such defenses Non-judgmental demeanor Organized; analytical thinker; creates

chronological records of events



Employee Misconduct



Investigation Is Element of Employer’s Proof of Just Case

Was employer’s preliminary investigation – before discipline administered – conducted fairly and objectively? Who conducted it Was it reasonably thorough and fair to

employee Did employer keep open mind



Preliminary Considerations

Who should conduct the investigation? Avoid if known personality conflicts Caution if recent grievances or complaints or

ongoing investigation Inexperienced administrators

Where penalty significant, consider the decision maker different from investigator

In many cases, the building administrators have best access to people who need to be interviewed, however, have least experience to do so properly. Tend to act hastily, make assumptions, accept things “on the surface”.



Action Plan

Learn of Allegation Review applicable rules, policies, etc Review contract, Board policies Consider whether place employee on

leave pending investigation? If so, paid or unpaid?

Conduct investigation Determine Discipline to be issued Document discipline



Collect applicable policies

CBA

Board Policies and procedures

Employee work rules and handbooks

Individual contracts

Staff meeting minutes



Other Preliminary Considerations

Place on administrative leave Nature of allegation Accused’s ability to taint or influence

investigation’s outcome, destroy or modify relevant evidence, influence or intimidate witnesses

Risk of irreparably damaging reputation or appearance of pre-judgment by placing on leave

Adverse impact on students or staff or disruption to educational process if remain at work during investigation.

Paid or unpaid?



One Arbitrator’s Formulation

Was Investigative Process Fundamentally Fair?

A thorough investigation should disclose: Names of each person involved in incident Names of witnesses and those interviewed What each participant did or saw What each witness did or saw Time, date and location of incident Sequence of events Examination of relevant documents or objects

involved or used in the incident



“Due Process” for accused

Notice of investigatory interview that could lead to discipline

Expectation of cooperation during investigation which is an important process and therefore accused (and all witnesses) owe: Complete answers Truthfulness No right to avoid self-incrimination in employment context

Notice of charges

Opportunity to explain the evidence

Right to explain conduct

Union representation but not necessarily legal counsel



More Preliminary Considerations

Use of Technology Freeze and review emails Internet usage Telephone records Cell phone records Text messages Videotapes



The Investigation Process

Describe everything that happened in detail from beginning to end. Exactly what each participant or witness saw or heard.

What was context of incident? Why was witness or participant there? What was going on before the incident?

Who, what, when, where, why, how? What did witness or participant do after the

incident? What has witness or participant said to anyone

else about incident? Or heard about it – what and from whom – be specific!

May want to develop Incident Reports or other forms for building use.



Elements of Allegation

What will you have to prove in an arbitration related to this discipline?



Impartiality and Objectivity

Avoid giving impression that prejudged allegations

Do not finish sentences or fill in gaps or silences

Ask open-ended non leading questions Give multiple opportunities to correct and

supplement Interview witnesses suggested by accused

unless good reason not to do so Consider alternate suspects or explanations,

where plausible and appropriate



Documenting Investigation

Investigator’s notes Second person present Follow up confirming memos or emails to

witnesses

Signed statements

Recorded statements

Sworn statements, affidavits or depositions



Special Considerations

Investigating Harassment Complaints



Why Conduct An Investigation

The Anti-Harassment Policy and Complaint Procedure

Establish, publicize and enforce the District’s anti-harassment policy and complaint procedure.

The anti-harassment policy and complaint procedure should contain:

A clear explanation of prohibited conduct in compliance with the Michigan Revised School Code.

A complaint procedure that provides for accessible and alternative avenues for reporting a complaint.

A complaint procedure that provides for a prompt, adequate and impartial investigation.

A statement that the District will take immediate and corrective action if it determines that harassment has occurred.

A statement that the District will protect the confidentiality of harassment complaints to the extent possible.

A statement that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation.



Why Conduct an Investigation

The Individuals Identified as Avenues to Report the Complaint

Supervisors and any other individuals identified in the complaint procedure as the contact for the initial complaint of prohibited harassment should be instructed to report all complaints to the appropriate individuals (typically, Human Resources).

The instruction to report should be required without exception to eliminate supervisors and other individuals ignoring complaints of prohibited harassment, deciding what conduct warrants investigation, or what is or is not a violation of the District’s policy. In other words, err on side of reporting.



What Constitutes A Prompt, Adequate and Impartial Investigation

What is sufficiently prompt when investigating a complaint

Prompt means prompt, and the investigation should begin immediately and without delay.

The amount of time needed to complete the investigation depends on the particular circumstances, but the investigation should continue without delay.

Unreasonable or unexplained delays suggest District does not take matter seriously.



What Constitutes A Prompt, Adequate and Impartial Investigation

What is an adequate and impartial investigation

The adequacy and impartiality of an investigation depends upon the particular circumstances of the complaint.

While the investigative process may not be the same for all complaints, there are certain steps that a District is well-advised to take when investigating reports of harassment.




Determine whether any interim measures are necessary to separate the complainant and alleged harasser to prevent further harassment

If necessary, interim measures often include making schedule changes, transferring the alleged harasser, or placing the alleged harasser on non-disciplinary leave without pay pending the investigation.

The interim measures should not burden the complainant.




Determine who should investigate the complaint

Internal or external investigator

Whether internal or external, the investigator should possess certain attributes:

Objectivity and impartiality.

The skill-set to carry out the investigation including the ability to interview witnesses, determine the scope of the investigation and evaluate credibility.

Familiarity with the District’s (sexual, racial, disability) harassment policy.

Familiarity or a working knowledge of the legal standards as to what constitutes unlawful or prohibited harassment.

Ability to identify and articulate follow up questions during interview when faced with unanticipated information.




The documents that should be reviewed prior to interviewing the complainant, the alleged harasser and others include:

The anti-harassment policy and complaint procedure.

If in writing, the complaint and any notes or other materials associated with the complaint.

The personnel files of the complainant and alleged harasser.

Prior complaints against the alleged harasser.

Prior complaints made by the complainant.

Other documents that the complaint may place at issue including the District’s rules, policies and procedures.




Determine the order in which the interviews will be conducted

Interview the complainant first.

Interview the alleged harasser second.

Witnesses to the incidents and co-workers identified by the complainant and alleged harasser.




Determine the order in which the interviews will be conducted (Cont’d)

If the complainant refuses to be interviewed, attempt to find out why and document the refusal in writing by sending a letter to the complainant. Explain that the investigation will go forward based upon the information previously provided, and encourage the complainant to contact you if he/she changes his/her mind.

If the alleged harasser refuses to be interviewed, take an identical approach. Be clear with the alleged harasser about the consequence of the decision. Explain that a determination will be made without the alleged harasser providing his account of the incidents and based upon other information gathered during the investigation.

If a witness refuses to participate, find out why. Often third parties are hesitant to participate because of the fear of retaliation. Explaining the investigation process and answering any questions the witness has encourages participation.




Determine the means by which the information obtained from the complainant, alleged harasser and witnesses during the interviews will be documented.

Handwritten notes. The handwritten notes should be legible and contain the detail provided during the interview. Include only the information reported by the witness and refrain from noting your conclusions, opinions or reactions.

CONSIDER ASKING INTERVIEWEE TO INITIAL YOUR NOTES

A typed summary of the interview for signature by the complainant, alleged harasser and each witness prepared from the handwritten notes.

A statement written out by the complainant, alleged harasser and each witness.

If information will be collected by handwritten notes and written summaries will not be used, at the conclusion of each interview review the notes verbally with the witness to ensure that all information has been captured accurately. CONSIDER INITIALS BY INTERVIEWEE.




Prepare for the interviews

Before conducting each interview, have a clear understanding of the information needed.

Prepare an outline of the questions that the complainant, alleged harasser and witnesses should be asked.




Interviewing the complainant

Explain the purpose of the interview and the District’s commitment to its anti-harassment and complaint procedure including the prohibition against retaliation.

If the complainant is not familiar with you, introduce yourself, and try to put the him/her at ease.

Explain that the information from the complainant will be shared with others on a need to know basis so that the complainant understands that the information will not be held strictly confidential.




Interviewing the complainant (Cont’d)

Obtain information from the complainant about the incidents upon which the complaint is based.

Obtain detailed information about each incident by eliciting the six “Ws” and one “H”: who, what , when, where, why, witnesses and how.

Ask the complainant if he/she has any notes or other documentary evidence.

Obtaining the details or specifics of each incident is critical because the factual basis for complaint will determine the scope of the investigation.




Interviewing the complainant (Cont’d)

Obtain information about the complainant’s response to the alleged harasser.

Obtain information about the prior interaction between the complainant and alleged harasser, including whether there are prior unreported incidents or prior interaction that was not “unwelcome.”

Obtain information about the individuals with whom the complainant discussed the conduct in which the alleged harasser engaged before reporting the conduct.




Interviewing the complainant (Cont’d) If the complainant did not immediately report the incidents, ask why.

Ask the complainant what action he/she would like the District to take to resolve the complaint.

Ask the complainant what action the District should take against the alleged harasser, and if the complainant can continue to work with the alleged harasser.

Ask who he/she thinks you should interview. If the reason for interviewing a suggested individual is not immediately apparent, ask why.

Before concluding the interview, ask the complainant if there is any other information that he/she would like to share or believes is relevant to the complaint.

Ask the complainant to keep the investigation and information discussed during the interview confidential.

Encourage the complainant to contact you during the investigation if he/she has any questions or concerns about retaliation.




Interviewing the alleged harasser

At the outset, make the same disclosure with the alleged harasser as with the complainant.

Explain the purpose of the interview and the District’s commitment to its anti-harassment and complaint procedure, including the prohibition against retaliation.

If the alleged harasser is not familiar with you, introduce yourself, and try to put the him/her at ease.

Explain that the information from the alleged harasser will be shared with others on a need to know basis so that the alleged harasser understands that the information will not be held strictly confidential.




Interviewing the alleged harasser (Cont’d)

The alleged harasser often reacts with shock, disbelief and immediate concern for the status of his/her employment. If this occurs:

Reiterate that the investigation will be conducted in an impartial and objective manner.

Reiterate that you have not drawn any conclusions about the allegations.

Impress upon the alleged harasser that this is his/her opportunity to respond to the allegations.

Stress to the union rep that you need to hear from the alleged harasser to ensure accuracy and genuineness of harasser’s responses.





Discuss the incidents that form the basis of the complaint and ask the alleged harasser to respond as you identify each incident.

When discussing the incidents, disclose all of the details provided by the complainant and do not omit information.

Obtain detailed information from the alleged harasser about his response by eliciting the six “Ws” and one “H”: who, what, when, where, why, witnesses and how.

Obtain all documentation or other evidence the alleged harasser has supporting his/her response to the allegations.





Obtain information from the alleged harasser about his prior interaction with the complainant.

If the alleged harasser claims the allegations are false, ask why the complainant would lie or has reason to fabricate the allegations.

Ask who he/she thinks you should be interview. If the reason for interviewing a suggested individual is not immediately apparent, ask why.





Before concluding the interview, ask the alleged harasser if there is any other information that he/she would like to share or believes is relevant to the investigation.

Ask the alleged harasser to keep the investigation and information discussed during the interview confidential.

Encourage the alleged harasser to contact you during the investigation if he/she has any questions.

Reiterate the company’s policy against retaliation.




Interviewing witnesses

At the outset, make the same disclosures with the witnesses as you did with the complainant and alleged harasser:

Explain the purpose of the interview and why the investigation is taking place, including the company’s anti-harassment policy and complaint procedure and the prohibition against retaliation.

If the witness is not familiar with you, introduce yourself, and try to put the him/her at ease.

Explain that the information from the witness will be shared with others on a need to know basis so that he/she understands the information will not be held strictly confidential.




Interviewing witnesses (Cont’d)

Explain why you have asked to speak to the witness and how the information you obtain from the witness will be used.

Ask the witness about his/her knowledge of the events in detail, including eliciting the six “Ws” and one “H”: who, what, when, where, why, witnesses and how.

There is no need to share all information reported through the investigation with the witness if he/she is not identified as a witness to the incident or is not reported to have relevant information about a matter.

Share only the information necessary to conduct a thorough interview with the witness.




Interviewing witnesses (Cont’d)

Before concluding the interview, ask the witness if there is any other information he/she would like to share or believes is relevant to the matters discussed.

Ask the witness to keep the investigation and information discussed during the interview confidential.

Reiterate the District’s prohibition against retaliation.

Let the witness know how to contact you with any questions or if he/she has any concerns about retaliation.



The Decision

Direct evidence – eyewitness accounts, documents, admissions

Indirect evidence – circumstantial evidence; conclusions derived from a reasonable inference as a result of facts surrounding an event.

Preponderance of evidence or clear and convincing evidence



Review the Evidence and Reach a Determination

Review all of the information to determine if any follow-up is necessary.

Interviews

Documents

After concluding the investigation, determine whether the alleged misconduct occurred or whether the incidents reported by the complainant occurred.

Consider and weigh all the evidence, including the witness interviews and documentary evidence, and the credibility and stated motives of the involved participants and witnesses.




If there are conflicting versions of events, and credibility must be accessed, consider (Cont’d):

Whether the witness is believable and whether the account provided makes sense.

Did the witness appear to be telling the truth?

Did the witness have a reason to lie?(Status [ie, alternative ed student] is not a reason to lie.)

Do other witness accounts or documentary evidence back up the witness’ account?




Other factors to consider when assessing credibility include:

The parties' work records. Whether either party has had conflicts or difficulties

with other employees. Whether they have recently been disciplined for

unrelated reasons. Whether there have been previous accusations

against the alleged harasser.

Also consider whether the information provided is based upon first-hand knowledge such as “eye witness” accounts or rumor, gossip or supposition.




Generally, the available determinations include:

Misconduct occurred. / The incidents occurred exactly as reported by the complainant.

The incidents are distorted or taken out of context as reported by the complainant. / Some misconduct occurred.

Some or all incidents did not occur.

A determination cannot be made because the evidence is inconclusive.




To the extent you conclude that the incidents occurred, you should determine whether the incidents constitute prohibited harassment.

If prohibited harassment occurred, undertake immediate and appropriate corrective action.

The remedial measures taken should be sufficient to stop the harassment, correct the effects on the complainant, and prevent the harassment from recurring.




The complainant and alleged harasser should be notified of the determination and, if necessary, the corrective action.

After the investigation concludes and the corrective action is implemented, periodically follow up with the complainant to ensure that the harassment is not reoccurring and the complainant is not being retaliated against.



The Investigation Report

Conclude the investigation with a report or at least a summary of the allegation/complaint and determination, including, the disciplinary or corrective action recommended or taken, if necessary:

The report should include:

Background information, including how the allegation/complaint was raised.

How the allegation/complaint was investigated including a listing of all witnesses interviewed and documentary evidence reviewed.

The incidents as reported by the complainant, the alleged harasser’s response and witness accounts of the incidents.

Your determination whether the incidents occurred, whether the incidents constitute prohibited harassment, and if necessary, the corrective action taken.

If documentary evidence is relied upon, attach the documents to the report as exhibits.



How to Document the Investigation

Create a separate file for the investigation

The investigation file should include:

The allegation / complaint. Notes of all interviews. Evidence of all attempts to contact the complainant,

alleged harasser and witnesses. Evidence of all contact with the complainant, alleged

harasser and witnesses. All documents or other physical evidence provided by the

complainant, alleged harasser and witnesses. The Report of Investigation. Evidence that the complainant and alleged harasser were

notified of the results and, if necessary, the corrective or remedial action taken.



Documenting Action

Describe what document is: ”This is a written reprimand.” Briefly recite charge, summarize investigation, and reference employee interview noting whether or not union representative present or declined.

Briefly summarize facts of which you are confident that are necessary to justify disciplinary action; State what discipline is; Warn of consequences for future infractions.

State document will be placed in personnel file; Direct employee to contact immediately if confused or do not understand what is expected.



Investigation of Alleged Criminal Conduct.

Section 9, ERKA Must notify employee after two years or

completion of investigation. If no disciplinary action taken, must

destroy records. If information placed in record was

knowingly false, must expunge. If later agree information inaccurate, may remove it.

Employee has right to submit rebuttal to file information under ERKA and perhaps under CBA.



Procedural or Investigative Flaws

Failure to interview students or other eyewitnesses involved in the incident

Failure to rule out other suspects or explanations

Unreasonable delays Careless errors in facts or reports suggesting

lack of focus or negligent investigation Hasty interviews with accused Decisions or discipline not congruent with

known facts or actual or potential harm



Other Pitfalls to Avoid

Contract or procedural violations due to lack of knowledge of same

Reliance on union to help prove case Double jeopardy Hesitating to ask questions Not directing employees to answer questions

or fully cooperate with interviews Sympathy for those who do not want to

become involved overriding need for evidence



Disparate Treatment

Affirmative defense of the employee/union. Burden on employee/union to prove. Must be similarly situated in order to establish

that it is fair to compare to current incident. If not similarly situated, may treat differently.

Important to maintain records of disciplinary actions and handling of harassment complaints.

Ask employee/union to identify alleged instances of disparate treatment during the grievance procedure and document same.

Consider contract language requiring full disclosure prior to hearing.



Parallel police investigations

Proceed with District investigation simultaneously

Defer to police investigation

Delay until police investigation completed

Different burdens of proof



Absence of a Crime

“The absence of a crime does not preclude a determination that certain conduct by a [Teacher] is inappropriate.”

Example: unwanted touching

Administration cannot look into employee’s mind to determine intent but must base discipline upon known actions.



Anticipate Defenses

I did not do it I did not know it was

wrong The discipline is too

harsh You did not follow

contract procedures You did not give me

due process

No union rep Union rep too late You treated me

differently than others You led me to believe

it was okay Discrimination! You just don’t like me! Rule unreasonable/no

right to adopt rule



Questions and Comments

THANK YOU!



Disclaimer

This Presentation is not intended as specific

legal advice. Please consult legal counsel for

advice about any particular situation.


Count on More Copyright Clark Hill PLC 2008 INVESTIGATING ALLEGED MISCONDUCT Presented by Barbara A....

Documents

Transcript of Count on More Copyright Clark Hill PLC 2008 INVESTIGATING ALLEGED MISCONDUCT Presented by Barbara A....