Employee Misconduct
Now What?
Michigan Association of School Personnel Administrators
2012 Winter Conference
Nancy Mullett
(269) 966-3000
November 28, 2012
Recent Headlines and Events
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Penn State
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Misconduct scandal prompts L.A. schools to send 604
teacher discipline cases to state (CBS News)
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Indiana had dozens of teacher sexual misconduct cases
in 5 years (CNN)
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Since 2006, 108 Spokane WA employees were put on
paid leave. Of those on leave, 70 employees
resigned. In the end the district paid out more than $1
million. (KREM.com)
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Record number of discrimination/harassment complaint
filings. (Michigan)
Topics to be Covered
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Why You Investigate
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Who Should Investigate
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How to Prepare
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Interview Process
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Documentation
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Special Situations
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Pitfalls
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Points to Remember
Why You Investigate - Triggers
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Many Circumstances May Prompt an Investigation
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Formal (or informal) Complaint
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Co-worker Reports (direct or rumor mill)
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Violation of Workplace Rules
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Theft or Suspected Theft (embezzlement)
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Drug Use or Activity
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Student Allegations/ Student Disclosures
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Anonymous Complaints
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Workplace Accidents
Why You Investigate – High Level
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To determine if misconduct has occurred.
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To determine whether Board Policy has been violated.
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To determine if prohibited harassment or discrimination
occurred.
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To determine if retaliation for a report of
misconduct/harassment/discrimination has occurred.
Why You Investigate – Ground Level
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Gather facts and relevant evidence
Provide due process
Provide basis for management decision on what action
if any to take
Establish expectations of behavior
Provide reassurance that misconduct will be taken
seriously
Enforce and comply with a variety of anti-harassment
policies where the obligation to investigate is part of the
employer’s or school’s best practice to avoid liability
Investigation is not for the purpose of law enforcement
or prosecution
Who Should Investigate
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Internal or external
Skill-Set
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Ability to judge credibility / Common sense critical
Understands the importance of investigation
Ability to think on their feet and ask follow-up questions and
(with kids) go with the flow, anticipate defenses
Ability to be impartial, objective, and non-judgmental
Ability to determine the scope of the investigation
Knowledge of school policies and potential employment or
other issues
Time to conduct investigation on a relatively prompt timetable
Effective note taker, organized, analytical thinker
Knowledge of child development if with students
How to Prepare for Investigation
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Objective is to obtain sufficient information upon
which to make decisions (or take action), collect
reliable evidence and information, document
process, and recommend action – decision to act
is someone else’s
How to Prepare for Investigation
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Preliminary Matters – Sweat the Small Stuff
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Identify investigator
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Review collective bargaining agreement
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Determine if there is a contractual provision impacted
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Determine if other employment agreements exist
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Decide whether to place employee on administrative
leave
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Collect and review board policies
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Review work rules or employee handbooks
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Review Incident Report
How to Prepare for Investigation
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Preliminary Matters – Pay Attention to Details
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Review personnel file
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Review prior complaints against individual
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Review prior complaints made by complainant
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Determine whether police or CPS should be notified
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Review any complaint procedure in place (harassment)
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Review any videotapes or other documents relevant to
complaint
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If students are interviewed – decide if parents should be
notified – and when
How to Prepare for Investigation
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Consult with others (HR, Board, Administration)
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Be familiar with the allegations
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Need to understand their objectives
Do not make any assumptions about the truth of the
allegations
Determine what evidence is relevant and necessary
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Have a clear understanding of what you are trying to prove
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Secure emails, telephone records, cell phones, text
messages, internet usage, videotapes – PRIORITY
ATTENTION
How to Prepare for Investigation
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Be aware of the rights of the person you are interviewing
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Due process – notice and meaningful opportunity to be heard
Employee right to representation
Weingarten rights (reasonable likelihood of discipline)
Garrity Rights (criminal charges)
Right to attorney (adult and student)
Parents notified
Consider whether you should use outside legal counsel
Decide if second person will be present during
interviews
How to Prepare for Investigation
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Investigation will not always be the same
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Circumstances or conduct prompting investigation
will determine manner and scope
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When dealing with students be prepared to throw your
“plan” out the window – be flexible
Information provided by witnesses almost always
changes the scope – be flexible
Investigate Promptly – won’t get better with time
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Avoid unnecessary delay
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Whenever possible, begin the investigation immediately
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Work diligently to conclude the investigation – no delay
Interview Process
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Determine initial timeline for investigation if possible
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Select a private and quiet interview space
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Schedule sufficient time for interview
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Create a consistent opening statement
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Purpose of the interview
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Any rights and obligations
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Process to be followed
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What they can expect to happen
Interview Process
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Determine order of interviews
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Interview complainant
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Interview witnesses to the behavior or action that forms the basis for
the complaint
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Interview witnesses identified by the complainant
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Interview the person who is the subject of the complaint
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Additional witnesses identified by the subject of the complaint
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This is not set in stone - may interview subject of complaint
before other witnesses – may need follow up
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Prepare an outline of all questions to be asked and topics to
be covered (need to be flexible)
Interview Process
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Prepare specific questions - should be open-ended,
unbiased questions. Avoid yes/no questions.
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Review questions with legal counsel
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Children - avoid questions about time and distance
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Give minimal notice of interview to witnesses and
union
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Decide ahead of time how to handle waiver of union
representation (if applicable)
Interview Process
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Introduce yourself and explain the nature of the
investigation – Consistent opening statement
Put witness at ease – particularly students
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Inform subject of complaint that investigation could lead to
discipline – prior to asking any questions so that complainant
can obtain union representation, if applicable
Explain how witness’s statement may be used
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Need to know basis
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Cannot mandate confidentiality
Take verbatim notes
Allow time between interviews to update notes
Interview Process
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If requiring a written statement – tell witness up front
Have witness write statement – with direction/not
coaching
If you have a written statement clarify origin and
purpose
Determine if statement is a recorded recollection of
highlights or a detailed account
Make sure all statements are signed, dated and
legible
READ STATEMENTS!!!! (Peyton Manning, Drew
Brees…)
Interview Process
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Witness interviews
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Interview separately not in a group
Emphasize need for completeness, accuracy, and truth
Be mindful of additional conditions and events that need to
be documented (witnesses spoke to each other before,
threats made if statement given)
Cover any other similar incidents or the lack thereof
Be mindful of word choice. Write (and speak) like a
regular person; "before" not "prior to." Don't refer to the
"victim," use names
Ask who, what, when, where, why, and how questions
Ask for specific detail
Interview Process
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Identify the context of incident
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Take steps to assure that the witness understands the
question you are asking
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What was going on before
Ask witness (particularly students) to restate the question you
asked
Always remember that what you say may not be what witness
hears (ex. be brave and tell the truth)
Make sure the answer you are getting is to the question
you asked
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Are you saying…
Do you mean
Interview Process
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Ask questions about inconsistencies and gaps in
information
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Ask questions about discrepancies with previous
statements
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Always review and compare to written statements
Is there a way to corroborate statement
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Prompt with sequence questions – starting with what you
know
Journal
Handwritten notes
Ask who they have told – what have they have heard
Interview Process
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Find out what witness did after incident
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Give multiple opportunities to correct discrepancies and
supplement information
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Do not give impression that you have pre-judged
allegations
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Do not fill in the gaps for witness
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Do not finish sentences for witness
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Silence really is golden
Interview Process
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As much as possible prevent interruptions during
interview
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There is no need to share all information obtained
through the investigation with the witness
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Share only those details that are needed to effectively
interview the witness
Interview Process
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Interviewing subject of complaint
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Ask about relationship and prior contact with complainant
Ask if subject of complaint can think of any reason why
complaint would have been made
Try to get agreement i.e., Is it possible…, Would you agree
that….(ex. I can understand why she thinks I might be stalking
her)
Ask who he/she thinks you should interview (common
witnesses can be pivotal)
Before concluding interview ask if there is any other
information they have to share
Remind of ‘no retaliation” policy
May want to direct subject - no contact with complainant or
other witnesses to avoid taint or allegation of retaliation
Interview Process
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If subject of complaint is uncooperative
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Encourage participation by explaining the investigation
process, answering any questions the witness has, and
reiterating the prohibition against retaliation (if applicable)
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An employee can be compelled to cooperate in an
investigation and it is appropriate to discipline employees who
refuse to cooperate
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Follow through on directive to answer questions and cooperate
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Check your demeanor and body language
Interview Process
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If witness/student is uncooperative
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Try to determine reason for lack of cooperation
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Students often concerned about how it will look to peers
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Students can be uncomfortable and afraid of repercussions
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Students want to “be cool”
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Reassure student that they are safe and doing the right
thing
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Tell them what you know (or think you know)
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Provide reassurance about how to handle actual or
perceived retaliation – give names and numbers of who to
contact if retaliation is suspected
Interview Process
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Confidentiality
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When interviewing, always ask the witnesses to treat the
information discussed during the interview confidential
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Explain why confidentiality is helpful
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Explain that the information provided during the interview will
be shared on a need to know basis and not necessarily held
in strict confidence
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State any policy prohibiting retaliation
Interview Process
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Reach a Determination
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Review all of the evidence, including witness interviews
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If necessary, follow up with additional interviews or other activity
needed to conduct an adequate investigation
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Consider and weigh all the evidence
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If evidence conflicts, assess credibility (is witness believable,
did witness account make sense, is account based upon
personal knowledge or gossip, hearsay or speculation, does
witness have reasons to lie, does account contradict
documentary evidence)
Documentation
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Create a separate file for the investigation
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The file should include all documents and other
information gathered during the investigation
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The allegation/complaint
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Notes
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Evidence of all contacts or attempts to contact witnesses
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Documents and physical evidence
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Pertinent policies, rules, laws, contracts
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Final report
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Documentation that parties received the final report
Documentation
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Recording the Information
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Determine at the outset how information will be documented
Options to document witness interviews include:
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Handwritten notes
Typed summaries for signature by the witness
Allow witness to make changes before signing
Statements written by each witness
Tape record?
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If handwritten notes are used, before concluding the interview
review notes with witness to ensure all information was
captured accurately
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Handwritten notes should be legible
Documentation
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If creating a first person statement, use the exact
words used by the witness.
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If providing a summary with quotes, assure that the
information in quotes is in the witness’s exact
words.
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Make sure you know how to contact the witness in
the future if needed – explain potential need for
follow up
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Remember to date each document and place page
numbers on each page
Documentation
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Written report is always necessary
Determine whether report will just provide the facts with
conclusions or will recommendations be included as well
Report should include:
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Background information
Specific allegation
How the investigation was carried out
Witnesses interviewed
Credibility determination (if necessary)
Documentary evidence reviewed
Substantiated, misconduct occurred, did not occur,
inconclusive
Documentation
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Think about your audience when writing your report
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Edit and proof report from the perspective of
someone with no knowledge of event
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Better yet have someone with no knowledge read and see
if it is clear (confidentiality)
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Will the report be subject to a FOIA request?
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Will the report be Exhibit A in litigation?
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Decide how you are going to refer to your witnesses
and then refer to them in the exact same way
throughout the report ( Mr. Jones, or R. Jones, or
Complainant – not victim and harasser)
Documentation
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Mr. Jones, Mr. Rice and Mr. Wilson all complained
that Mr. Smith constantly harassed them. Mr. Jones
and Mr. Rice said he would follow them wherever
they went and one time he even followed him home.
They wanted the harassment to stop and if the
school could not stop his behavior, he would go to
the police.
Documentation
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If tasked with making recommendations:
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Remediation
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Determine what, if any, corrective action or remedial
measures are necessary
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Always consider polices and practices
Discipline
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Clearly identify the disciplinary document “This is a written
reprimand”
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Warn of future consequences
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State document will be put in personnel file
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Direct employee to ask if confused abut discipline or
expected behavior
Special Situations – Civil Rights
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Discrimination / Harassment Complaints
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Law is pretty clear – must investigate and report
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No such thing as informal complaint
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Employees need to understand obligation to report
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Employees need to know the complaint procedure
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Employer needs to decide if complainant and alleged harasser
should be separated (not necessarily administrative leave)
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Document any refusal to give statement – try to understand why
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Remedial measure should stop harassment, correct effect on
complainant and prevent future harassment
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Retaliation and disparate treatment
Special Situations – FERPA Issues
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If school videotapes are used - need to decide if
videotapes are law enforcement records or educational
records.
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How are videotapes created?
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Who is custodian of videotape?
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How are videotapes used?
FERPA narrowly defines a law enforcement record as a
record that is (1) created by the law enforcement unit, (2)
for a law enforcement purpose, and (3) maintained by the
law enforcement unit.
Law enforcement record not subject to FERPA – can share
Special Situations - FERPA Issues
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Records of School Resource Officer compiled for
criminal case are not educational records but if used to
investigate violation of school rules, become
educational records
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If educational records are involved, may need to obtain
written consent of parents/guardians or student if 18 or
older, to share records during investigation (including
sharing with union representative, other parents, etc.)
Pitfalls
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Hasty preparation - Hasty Interviews
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Failure to interview all relevant witnesses
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Failure to consider alternate explanations
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Careless errors – particularly in reciting facts
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Decisions or discipline not congruent with known facts
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Discipline inconsistently applied
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Inability to ask the necessary questions (uncomfortable with subject
matter)
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Errors or violations due to lack of investigator knowledge or skill set
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Failure to address defenses
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Lack of Due Process
Points to Remember
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Know what you are trying to determine
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Investigate promptly
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Listen to both sides – remain impartial
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Adjust language to developmental level of witness
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Make sure questions are understood
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Document everything
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Prepare a final report
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Consider the reader
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Reach a conclusion
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Stay organized
Questions?
THANK YOU
Nancy Mullett
nmullett@kreisenderle.com
269.966.3000