EFFECTIVE INTERNAL
INVESTIGATIONS
WASHINGTON AND LEE UNIVERSITY
Fall 2008
Leanne M. Shank
Jennifer E. Kirkland
Office of the General Counsel
TABLE OF CONTENTS
Page
I.
WHY?
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II.
THE INGREDIENTS OF AN EFFECTIVE
INVESTIGATION
2
PLANNING THE INVESTIGATION--FORMAL
OR INFORMAL
2
IV.
INTERVIEWING COMPLAINANT
3
V.
INTERVIEWING THE RESPONDENT
5
VI.
INTERVIEWING WITNESSES
6
III.
VII. ASSESSING CREDIBILITY OF ALL PERSONS
INTERVIEWED
7
VIII. MAKING AN ASSESSMENT AND PREPARING
THE INVESTIGATION REPORT
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IX.
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FINAL INVESTIGATION FILE
I.
WHY?
A.
Required by federal or state law, regulations, University policy.
B.
Best Practice: the University should know and understand the facts and
circumstances surrounding a claim or incident so it may take the most appropriate
steps to address the situation. The University should also know the facts and
circumstances before being told by an outside party (plaintiff; insurance carrier;
etc).
C.
Internal Investigators:
D.
1.
WHO can/may they be? Designated Officers, CAIRs, members of Human
Resources, Facilities Management, Public Safety, Director of
Environmental Health and Safety, in-house and outside counsel, outside
auditor, professional investigator, etc. Investigators are only as effective
to the extent their work and reports are comprehensive, accurate, unbiased,
and reasonable. Investigators can be the key witnesses who will
corroborate that the University acted reasonably and consistent with law
and policy in addressing the situation, or can “sink the ship” in a
University’s defense if their work is inadequate and incomplete.
2.
WHAT? “Investigation” (more formal) vs. “investigation” (less formal)
Examples of Allegations/Incidents Possibly Triggering an Internal Investigation
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Non-compliance with Laws and Regulations
Violation of established Employment Practices
Harassment, Discrimination, or Retaliation
Workplace Violence
Sale, transport, possession, or use of Firearms and Weapons on University
property
Conflicts of Interest
Offering or accepting Gifts or Entertainment that could improperly
influence existing or potential customers or suppliers or compromise the
employee’s independence
Violation of University Environmental Practices
Non-compliance with Health and Safety rules
Accidents in the Workplace or on University Property
Use, distribution, sale, possession, or being under the influence of illegal
Drugs and/or Alcohol during working hours
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II.
III.
Violations of Software Compliance laws, including unauthorized
reproduction or use of manuals or other copyrighted and trademarked
materials
Unauthorized disclosure of Confidential Information
Unauthorized Use of University Resources
Compromising the Integrity of University Records and Information
Relations with Government and Political Activity that violate federal,
state, or local laws and regulations or could give rise to a conflict of
interest
Violations of other policies, procedures, or laws
Student Misconduct
Other Employee Misconduct
THE INGREDIENTS OF AN EFFECTIVE INVESTIGATION
A.
Recognize that it is not necessary to "prove" student/employee misconduct
beyond a reasonable doubt, or by clear and convincing evidence, but by a
"preponderance" of the evidence. It is necessary that a good faith investigation be
done, reaching a rational conclusion.
B.
Elements of a reasonable investigation are:
1.
Thorough interviews of the complainant (if there is a “victim” involved),
respondent (if there is a student/employee charged with misconduct), and
necessary witnesses. From them, create list of potential witnesses. For
other types of investigations (e.g., accident), thorough interviews of
employee(s) involved and all witnesses with direct or indirect knowledge
of facts and circumstances (including related remarks);
2.
Analysis of all relevant evidence;
3.
Assessment of the credibility of the parties, witnesses, and strength of the
evidence;
4.
A rational, legally defensible conclusion of whether the conduct
complained of or incident/accident occurred.
PLANNING THE INVESTIGATION -- FORMAL OR INFORMAL
Planning the investigation is one of the most important phases of conducting an
effective internal investigation. Effective planning is critical to the overall
success of your efforts to resolve an issue. Before interviewing anyone, there are
several things you need to decide:
A.
Are there policies and procedures that may apply to the situation?
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IV.
B.
What documents may be relevant in the investigation?
C.
Are you the proper person to conduct the investigation? Is there any reason you
cannot be objective about the situation? Do circumstances allow you to conduct a
thorough investigation promptly? Should you bring in an assistant the same
gender as the complainant?
D.
Who should be interviewed and in what order? Create list of potential witnesses
or individuals who may have relevant information.
INTERVIEWING COMPLAINANT (in cases of harassment or other alleged
misconduct where there is a “victim”)
A.
B.
Purpose and Objectives
1.
Identifying all issues;
2.
Gathering all material FACTS -- the WHO, WHAT, WHERE, WHEN
and WHY;
3.
Instilling confidence in the system and you -- avoid pre-disposed
judgments or opinions. Always be objective!
Interviewing the Complainant
1.
Questions to Ask:
a.
What happened?
b.
Who was involved?
c.
When did the incident(s) take place?
d.
Where did it (they) take place?
e.
How was the complainant affected?
f.
Were there any observers/witnesses or persons with personal
knowledge of the circumstances?
g.
Was the incident isolated or was it part of a pattern?
h.
Has the complainant talked to anyone else at the University about
this issue?
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2.
i.
Are there any documents relevant to the
situation?
j.
Does the complainant know if any other persons have the same or
similar concern?
k.
Was the respondent made aware the conduct was unwelcome (if
the situation involved harassment)? How and when?
l.
If the conduct took place in the past, why did
the complainant wait to report it? (Important
to investigate for unreasonableness of any
delay in reporting.)
m.
Does the complainant have any additional facts or information that
would be helpful?
Suggested Interview Techniques
a.
Begin with questions that are non-threatening.
b.
Ask questions that require narrative answers.
c.
Listen patiently to what the person says and do not interrupt.
d.
Avoid negative questions, such as "Why didn't you?" as these tend
to make people defensive.
e.
Keep questions clear and simple.
f.
If asking questions about sexual acts, use the appropriate
anatomical terms for various body parts.
g.
Do not ask leading questions. Ask the individual to describe the
incident in his or her own words.
h.
Ask the same question several different ways to clarify a response.
Rephrase information and repeat it. This helps you to judge the
person's credibility.
i.
Advise complainant who seeks anonymity, or who is reluctant to
disclose details, that this may limit the University’s ability to
investigate or respond effectively to the complaint and to protect
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other members of the University community. Note W&L’s
prohibition on retaliation.
C.
V.
Concluding the Complainant Interview
1.
Thank the complainant and reinforce that the University does not permit
any retaliation or reprisal for a legitimate complaint being raised.
2.
Tell the complainant that you will limit disclosure of information to those
people with a legitimate need to know. Remind the complainant that
he/she is also under a duty to keep investigation information confidential.
INTERVIEWING THE RESPONDENT (in cases of harassment or other alleged
employee or student misconduct)
A.
Obtaining Cooperation
If the person refuses to cooperate, explain that you have an obligation to resolve
the issue. Explain that if the person refuses to provide you with relevant
information he or she has, you will have to base your decision on any other
information gathered in the investigation and that his or her unwillingness to
cooperate will be considered as a factor in your decision.
B.
C.
Asking Effective Questions – use questions as appropriate from sections IV (A) &
(B)
1.
Broad to narrow questions
2.
Avoid leading questions
3.
Open-ended questions -- WHO, WHAT, WHEN, WHERE, WHY?
4.
Follow-up questions to get facts
5.
Committing respondent to a story/chronology
6.
Get names of witnesses and relevant documents
What If Respondent Denies Any Wrongdoing?
Remember – a respondent rarely will admit that he or she has engaged in
misconduct; thus, the importance of your interview and assessment of credibility.
1.
Explore Possible Ill Motives of a Complainant/Source of First Report of
Misconduct.
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D.
VI.
a.
Ask, "Do you have any idea why he/she would make this up?"
b.
Ask, "Have you had any conflicts or problems with him/her?”
Concluding the Respondent Interview
1.
Thank the respondent and reinforce that the University does not permit
any retaliation or reprisal for a legitimate complaint being raised. Advise
respondent that any form of retaliation or reprisal against complainant or
any witness will be disciplined as a violation of University policy.
2.
Tell the respondent that you will limit disclosure of information to those
people with a legitimate need to know. Remind the respondent that he/she
is also under a duty to keep investigation information confidential.
INTERVIEWING WITNESSES (for all types of investigations)
A.
Prepare before you begin -- outline your questions/areas of inquiry. If you are
unsure of specific questions that need to be asked, or areas of inquiry that need to
be addressed, consult with General Counsel.
B.
Putting The Interviewee At Ease
For your investigation to be successful, you need people to talk openly and
candidly to you. To accomplish this, you must make them feel comfortable.
People who feel threatened "clam up." Therefore, before you begin your
interview, you must anticipate the questions or concerns that will be raised by
each of the interviewees. Be prepared to address these questions or concerns
honestly and forthrightly. Consider an opening statement to each interviewee
addressing:
1.
What you are investigating.
2.
What role the interviewee will play in the investigation.
3.
How the information you receive from the interviewee will be used.
4.
Confidentiality limitations -- Stress that you will only disseminate
information as appropriate and on a "need to know" basis. Stress that
while you will strive to maintain confidentiality and privacy, the
interviewee also has a strict duty to keep investigation information
confidential.
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C.
VII.
5.
Allay concerns re: retaliation --Inform the interviewee that it is W&L’s
policy and intent to foster an environment where individuals feel
comfortable raising issues and complaints. Therefore, retaliation or
reprisals against participants in an investigation will not be tolerated. Of
course, any participant who intentionally misdirects an investigation,
whether by falsehood or omission, will be subject to discipline.
6.
Explain to the interviewee the seriousness of the investigation, the
importance of receiving accurate first hand information, not speculation or
opinion.
Asking Effective Questions - - Use questions as appropriate from section IV (A)
and (B) and use the approach to questioning from V(B) .
ASSESSING CREDIBILITY OF ALL PERSONS INTERVIEWED
A.
Credibility Determination Is Vital To Legal Defensibility.
B.
As soon as the interviewee leaves the room, make some notes to help you assess
his or her credibility later on. Factors that may help assess credibility are quickly
forgotten. Run through the following checklist as soon after the interview as
possible.
1.
2.
Demeanor
a.
What was the demeanor/"body language" of the interviewee (e.g.,
nervous, obviously uncomfortable, sweating, tone of voice)?
b.
How did he or she react to the allegations (e.g., argumentative,
defensive, hostile)?
c.
Does this person inspire confidence in the listener-i.e., does he or
she make an overall credible impression?
Logic/Consistency of Story
a.
Did the person's chronology of any events differ greatly from other
chronologies?
b.
Does the person's version make sense? Is it plausible or farfetched?
c.
Was the person forthcoming or did you have to "pull" information
from him or her?
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3.
4.
Corroborating Evidence
a.
Did the interviewee make any admissions during the interview?
b.
Did the person specifically deny anything?
c.
Was the person's version of the facts different from anyone else's
version?
d.
Did the person's statements conflict with any written information
collected?
Circumstantial Evidence
a.
5.
Are there things that the person has said or done in other situations
that make it more likely than not that the fact(s) in dispute actually
happened?
Other
a.
Motivation for truth-telling
b.
Relationship to Complainant/Respondent
VIII. MAKING AN ASSESSMENT AND PREPARING THE INVESTIGATION
REPORT
Once the facts have been collected and analyzed, the factual findings and your
assessment should be documented in an Investigation Report. ****PREPARE THE
REPORT IN DRAFT, LABELING IT "ATTORNEY-CLIENT PRIVILEGED AND
SUBJECT TO WORK PRODUCT," NOTING AT THE OUTSET THAT IT WAS
PREPARED AT THE REQUEST OF GENERAL COUNSEL. DISCUSS IT WITH
GENERAL COUNSEL PRIOR TO PUTTING IT IN FINAL FORM. THIS IS GOOD
RISK MANAGEMENT PRACTICE, FOR THE FINAL VERSION OF THE REPORT
WILL NOT BE PRIVILEGED.***** Once final, the report should be distributed in
accordance with University policy.
Be as brief and concise as possible. Use "bullets" when appropriate. Write in an
objective, neutral style.
A.
Investigation Background
This section should summarize the sequence and process followed from the time
the issue was raised through the investigation. Two to three paragraphs is usually
sufficient. The following information should be included:
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B.
1.
Name/division/department of the complainant OR means of receiving
other information that prompted this investigation;
2.
Name(s)/division(s)/department(s) of the respondent;
3.
Date the issue or other information was received, and by whom;
4.
Statements summarizing the issue raised and/or information received;
5.
Dates when investigation was started and completed;
6.
Name of person(s) conducting the investigation;
7.
Names and dates of people interviewed.
Key Factual Findings of the Investigation
This section should outline the material facts obtained in the investigation from all
sources. Include only facts. Do not draw conclusions in this factual summary
section. Do not include extraneous information that was collected in the
investigation that is not relevant to the issue.
C.
Analysis
Next analyze the key factual findings, noting:
D.
1.
Any conflicting or inconsistent information produced in the investigation;
2.
How the credibility of the individuals supplying information was assessed
(What did they say that you believed or disbelieved and why?); and
3.
Why the complainant was or was not believed, and why the respondent
was or was not believed. (You may find that you believe some - but not
all - of a person's version of events.)
Assessment
1.
Based on the findings and analysis of the investigation, you should end
your Investigation Report with an assessment of whether there is a
reasonable basis to conclude that the conduct complained of occurred.
You do NOT need to make the ultimate assessment of whether that
conduct constitutes a violation of University policy. That is for the
Board/Dean/Executive Director of Human Resources to decide, depending
on who is the person or entity charged with the final decision.
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2.
E.
IX.
The final Investigation Report should not reflect the content of
conversations or written communications with legal counsel. These
conversations and communications are "privileged."
Forward final Investigation Report to appropriate parties in accordance with
University policy.
FINAL INVESTIGATION FILE
The Final Investigation File consists of what needs to be kept for the University record.
The File will show the key steps that were taken to investigate and respond to the
issues(s) raised. The File should include only the following:
A.
Written communication from the complainant or respondent;
B.
Any written communication to the parties or witnesses;
C.
Notice of interim actions taken, if any;
D.
Investigation Report;
E.
Determination of Board/Dean/Executive Director of Human Resources and
notifications to parties;
F.
Notes and support documentation as necessary to support key facts or conclusions
in the Investigation Report;
G.
Written or electronic communications regarding the investigation to others that
may be important to demonstrate the steps taken during the investigation.
Only final copies of documents should be placed in the Final Investigation File. Drafts of
the documentation listed above are not to be included in this file; all drafts should be
destroyed. No other files containing information regarding the investigation should be
kept. Personal working files and notes should be reviewed to determine what is to be
placed in the Final Investigation File and what is to be discarded.
The Final Investigation File shall be labeled as "Need-to-Know Confidential." Access is
limited to only those with a legitimate business reason to know. The file should not be
released to anyone outside the University, except when required by law, such as in the
course of a lawsuit brought by an employee or student.
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