CONDUCTING EFFECTIVE INTERNAL INVESTIGATIONS
June 22 – June 25, 2008
Carole R. Rossi, Esq.
Chief Campus Counsel
University of California, Santa Cruz
EFFECTIVE INTERVIEW TECHNIQUES; PROPER DOCUMENTATION;
ISSUES OF CONFIDENTIALITY
I.
EFFECTIVE INTERVIEW TECHNIQUES
A. Start with a well-developed “plan of action”
1. First Step: Gather all available information and review, including: all relevant
university/college policies and procedures, any documentation regarding the
incident(s) in question; any other background materials – e.g., organizational
structure of the department, departmental announcements or plans, etc.
2. Prepare an outline which identifies the issues to be addressed and your plan going
forward
3. Order of Interviews:
a.
Start with the complainant. Develop a clear understanding of the
allegations; get as much detail from the complainant as possible;
listen impartially without committing yourself.
b.
If possible, interview who you believe are your key witnesses prior
to interviewing the accused. This will help you develop a solid set
of questions in preparation for your meeting with the accused.
c.
Interview the accused.
d.
Interview other witnesses identified during the course of the
investigation. Be sure to ask the complainant and the accused: Is
there anyone that you recommend that I speak with?
e.
At the end of every interview, try to ask: Is there anything else I
should know?
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f.
Ultimately, in the final report, the investigator should document who
was interviewed and when. If someone refused to be interviewed or
was not available, that should be explained in the report, along with
the investigator’s various good faith attempts to arrange the
interview; if you decided not to interview an individual identified by
the complainant or the accused, explain the reasons for your decision
in the report.
g.
You will most likely need to go back and re-interview certain
individuals as you proceed along in your investigation, depending on
the information you learn as you go along. Do not be reluctant to do
this.
4. Types of Questions:
a.
Who, what, where, why, when, how and how often – cover the
basics.
b.
Establish that the interviewee can understand you. (Englishspeaking, need any accommodation?)
c.
Ask open ended questions; be careful not to ask leading questions
which contain the “answers” embedded within the questions;
objectivity and fairness are essential to the process.
d.
Hearsay is fine; but be careful to distinguish facts from rumor and
innuendo. Ask follow-up questions. How does the interviewee
come to be aware of the information s/he is providing to you? (e.g.,
“oh, everyone knows that such and such” versus “I was there and
saw “such and such” or “I experienced this treatment at the hands of
Supervisor Jane Doe” or “John Smith told me on X date that ….”)
e.
Prepare an outline of questions for the interviewee prior to
interviewing. Caution: try to listen carefully to his/her answers. The
responses of the interviewee may lead you away from your outline,
toward other lines of questioning. That is “o.k.” Don’t miss a good
lead!!
5. Tips for Forgetful Witnesses: “I don’t remember:” Key questions to ask and
document:
“Let me give you this information, so that you can respond.”
(Refreshes recollection and gives chance to respond)
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“Is there anything else that you would like to add about this?”
(Chance to respond)
“Who do you think I should speak with concerning this claim.”
(Chance to respond)
“Is there any other evidence or fact that you believe would help us resolve
this?” (Chance to respond)
“Here is my card and pager number. If you have any other information,
call me.” (Chance to respond)
B. Privacy and Confidentiality: Advise Interviewees Regarding the Confidentiality of
the Investigation (Caveats and Pitfalls)
1. Explain that this is a confidential investigation; and it is therefore not appropriate
to “chat at the water cooler” with colleagues about what has occurred. Such
conversations might result in discipline under applicable personnel policies and
could undermine the effectiveness of the investigation.
2. Moreover, the complainant and accused are entitled to privacy. Participation in
good faith in an investigation at the behest of your employer should protect you
from personal liability; but gossiping with co-workers outside the scope of the
investigation is not protected and could give rise to a defamation action by the
accused or complainant.
3. Make clear to each interviewee that, despite the above admonitions, the
investigator cannot promise absolute confidentiality. Upon the conclusion of the
investigation, the investigator will be required to share his/her results with those
in the organization who have a “need to know” in order to make decisions.
Further explain that you may have to share the information with the accused
during the course of the investigation so that s/he can respond; and finally, if there
is any subsequent internal or external administration hearing or litigation, the
results of the investigation will most likely have to be produced and witnesses
may be subpoenaed to testify.
4. Make clear that interviewees are free at any time to participate in an investigation
conducted by a governmental agency (e.g., EEOC) and/or lodge a complaint with
an external agency that has jurisdiction concerning the subject matter at issue.
Admonitions regarding confidentiality are NOT meant to discourage this type of
activity.
5. Explain to the interviewee that s/he has an ABSOLUTE right to be free from
retaliation. Explain to him/her how to report any concerns or suspicions
regarding retaliation.
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C. Must employees participate in an employer’s investigation?
1. Do your policies/procedures provide for a duty to cooperate?
2. If the accused refuses to be interviewed, explain to him/her that you will be forced
to conclude your investigation and make findings of fact regardless, and thus the
university may be forced to render a decision without the benefit of his/her input
into the investigation.
3. Weingarten rights are implicated for represented employees – participation by
representative.
4. 5th Amendment – criminal matters.
5. Right to counsel: What if the interviewee wants counsel present? Unless
provided for in internal policies/procedures, there is generally no right to counsel
during an internal investigative interview; BUT it is a matter of perception and
fairness; don’t “gang up” on the accused; what is the university’s practice/policy
regarding this issue. Be consistent.
a. Role of counsel -- If counsel is present, s/he should be allowed only as an
observer and consultant for his/her client. The investigator should not allow
attorney to “hijack” the interview or answer questions on behalf of his/her
client.
II.
PROPER DOCUMENTATION
A.
How should you document interviews?
1. Should you record the interviews?
a.
Chilling or efficient?
b.
Do not record without consent.
c.
What if interviewee wants to record? Should you allow it?
6. Take good notes of the interviews. Should you consider having an “assistant”
present to take notes so that you are free to listen? Save notes and outlines.
Have in mind how you are going to use your notes and memos before you write
them.
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7. After the interview, should the investigator require the interviewees to sign
statements that the investigator has prepared based on the notes, attesting to their
accuracy?
B.
Written Reports at Conclusion of Investigation
1. Always prepare a written report.
a.
Introduction (Overview with explanation of when
investigator was retained and why)
b.
Summary of issues to be addressed
c.
Summary of relevant university/college policies to be
applied.
d.
List of documents reviewed by investigator.
e.
List of interviewees interviewed with dates and places
of interviews (indicate in-person or by phone – why “by
phone” only)
f.
Keep list of anyone who refused to be interviewed or
could not be interviewed. Include this information in
the report. If you chose not to interview someone, why
did you make that choice?
g.
Organize the body of the report by allegation –
particularly important with multiple allegations and/or
incidents.
h.
Introduction/background; allegation(s); policies; key
factual findings as to each allegation; conclusion.
i.
Discuss credibility of witnesses where appropriate. A
separate section regarding credibility is not necessary
and can quite often be cumbersome and duplicative.
j.
Making credibility determinations: consistency;
corroboration; detail; memory; bias. It is “ok” to
resolve disputed issues of fact by making credibility
determinations. Explain your reasoning.
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III.
k.
Avoid inclusion of unnecessary “dicta” about matters
which are irrelevant to the allegations; EXPECT YOUR
REPORT TO BE AN EXHIBIT.
l.
HOWEVER TEMPTING, DO NOT MAKE LEGAL
CONCLUSIONS. Base your findings on violations of
policy and/or limit your determination to whether the
allegation can or cannot be substantiated by the
evidence you have gathered.
m.
DO NOT INCLUDE RECOMMENDATIONS
REGARDING APPROPRIATE LEVELS OF
DISCIPLINE, UNLESS SPECIFICALLY
REQUESTED TO DO SO. Rather, if appropriate, state
that discipline may be warranted here, consistent with
university/college personnel policies and practices.
(Human Resources is then free in consultation with
counsel, to implement discipline as appropriate).
n.
Suggested remediation measures? Training and other
ideas? Meet with decision-makers and counsel
regarding suggested approach before inclusion in the
report.
o.
OVERALL: Address all issues raised; make a record
of your reasoning; avoid unnecessary controversial
comments; avoid conclusions of law; write for
posterity.
ARE INVESTIGATION “PAPERS” DISCOVERABLE
A. The adequacy of an employer’s investigation is placed “at issue” if the employer’s
theory of its defense is that it took appropriate, timely and reasonable remedial action,
in which case the employer will most likely be required to disclose all documents
related to the investigation, including the written report, and all underlying
documents.
B. Wellpoint Health Networks Inc. v. Superior Court of Los Angeles County, 59 Cal
App. 4th 110 (1997) -- Law firm retained to investigate employee’s charges of
discrimination. Court: Blanket rule excluding attorney-conducted investigations is
not appropriate. If the defendant employer hopes to prevail in litigation by showing
that it investigated an employee’s complaint and took appropriate action based on the
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investigation’s findings, then the employer will have to put the adequacy of the
investigation directly at issue, and thus the employer cannot stand behind the
attorney-client privilege or work-product doctrine to preclude a thorough examination
of the adequacy of the investigation. The employer cannot have it both ways. By
placing the adequacy of the investigation at issue, the employer has essentially
waived the protections of the attorney-client privilege and work-product doctrine.
C. But see: Davis v. City of Seattle, 2007 U.S. Dist. LEXIS 89856 (U.S.D.C., W.D.
Washington). The investigation was performed by outside counsel at the request of
the City’s EEO/AA office. The outside counsel submitted drafts of her investigative
report to the City Attorney prior to finalization of the report. The City withheld the
drafts during the course of subsequent discovery requests in litigation on the basis of
the attorney-client privilege. The court upheld the City’s decision, finding that when
conducting the investigation, outside counsel “stood in the shoes” of an employee of
the City, and therefore had submitted drafts of his/her report to the City Attorney for
the purpose of allowing the City Attorney to provide legal advice.
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