Conducting Investigations of Alleged Misconduct 10 Suggestions to Help Protect Your Students, Employees, District, and Yourself

Abraham F. Barker, Shareholder

More frequently, it seems school district administrators are being asked to conduct investigations into alleged misconduct that was previously the responsibility of law enforcement and protective services. As this trend develops, administrators are faced with high expectations to quickly reach correct conclusions but are not always provided with sufficient information, tools, and support to do so. The below suggestions are intended to help the investigator and the district reach their goal of determining the truth behind the claims, but they are not a substitute for specific legal advice. All investigations are different, and it is recommended that administrators contact their legal counsel with questions concerning the particulars of the issue they are facing.

1. The Formula for a Successful Investigation is in Place Long Before a Complaint is First Made

If you wait to determine how to initiate and conduct an investigation until the complaint is made, you will likely feel behind, rushed, and uncertain of the steps to take. This could lead to missing key evidence or witnesses, and result in conclusions that may be difficult to defend.

Its important to realize that investigations can be carried out pursuant to several different district policies, including: DIA (Employee Welfare/Harassment and Discrimination); FFH (Student Welfare/ Harassment and Discrimination); DGBA (Personnel/Employee Complaints and Grievances); FNG (Student Rights and Responsibilities); and FFI (Freedom from Bullying). For each of the different types of investigations, there should be a plan in place concerning who will be responsible for overseeing the investigation and who the investigator(s) will be. It is also a good idea to decide for which types of claims, such as those brought against administrators or board members, you want outside legal counsel to conduct the investigation. Counsel can often help provide a stronger sense of impartiality and help insulate the district from liability and disclosure of specific information discovered during the investigation.

For the purposes of this article, we will assume a Title IX claim alleging an improper teacher-student relationship has been filed, as these claims generally are the most comprehensive encountered by districts and, unfortunately, appear to be on the rise. Successful investigation of these claims starts with designating a Title IX Coordinator (who will oversee the investigation and assign investigators) and publicizing the identity of that individual (or individuals, depending on the size of your district) so that internal responsibilities are clearly defined, and a claimant or interested party will know where to start.

2. Make Sure Board Policies are Complete and Understood

A district’s Board Policies should dictate’ the following:

3. Who may (or must) conduct the investigation; 4. Definitions of prohibited conduct; 5. Hearing and appeal processes; and 6. Reporting or notice requirements.

It is also critical that administrators, whether they are running the investigation, conducting the investigation, or acting in supporting roles, understand these policies and the need to follow them or document why they were not or could not be followed precisely.

3. Get as Much Initial Information from the Complainant as Possible

Often, the investigation will commence with the Complainant making an allegation of misconduct. In these instances, it is important to get as much information as you can from the Complainant during that initial meeting. Ask that the Complainant put their allegations in writing. If the Complainant declines or cannot write down the allegations, ask them to acknowledge and initial the investigator’s notes of the interview. Get the Complainant to open up by taking the complaint seriously, being sensitive to what may be difficult allegations to relate, and stating that the investigation will be conducted fairly and objectively. Before letting the Complainant leave, make sure that all of the conduct has been described, that the time, date, and location of the conduct has been provided, and that the Complainant has advised as to potential witnesses and evidence, such as texts and photographic images.

4. Do Not Promise Confidentiality

During the process of interviews, do not promise that information will be kept strictly confidential. Instead, explain that information will be kept as private as possible, but that the nature of investigating allegations of misconduct requires that some information be shared in order to reach a valid conclusion as to what occurred. It is prudent to tell the witnesses that they should keep the substance of their interviews confidential until completion of the investigation in order to preserve the integrity of the process.

5. For All Interviews, Consider the Following

Regardless of the party being questioned (Complainant, Accused, Third-Party Witness), consider taking the following steps during interviews: 1. Thank them for their participation and cooperation; 2. Discuss confidentiality and their sharing of information with others; 3. Address the nature of the investigation, including that the matter is serious, the district has an obligation to investigate, and there will be no conclusions drawn until all the facts are gathered and analyzed; 4. Explain the purpose of the interview is to obtain an accurate understanding of what happened, and to identify all evidence and witnesses who may help reach that understanding; 5. Ask open-ended questions to allow elaboration; 6. Advise that attempts to retaliate against any party to the investigation or providing false information will not be tolerated and engaging in such behavior may result in discipline up to and including termination; 7. Pay attention to speech patterns, body language, and non-verbal cues to help determine truthfulness; and 8. Take notes or record (if taking notes by hand, remember they can be subject to disclosure—so be careful to not overshare personal opinions in the notes).

6. Questions for the Complainant

When interviewing the Complainant, consider asking the questions or types of questions below. 1. What happened? Get specifics. Discuss confidentiality and their sharing of information with others; 2. When and where did this take place, and how long did it last? 3. How often did it happen and is it still going on? 4. Where did this occur? 5. Did anyone else see this happen? 6. How did you respond? 7. What, if anything, did the accused say? 8. What is your relationship to the accused? 9. Have you reported this or told anyone about this previously? If so, who? How often did it happen and is it still going on?

1. Do you know anyone else that may have information about this incident? 2. Have you sought medical treatment or counseling?What is your relationship to the accused? 3. Are there any related notes or physical evidence? Is it still going on? 4. How do you want this situation resolved? have information about this incident? Where did this occur?

7. Questions for the Complainant 8. Often, the Accused is interviewed last and can be the most sensitive of the interviews conducted. Resist the temptation to form an opinion before this crucial interview. Pay attention to credibility clues and consider whether there has been any similar allegations or discipline. Resist bias based on personal dislike, unrelated job performance or issues outside of work, tendency to either believe or not believe an accuser, males versus females, or the perceived veracity of younger versus older individuals.

Similar to questions for the Complainant, there are specific questions you may wish to ask the Accused as well.

1. What happened? 2. If the Accused denies allegations: why would someone make this up; where were you when the alleged incident occurred; do you have anyone to corroborate your whereabouts? 3. What is your connection to the Complainant? 4. Tell me everything that was said during the incident. 5. Are there notes, documents, texts, or emails that support your account of what happened? 6. Who else would know about this incident? 7. Have you personally spoken with anyone else about this incident (who, when, and what was said)?What is your relationship to the accused? 8. If there was physical conduct, can you demonstrate what happened?

8. Follow all Leads

Each witness interviewed should be asked if they know of anyone who might be a witness or have knowledge of the incident, and everyone named should be interviewed as well. Follow all of the rabbit trails to conclusion where you can. Effort must be made to speak with everyone that the Complainant or Accused lists as a potential witness, especially if it is alleged they were present or have some other type of first-hand knowledge—such as seeing texts or emails. Keep records of your attempts to contact these individuals, and if they refuse to meet or participate, make sure that is reflected as well.

9. A Complete Report Must be Made

At the conclusion of the investigation, a complete report must be made. The report should contain the following: 1. The initial complaint or notes of the complaint; 2. All notes from all interviews; 3. All witness statements; 4. All physical evidence (emails, documents, texts, medical reports); 5. The investigator’s thorough discussion and analysis of all the evidence and information collected; 6. The investigator’s conclusions based on that discussion and analysis; and 7. Recommendations of the investigator.

10. Only Share What You Must and Take Action if Needed 11. The Complainant is entitled to results of the investigation but not necessarily the entire report or investigative file. The Complainant should be provided with a written summary of the findings and the conclusions of the investigation.

If it is determined that the allegations of misconduct are true, appropriate disciplinary action should be taken, and any required reports to SBEC and other agencies should be made. The Complainant generally is not entitled to know what, if any, specific actions were taken.

Investigations into misconduct are all different, and each presents unique challenges for the district and administrators. Complete discussions involving the comprehensive steps to take during investigations, including how to engage and work with law enforcement, how to handle sensitive evidence, how to interact with student witnesses and parents, and how to ferret out “consensual” teacher-student relationships with reluctant witnesses can be addressed in training sessions specifically designed to a district’s interests or needs. If interested in such a program, districts are encouraged to speak with their legal counsel of choice.

Any questions concerning these materials can be addressed to abarker@edlaw.com.