EVIDENCE 101 The EVIDENCE Model for a Reliable In-House Investigation

1. EVIDENCE 101 The EVIDENCE Model for a Reliable In-House Investigation PARMA Annual Conference 2012 � Monterey, California February 15, 2012 Brian D. Bock, Esq. Partner Fagen Friedman & Fulfrost, LLP

2. 2 Purpose of Today�s Presentation When to investigate? Conducting an �adequate� investigation Protecting the district from legal action

3. 3 Cotran v. Rollins Huding Hall Int�l, Inc. (1998) 17 Cal.4th 93 Landmark decision Strengthens employer�s chances of successfully defending against a wrongful termination action Adequate (prompt, appropriate, and effective) investigation is key

4. 4 Cotran Decision Specifically: Employer has good faith belief that a worker engaged in misconduct establishes �good cause� for terminating their employment

5. 5 Cotran - �Good Cause� �reasoned conclusion � supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.�

6. 6 Cotran - Jury�s Role Jury�s role� Limited - whether reasonable grounds existed for employer�s decision Not whether misconduct actually occurred

7. 7 Keys to an Adequate InvestigationEmploying the EVIDENCE Model Evaluate the complaint/situation Verify allegations and plan investigation Interview witnesses and gather facts/evidence Document, document, document Examine evidence and prepare report Notify those involved Corrective actions � consider options Educate to avoid future problems

8. 8 EVALUATE - When is an investigation appropriate? When disciplinary action is being considered (CBA?) Written reprimand Demotion Suspension Dismissal

9. 9 When is an investigation appropriate? When the incident exposes the District to potential liability

10. 10 When is an investigation appropriate?

11. 11 When is an investigation appropriate? Other considerations: Severity of alleged misconduct/potential harm Frequency of alleged misconduct Complainant�s credibility Identity of the accused

12. 12 When is an investigation appropriate? Other considerations: Similar complaints against accused Impact of alleged conduct on students, employees or other individuals (i.e., health, safety, welfare considerations) Whether immediate action is required (i.e., report to police, report to CPS, mandatory leave offense)

13. 13 VERIFY (and PLAN)- Commencing Investigation Promptly Evidence available and preserved Witnesses� recollections will be fresh Protection against legal actions and challenges

14. 14 Selecting an Investigator CBA, BPs/ARs - designated employees? Consider gender and personality differences Individual v. team Who? School administrator Independent outside investigator Legal counsel Police

15. 15 School Administrator Advantages Saves time Less expensive Familiar with district�s culture, policies, past practice Disadvantages Too timid Too aggressive Biased or perceived as biased (i.e., accused is an administrator)

16. 16 Outside Investigator Advantages Neutral without preconceived biases No need to maintain working relationship with individuals involved Disadvantages More expensive Require more time and background information

17. 17 Legal Counsel Advantages Legal expertise and knowledge Attorney-client privilege and work product may protect disclosure of investigative records Disadvantages? More expensive Attorney may not be able to represent district in subsequent matters related to incident

18. 18 Selecting an Investigator Characteristics: Neutral Sound judgment Experience

19. 19 What needs to be verified? CBA, BPs/ARs violated? Appropriate investigative policy and/or procedure Relevant facts to be determined

20. 20 Create Investigative Plan List all witnesses to interview Identified in complaint Personal knowledge Be flexible; list may change Match up facts to verify with appropriate witness Who can provide what information?

21. 21 Create Investigative Plan Prepare interview questions Subjects to cover in interview Avoid leading and compound questions Ask open-ended and non-judgmental questions Expand inquiries beyond �four corners� of the complaint

22. 22 Create Investigative Plan Separate complainant from accused Mandatory vs. optional leave of absence offense Administrative leave? In writing and non-disciplinary

23. 23 Create Investigative Plan Prepare memo Brief, general description of investigation Identify investigative policy and/or procedure (attach copy) Introduce investigator Warn of prohibition against retaliation Instruct but don�t promise confidentiality

24. 24 Review Documents Before Interviews Written complaint or report, if any Personnel / Site files Job descriptions Previous complaints or grievances Organization chart and roster of employees

25. 25 Review Documents Before Interviews Other sources of institutional memory Relevant policies and/or procedures Timelines After reviewing documentation, consider revising your investigative plan

26. 26 INTERVIEW - Initial Considerations Order of witnesses (Almost always) start with the complainant, or Most knowledgeable person (if no complaint filed) Time and location of interviews Take copious notes Tape recording interviews

27. 27 Conducting Interviews - Initial Considerations Representation Be serious and to the point Be unbiased, open and direct No group interviews

28. 28 Conducting Interviews - Initial Considerations

29. 29 Conducting Interviews Location and Time of Interview: Memo to individual re: interview Private office or conference room Come and go without raising comment/suspicion Remove distractions (i.e., cell phones)

30. 30 Conducting Interviews Location and Time of Interview: Where will interviewer and subject sit Allow interviewee easy access to exit Clear visual of the interviewee Comfort (breaks, water, tissues)

31. 31 Conducting Interviews Starting Interviews: Explain process, policies and/or procedures Provide copies of relevant policies and/or procedures Explain investigator�s role Explain timing of response

32. 32 Conducting Interviews Starting Interviews: Report perceived retaliation Don�t promise confidentiality Acknowledge potential disclosure of complaint; assure sensitivity Request confidentiality of interview

33. 33 Conducting Interviews Getting the Facts: Verify facts and probe for details No leading or compound questions. Ask follow-up questions Ask questions repeatedly if not answered Be thorough - get story from start to finish Ask for demonstrations

34. 34 Conducting Interviews Getting the Facts: Listen No judgmental comments Do not insinuate blame or suggest that the complainant deserved it Be sensitive, but don�t empathize Assess interviewee�s demeanor (cooperative, nervous, angry, forthcoming)

35. 35 Conducting Interviews Getting the Facts: Seek written statement? Ask for supportive documentation Notes should capture: Gist of questions Content of responses Credibility/demeanor notations Repeat significant points

36. 36 Conducting Interviews - Complainant Getting the Facts: Ask for written complaint Gather details Make credibility determinations Confirm that interviewee has conveyed all relevant information (there are no more allegations)

37. 37 Conducting Interviews - Complainant Getting the Facts: Take alleged incidents in order and ask specifics about each incident: When did it occur How often did it occur What was said or done Who was present

38. 38 Conducting Interviews - Complainant Getting the Facts: Background information Supporting documents or witnesses? Get names and specifics Ask for copies of documentation Anyone who the complainant told of the alleged misconduct before filing a complaint

39. 39 Conducting Interviews - Complainant Unlawful discrimination investigations Why complainant believes conduct was based upon their protected status Examples of differential treatment How conduct made them feel Negative impact on the work environment

40. 40 Conducting Interviews - Complainant Remedy sought? Additional information? Repeat significant points of interview; ask for confirmation Remind interviewee of retaliation prohibition and confidentiality instructions Confirmation of interview

41. 41 Conducting Interviews - Complainant Reluctant / seeking anonymity: Ascertain reasons Reassure protection against retaliation Reassure that investigation will be discrete Consider duty to investigate despite requests

42. 42 Conducting Interviews � Accused Explain: Process Although neutral, acting on behalf of employer Each allegation Seriousness of allegations Possibility of disciplinary action

43. 43 Conducting Interviews �Accused Provide employee Copies of procedures Written complaint? Witness statements? Summary of allegations? Check CBA, BPs/ARs Offer representation? Allow if requested

44. 44 Conducting Interviews � Accused Identify individual making allegation? Opportunity to respond to each allegation Review details of each allegation - admit or deny?

45. 45 Conducting Interviews � Accused Any documentation or witnesses supporting accused employee�s version Basis of employee�s belief that others are lying Anything else to add?

46. 46 Conducting Interviews � Accused Individual�s demeanor Repeat significant points and ask for confirmation No retaliation Confidentiality instructions Confirming memorandum of interview?

47. 47 Conducting Interviews � Taking the Fifth Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704 Public employee acted lawfully in dismissing employee for refusing to answer questions with possible criminal implications as part of an internal, noncriminal investigation.

48. 48 Conducting Interviews Lybarger Warning Lybarger v. City of Los Angeles California Supreme Court case, 1985 (40 Cal.3d 822)

49. 49 Conducting Interviews Sample Lybarger Warning (to be read to the employee) This investigation concerns allegations that you touched the body of a female tenth-grade student in an inappropriate manner on or about December 8, 2009. I have designated attorney Kelly R. Minnehan of the law firm, Fagen, Friedman & Fulfrost, as the investigator in this matter. You are directed to cooperate in this investigation by providing complete and thorough responses to the questions posed by Ms. Minnehan. Lybarger Warning: You have been asked to provide information as part of a District investigation. Failure to fully cooperate in a District investigation may subject you to disciplinary action, up to and including dismissal from employment. Please be advised that in order to protect your Fifth Amendment right against self incrimination in a criminal proceeding, any statements you make as part of this investigation cannot be used against you in any subsequent criminal proceeding.

50. 50 Conducting Interviews � Witnesses Eye witnesses � who, what, when, why, where, and how Corroborating witnesses � ask specific details about what they were told or witnessed Credibility witnesses � ask questions about the credibility of the person they are vouching for

51. 51 Conducting Interviews � Witnesses Any other individuals with information Assess the individual�s demeanor Repeat significant points and ask for confirmation Remind - no retaliation and confidentiality instructions Consider confirming memorandum

52. 52 Visit the Site of the Alleged Event(s) Better image of how and where the events may have occurred Opportunity to confirm credibility of allegations (i.e., could other individuals have actually overheard or seen events)

53. 53 Visit the Site of the Alleged Event(s) Search and seizure opportunities Always ask for permission first Reasonable expectation of privacy? Police search - �probable cause�; District search -�reasonable suspicion� No searches of sensitive body areas or removal or rearrangement of clothing (Education Code �49050)

54. 54 Follow-Up Interviews Resolve ambiguities or disputed evidence Allow accused or suspected employee the opportunity to respond to new allegations To question the complainant�s motive when credibility has been put in dispute Create new investigative plan

55. 55 DOCUMENT, DOCUMENT, DOCUMENT

56. 56 Document, Document, Document Remember: Thorough notes Send confirming memorandum of interview Tape record interviews? Review notes and fill in gaps Draft comprehensive reports of interviews as soon as possible Maintain separate investigation file

57. 57 - EXAMINE (and REPORT) After Interviews Review - complaint, notes, evidence Ambiguities? Gaps? How to reconcile? Make a new list of witnesses to interview New list of facts and questions Re-interview complainant and/or accused?

58. 58 After Interviews Weigh the evidence for each factual allegation �Preponderance� Explain persuasiveness of evidence Determine witness credibility Determine whether violation of (law or) policy?

59. 59 Investigative Report Date complaint received Name of investigator Names and positions of witnesses interviewed Dates and location of each interview Names of individuals present at each interview

60. 60 Investigative Report Note all documents and evidence reviewed Describe complaint investigated Policies and/or procedures followed in investigating complaint Note that all interviewees warned about retaliation and confidentiality

61. 61 Keep audience in mind�third-party Jury, employee, public Exclude irrelevant evidence Attached documentation/evidence Sign and date the report

62. 62 Investigative Report Organize logically - chronological/topical Make a decision Separate out and describe each allegation Recite the relevant evidence for each allegation Make a factual finding regarding each allegation (sustained/denied/inconclusive)

63. 63 Investigative Report Facts v. opinions v. conclusions Conclusions/opinions without facts = useless Explain discounted evidence State conclusions in terms of objective fact rather than legal conclusion

64. 64 Investigative Report Recommendations for corrective action at conclusion of report? Required by policies and/or procedures Investigator�s knowledge and experience Do not include a final disciplinary decision

65. 65 NOTIFY (and CORRECT)

66. 66 Corrective Action What form of discipline? Verbal Reprimand Written Reprimand Notice of Unprofessional Conduct Notice of Unsatisfactory Performance Demotion Involuntary Transfer Suspension Dismissal

67. 67 Corrective Action � Form of Discipline? Considerations: Employee�s status certificated v. classified; probationary v. permanent CBA (e.g., progressive discipline policy) Seriousness and frequency of offense Treatment of others for similar offenses Grounds for discipline (CBA, BPs/ARs, Education Code � 44932) Morrison factors

68. 68 Corrective Action � Form of Discipline? Follow all applicable contract language, rules, regulations and laws regarding notice, due process rights, personnel file inspections, etc... Consult with legal counsel regarding applicable contract language, rules, regulations and laws

69. 69 Corrective Action � Notice Insurance carrier? CTC? Change in employment status due to an allegation of misconduct 5 CCR � 80303

70. 70 Corrective Action - Notice to Complainant Result of investigation Explain conclusion �Appropriate action was taken� - no specifics Thank complainant for coming forward and immediately report any future misconduct Copy of report to complainant? Depends (CBA, BPs/ARs)

71. 71 Corrective Action � Notice to Accused Conclusion and result of investigation Invite employee back from any leave Provide directives where appropriate Contain in written reprimand, dismissal charges, etc� Copy of report? Depends (CBA, BPs/ARs)

72. 72 Corrective Action - Notice to Witnesses Notice to other witnesses? Copy of investigative report? (Check CBA, BPs/ARs) Witnesses entitled to a copy of a tape-recorded interview

73. 73 EDUCATE �Redistribution / Revision / Training Consider: Distributing BPs/ARs to employees, students, parents, and community members Amending student and employee handbooks and mandated parental notifications Staff training

74. 74 Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256 - California appeals court provides additional guidance as to what constitutes �an appropriate investigation under the circumstances� as raised under Cotran.

75. 75 Silva Investigation Guidelines Conducted by written policy Well-trained, objective investigator(s) ASAP Confidential manner Opportunity to be fully and fairly heard Documented results

76. 76 Silva�s - 10 Point Plan #1 Uninvolved HR representative #2 Trained investigator #3 Prompt investigation #4 Witness interview forms #5 Witnesses own written statements

77. 77 Silva�s - 10 Point Plan #6 Open-ended questions to elicit facts not opinions #7 Off-site or telephone interviews #8 Encouraged to contact the investigator if they had anything else to add #9 Promptly notified accused of the charges; provided an opportunity to challenge, correct or clarify allegations #10 Accused given opportunity to comment on collected information

78. 78  Most common legal challenges asserted by accused: Slander Libel Intentional Infliction of Emotional Distress Wrongful Termination

79. 79 A SUCCESSFUL INVESTIGATION REQUIRES: EVIDENCE Evaluate the complaint/situation Verify allegations and plan investigation Interview witnesses and gather facts/evidence Document, document, document Examine evidence and prepare report Notify those involved Corrective actions � consider options Educate to avoid future problems

80. Thank you for attending and participating!