Investigation Tips From the General Counsel’s Perspective

Who? Offices – HR – Affirmative Action/EEO/Civil Rights – Employee and Labor Relations – General Counsel Complainants – Employees/faculty – Students – Prospective employees – Visitors? 2

Who? We are talking about people. And people have – Emotions – Tempers – Differences Some are – More fragile – Indignant – Friendly – Rude Do these characteristics impact our investigations? 2

Foundations Build and maintain the credibility of your office – How? Confidentiality and honesty Meet your deadlines Be responsive to complainants Don’t over-promise Beware advocacy 2

Foundations Are your deliverables in sync with your training/website/brochures? Are there obstacles to filing complaints? – For example, is your policy cumbersome? – Where is your office? Is your campus a funnel or a spider web? How can we improve? 2

What is the point? An investigation is designed to move from point A (the complaint) to point B (the report). Protect the rights of all parties. Keep your supervisor happy. Keep the General Counsel happy. Don’t make any enemies. Write a well-reasoned report based on evidence. Easy, right? 2

Interviewing the Complainant Prepare, prepare, prepare – a very important step that many interviewers skip. Listen, listen, listen – and then ask the right questions. Can complainants just “put it on file?” Should you have the complainant sign a form or even the notes from the meeting? 2

Interviewing the Complainant Be objective – there are two sides, and you should not take either one at this point. Is advocacy ever appropriate? Don’t be afraid to refer them to a more appropriate office. Educate them about the parameters of your office. Be aware that some may try to use your office inappropriately. 2

Interviewing the Complainant Analyze the credibility of the complainant – Is there a timeline of events? contemporaneous notes? witnesses you can contact? Don’t promise confidentiality Impress confidentiality upon the complainant. Listen, listen, listen. 2

Interviewing the Accused When should the accused be interviewed? Background work is needed prior to the interview – Read the personnel file – Ask discrete questions from people you trust Prepare a list of questions There are several different questioning methods. 2

Interviewing the Accused Conducting the interview: Be cordial and begin with easy questions: – How long have you been at the university? – Current position? Other jobs? Etc. Method #1 – Relaxed – Ask the same question in several different ways throughout the conversation. – Works best when the issues are minor and the accused person is a supervisor. e.g. investigating a minor union grievance 2

Interviewing the Accused Method #2 – Rapid Fire – You can always start with method #1 and then progress to other techniques This method requires a thorough list of questions – The idea is to keep the interviewee off balance This technique works best with “hostile” personalities, and when the accusations are more serious. 2

Interviewing the Accused Method #3 – Surprise – Insert the most critical question among a group of “routine” questions. – The idea is to have the interviewee let his guard down. Don’t be a passive listener. You must be active in order to advance the investigation. 2

Interviewing Witnesses Don’t disclose the complainant’s name or the actual allegations if possible. Require confidentiality. Interview witnesses as close together as possible. Very important so that stories are not compared or contaminated. 2

Special Problems with Sex Assault Complaints The “Dear Colleague” Letter Are the police involved? – If so, their investigation should take priority. Interviews should be conducted carefully and perhaps with support personnel present. Your notes may be requested by the police or for litigation purposes. 2

Litigation is always possible Use sparingly. can be useful when you need to document something. Finish the investigation on time. Be as succinct as possible in the report. Don’t be paralyzed by the fear of litigation. 2

Avoid Loose ends – interview everyone who could impact the case. – But, protect the rights of the parties. Stray comments from investigators that question the conclusions in the report. An investigation that pauses too often or too long. 2

What does the General Counsel want? Communication during the process. Consultation during the process. – May need to send a litigation hold letter; – May need to consult with president or the board. Conclusions based on the evidence – May require a credibility assessment/determination – No guesses 2

What does the General Counsel want? A careful weighing of the evidence – Inconclusive? That’s OK sometimes – The accused is not believable because he made soft denials? That’s also acceptable sometimes. Base the investigation and conclusions on legal principles, BUT it’s your policies that matter. Make recommendations, but give the decision-maker some flexibility. 2

Conclusion Establish your office as a user friendly environment: – Be timely, objective, and fair. Prepare for your interviews – Use your attorney during this part of the process Write a clear, succinct report based on the evidence you gathered. Be confident. 2