Investigation for Administrators How to Conduct Internal Policy and Procedure Investigations

1. Investigation for AdministratorsHow to Conduct Internal Policy and Procedure Investigations Presented by the Mississippi Robert Laird, CFE, CSSD Division of School Safety Mississippi Department of Education

2. Participants will become familiar with the authority, investigative techniques, evidence collection and documentation relating to investigation of an administrative nature to include employee misconduct, student misconduct, Title IX and discrimination practices. COURSE OBJECTIVE

3. Criminal Is carried out by a commissioned law enforcement law enforcement officer. Investigates violation of a federal or state criminal code. Is targeted to criminal conviction. Carries constitutional protection for the subject. Administrative Is conducted (hopefully) by a person trained to do so. Investigates a violation of agency policy, procedures OR state or federal law. Is targeted to obtain information. Does not necessarily carry constitutional protection for the subject. Results my be used in a criminal trial. Definitions

4. Definitions • Subject • The person on whom the investigation is centered as committing the act. • The target of the interview. • Victim • The person/entity harmed by the subject’s actions. • Interview • Personal interaction designed to obtain information, facts, and evidence. • Interrogation • Same as above except it is highly subjective in nature.

5. Definitions • Signed Statement • A statement of facts, observations, and knowledge wherein the author signifies their authorship by signing the document. • Sworn Statement • Same as above except the author takes a legal oath as to the veracity of the statement. • Confession • When a subject admits to prohibited actions; usually obtained via a sworn statement or signed statement. • Investigator • A person assigned to collect facts, information, intelligence, and evidence regarding an event.

6. Law, policies and procedures in the Historical Context • Based on old English common law • Had three specific goals: • Cite mandatory conduct. • Cite prohibited conduct. • Cite negative sanctions for violation of the policy. “That which is not mandatory, is prohibited.” H. R. Tolkien “That which is not specifically prohibited, is permitted.” Laird

7. Types of Administrative Investigations • Employee Misconduct • Policy and Procedure Violation • Violation of IDEA • Violation of MDE Accreditation Standards • Violation of MBE/MDE Policies and Procedures • Student Discipline • Title IX US Code (Sexual Harassment) • Discrimination (Civil Rights Act of 1964) • Determination of Cause

8. Elements of Proof • Those constituent parts of an action that would tend to prove it occurred and the perpetrator was the individual that did it. Black’s Law Dictionary

9. Standards of Proof • Beyond a reasonable doubt: The facts lie by virtue to establish guilt. • Probable Cause: That a cause of action existed based on what a reasonable intelligent man would believe. • Clear and Convincing: More than preponderance and less than beyond a reasonable doubt. • Preponderance of the Evidence: That degree of proof which is more provable than not. • Reasonable Belief: Knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe something has occurred. Black’s Law Dictionary “Ye Shall know the truth and the truth shall make you free” Inscribed of the entrance to CIAHQ “Abandon all hope, ye who enter here” Inscribed over the barracks at Camp Perry

10. Elements of Proof That a violation occurred. The employee committed an act in violation of the law. The employee committed an act in violation of policy or procedure. The employee refrained from performing an act in accordance with job description. Employee acted with reckless disregard for policy, procedure, or common sense. Employee Misconduct • Standard of Proof • Clear and Convincing_____ • Burden of Proof • The appointing authority “Justice is a virgin often sacrificed to the god of equality” Major Robert O'Neal

11. Violation of IDEA • Elements of Proof • Quantifiable evidence of a violation • Standard of Proof • Preponderance of the Evidence • Burden of Proof • The challenging authority

12. Violation of MDE Accreditation Standards • Elements of Proof • That the district in question was not compliant with cited MDE standards of accreditation at set forth in MBE Accreditation Standards. • Standard of Proof • Reasonable belief • Burden of Proof • MDE

13. Violation of MBE/MDE/District Policies and Procedures • Elements of Proof • The policy/procedure did exist. • It was disseminated to staff. • Staff were in a position to know about it. • The subject did violate the policy/procedure. • Standard of Proof • Burden of Proof • On the school district Hell hath no fury like a bureaucrat scorned. Milton Friedman

14. Student Discipline • Elements of Proof • The student was aware the behavior was prohibited. • The student chose to engage in the behavior. • Standard of Proof • Reasonable Belief • Burden of Proof • On the administrator The bigger the real-life problems, the greater the tendency for the education profession to retreat into a reassuring fantasy-land of abstract theory and technical manipulation. Tom Naylor

15. Title IX US Code (Sexual Harassment) • Elements of Proof • Intimidating, hostile or offensive work environment. • Sexual Harassment so severe, pervasive and objectively offensive that it deprives one of educational opportunities and benefits. • The agency is deliberately indifferent to the harassment. • The circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. • The harasser's conduct must be unwelcome. • There are two types of sexual harrassment: • quid pro quo sexual harassment • hostile environment sexual harassment. • Standard of Proof • Clear and Convincing • Burden of Proof • On the affiant

16. Discrimination (Civil Rights Act of 1964) • Elements of Proof • Victim must prove member of a protected class. • The victim was discriminated against solely because of their class. • Said discrimination was the substantial or motivating factor behind the action. • Standard of Proof • Clear and convincing. • Burden of Proof • On the affiant. I favor the Civil Rights Act of 1964 and it must be enforced at gunpoint if necessary. Ronald Reagan  , Former U.S. President

17. Determination of Cause • To determine who, what, why, when, or how a condition is generated or continued. Investigation may be likened to the long months of pregnancy, and solving a problem to the day of birth. To investigate a problem is, indeed, to solve it. Mao Tse-Tung

18. Background Investigations • References are utterly worthless and unreliable. • Ensure you have a release from the applicant • Specifically ask the applicant if they have ever been arrested, questioned, or convicted of ANY misdemeanor or felony to include expungements. • If a previous employer advises they only confirm employment dates and eligibility for reemployment, obtain a statement so stating and write on it that the employer refused to furnish additional information after being furnished with a lawful release. Do it in plain view of the employer. • Corroborate derogatory information thru two additional sources. • Interview co workers and supervisors. • Ask questions about character, associates, reputation, loyalty, honesty, integrity, and ability. (CARLA) • Document all phone interviews. • If an employer wants to say something “Off the record” alarms should sound in your head. • The burden of proof is on the applicant, not the agency. • If the background check is pending, ensure the applicant is notified employment is contingent upon a successful background check. • (Cite Code

19. Exercise • Divide into groups and discuss what types of investigations you do in your job.

20. Legal Authority for Investigation • Mississippi Code of 1972, Annotated • Section 37-9-14 • Section 37-9-59 • 37-3-11 • Executive • Implied

21. Qualifications for a Competent Investigator • Excellent interpersonal communications skills. • Extremely confident and resistant to intimidation. • Assertive personality. • Extremely high professional ethics. • Intelligence with common sense. • Wide range of experience outside of specialty area. • Solid liberal arts education. • Inquisitive nature. • Detail oriented. I never give them hell. I just tell the truth and they think it's hell. Harry S. Truman An accomplished investigator measures his abilities in the quality of his enemies Robert O. Laird

22. Famous Investigators

23. Barriers to Quality Investigations • Personal agenda on the part of the appointing authority • Professional agenda on the part of the appointing authority • Incompetent investigator • Outside interference “A committee is an animal with nine mouths and no brain.” Samuel Clemens

24. Investigative Techniques

25. Should take place in a non threatening environment but not on the subject’s turf. Place the subject at ease and ID yourself. State the nature of the investigation and interview. The subject has no constitutional rights in an administrative investigation. Wear dark clothing and sunglasses if you want to establish dominance. Do not advise subject they are subject. Do not discuss other allegations unless you’re playing mind games. You are there to get the truth not fulfill an agenda. The Interview

26. Is generally confrontative in nature. Affords the opportunity to confess. Can be cathartic in nature. Know your subject. Non-Compliant behavior is ALWAYS a choice the student consciously and willfully makes. Interrogation

27. Short and confined to one topic. Should be clear and easily understood. Watch phraseology and language. Not everyone speaks the same language. Ask precise questions. Calls for specific answer. What did you do? Where were you? What did you observe? Use discerning questions. Should be relevant to the subject. Question Phraseology

28. Extended answer questions. Soliciting a “yes” or “no” restricts information. Leading questions. Not really good as it influences the response. Is a trait of incompetent investigators. Can be used to confirm and clarify information. Double or triple negatives. Didn’t you try to calm the student before restraint? Didn’t you know you had to report a teacher molesting a student? Complex questions. Cover more than one topic. Require more than one answer. Require a complicated answer. Attitude questions. Designed to influence the mood of the subject. Types of Questions

29. General to Specific. Generally the most efficient. Is a natural logical progression. Seek general information before exploring details. Reaching Backward. Start with known information and ask questions to fill in the blanks. More specific estimates of quantities. To provide objective measurable type information. Comparison. Provide a frame of reference. Question Sequences

30. Controlled Answer Techniques • To induce a person to admit. • To induce a person to agree to give information

31. Directing the Interview • Free Narrative • Orderly continuous account of something. • Interviewer must control and direct subject. • Direct Examination • Brings out a connected account of something. • Begin with non threatening questions. • Ask questions in manner to develop facts in the order of occurrence. • Ask only one question at a time. • Give subject ample time to answer. • Cross Examination • Confirm and “fill in the blanks”. • Detect evasion, conflicting information, vague answers etc.

32. Exercise • Divide into groups of three and have team members conduct an interview regarding subject’s educational and professional background and investigative experience.

33. I’m not saying anything without an attorney. Who told you that. I have a right to know. Seduction. Intimidations. Threats. What proof do you have? Pretending to be dumb. Pretending to be too smart. Mind Games Subjects Play

34. Kinesic Interviewing Primary Human Motivational Factors: Money Ideology Conscience Ego

35. Deception • All homo sapiens without exception lie. • Adults: 3 lies per day • Juveniles: 7 lies per day • Homo Sapiens lie because it is perceived to be in their best interests to do so.

36. Why do people lie? • They think they can get by with it. • They do not fear punishment for it. • The risk of discovery outweighs the perceived benefit. • To protect someone else. • To further an agenda. • For the fun of it. • To obtain money, sex, or power.

37. Culture Values Ethics-2 Ethics-1 Ethics Gap

38. Artistic Deception • Tell the truth; but not all of it. “I did not have sex with that woman.” “It depends on how you define sex.”

39. Artistic Deception • Tell the entire truth; but in such a way as no one will believe you. “If I had killed Nichole; How I would have done it.”

40. Artistic Deception • Ignore the question in it’s entirety and hope it will go away. • Why does the PNA allow HAMAS to target Israel with rockets?” • “We recognize Israel.” • “Why does the PNA allow HAMAS to exist as a terrorist group?” A. “We have no proof HAMA is a terrorist Group.”

41. Artistic Deception • Deny everything; admit nothing; and demand proof

42. The Physiology of Deception • You first need to establish a “base line” of kinesic behavior in order to evaluate the subject in an interview. • It helps to have a second interviewer just to watch the subject. • 7% of communication is via words. • 38% of communication is via tone and timbre. • 55% of communication is via facial expression and body movement. • Deception causes physical and mental stress. • Stress will be demonstrated by the body. • This is the principal of the polygraph. • Heart Rate • Breathing Rate • Skin Salinity • Blood Pressure

43. The amount of space and types of objects among interviewer and subject: Never interview the subject in their office or classroom. Make them come to you. With some subjects a barrier works best. You may want to put the subject in a covertly uncomfortable chair. Avoid an overt “Gestapo” environment. Dominate the interview unless you want to go for a “trap” situation. Distance communicates intimacy: 0-18”: intimate space reserved for family and friends. 08-24”: Personal space for most interpersonal interaction. 4-12’.: Social/consultative distance. Proxemics

44. Indicators of deception Sitting in a slouched manner. Particularly when combined with crossed arms and looking to the right. Standing too far away for the situation. Appearance/Dress/Deportment Leaning away Tightly crossed arms-discomfort/deception Loosely crossed arms-defiance/possible deception. Hands on hips is an attempt to establish dominance. Body

45. Indicators: Rolling Eyes: Frustration or aggression Avoidance of eye contact (Careful it may be cultural such as Oriental, Hispanic, Indian Staring often means an attempt to establish dominance Wide open eyes will indicate surprise or a sensitive question has been asked. Lidded eyes indicate deception or confidence. The blink rate may dramatically increase during deception. Pupils will dialate during deception. Looking to the left indicates recalling factual information. Looking the right indicates the mental construction of something. May be deception. Eyes

46. Furrowing Brow: Not happy with statement may indicate deception. Frown: Concentrating or uncomfortable; Grimace: Doesn’t like what you're saying or you just hit a sensitive point. Lip Biting: Nervous or feeling pressured. Pursed lips Covering mouth Rubbing nose/animated gestures Tight facial muscles or lips-Deception Licking lips Throat Clearing Face

47. Wringing hands: Uncompfortable with topic/question. Exagerated gestures. Hands on hips: Attempt at dominance Playing with objects (Pen clicking, car keys, et al.) Pointing: Aggression possible attempt to intimidate. +Mandates disciplinary action for students engaged in serious or violent acts. Mandates all employees report. Definition of unlawful is any violation of Title 97 Mississippi Code. Violent acts are so cited in the text. Hands

48. Physical Evidence Evidence that can be seen, touched, smelled, or felt. Forensic: Documentary: What is a legal document?

49. Statements • Signed: Typewritten in subject’s own words. You draft the statement and have subject sign it. • Sworn: Typewritten in subject’s own words. You draft the statement and have subject sign it in front of an authroized official. (judge, attorney, district superintendent, etc.) • Investigative: Your report of a conversation you had with someone.

50. Polygraph • Not admissable in court. • Is an investigative tool. • Will tell you how to direct an investigation. • Is only effective if the polygrapher is a kinesic interviewer. • Excellent intimidation tool.