Employee Misconduct Now What? Michigan Association of School Personnel Administrators

1. Employee Misconduct Now What? Michigan Association of School Personnel Administrators 2012 Winter Conference Nancy Mullett (269) 966-3000 November 28, 2012

2. Recent Headlines and Events • Penn State • Misconduct scandal prompts L.A. schools to send 604 teacher discipline cases to state (CBS News) • Indiana had dozens of teacher sexual misconduct cases in 5 years (CNN) • Since 2006, 108 Spokane WA employees were put on paid leave.  Of those on leave, 70 employees resigned.  In the end the district paid out more than $1 million. (KREM.com) • Record number of discrimination/harassment complaint filings. (Michigan)

3. Topics to be Covered • Why You Investigate • Who Should Investigate • How to Prepare • Interview Process • Documentation • Special Situations • Pitfalls • Points to Remember

4. Why You Investigate - Triggers • Many Circumstances May Prompt an Investigation • Formal (or informal) Complaint • Co-worker Reports (direct or rumor mill) • Violation of Workplace Rules • Theft or Suspected Theft (embezzlement) • Drug Use or Activity • Student Allegations/ Student Disclosures • Anonymous Complaints • Workplace Accidents

5. Why You Investigate – High Level • To determine if misconduct has occurred. • To determine whether Board Policy has been violated. • To determine if prohibited harassment or discrimination occurred. • To determine if retaliation for a report of misconduct/harassment/discrimination has occurred.

6. Why You Investigate – Ground Level • Gather facts and relevant evidence • Provide due process • Provide basis for management decision on what action if any to take • Establish expectations of behavior • Provide reassurance that misconduct will be taken seriously • Enforce and comply with a variety of anti-harassment policies where the obligation to investigate is part of the employer’s or school’s best practice to avoid liability • Investigation is not for the purpose of law enforcement or prosecution

7. Who Should Investigate • Internal or external • Skill-Set • Ability to judge credibility / Common sense critical • Understands the importance of investigation • Ability to think on their feet and ask follow-up questions and (with kids) go with the flow, anticipate defenses • Ability to be impartial, objective, and non-judgmental • Ability to determine the scope of the investigation • Knowledge of school policies and potential employment or other issues • Time to conduct investigation on a relatively prompt timetable • Effective note taker, organized, analytical thinker • Knowledge of child development if with students

8. How to Prepare for Investigation • Objective is to obtain sufficient information upon which to make decisions (or take action), collect reliable evidence and information, documentprocess, and recommend action – decision to act is someone else’s

9. How to Prepare for Investigation • Preliminary Matters – Sweat the Small Stuff • Identify investigator • Review collective bargaining agreement • Determine if there is a contractual provision impacted • Determine if other employment agreements exist • Decide whether to place employee on administrative leave • Collect and review board policies • Review work rules or employee handbooks • Review Incident Report

10. How to Prepare for Investigation • Preliminary Matters – Pay Attention to Details • Review personnel file • Review prior complaints against individual • Review prior complaints made by complainant • Determine whether police or CPS should be notified • Review any complaint procedure in place (harassment) • Review any videotapes or other documents relevant to complaint • If students are interviewed – decide if parents should be notified – and when

11. How to Prepare for Investigation • Consult with others (HR, Board, Administration) • Need to understand their objectives • Be familiar with the allegations • Do not make any assumptions about the truth of the allegations • Determine what evidence is relevant and necessary • Have a clear understanding of what you are trying to prove • Secure emails, telephone records, cell phones, text messages, internet usage, videotapes – PRIORITY ATTENTION

12. How to Prepare for Investigation • Be aware of the rights of the person you are interviewing • Due process – notice and meaningful opportunity to be heard • Employee right to representation • Weingarten rights (reasonable likelihood of discipline) • Garrity Rights (criminal charges) • Right to attorney (adult and student) • Parents notified • Consider whether you should use outside legal counsel • Decide if second person will be present during interviews

13. How to Prepare for Investigation • Investigation will not always be the same • When dealing with students be prepared to throw your “plan” out the window – be flexible • Circumstances or conduct prompting investigation will determine manner and scope • Information provided by witnesses almost always changes the scope – be flexible • Investigate Promptly – won’t get better with time • Avoid unnecessary delay • Whenever possible, begin the investigation immediately • Work diligently to conclude the investigation – no delay

14. Interview Process • Determine initial timeline for investigation if possible • Select a private and quiet interview space • Schedule sufficient time for interview • Create a consistent opening statement • Purpose of the interview • Any rights and obligations • Process to be followed • What they can expect to happen

15. Interview Process • Determine order of interviews • Interview complainant • Interview witnesses to the behavior or action that forms the basis for the complaint • Interview witnesses identified by the complainant • Interview the person who is the subject of the complaint • Additional witnesses identified by the subject of the complaint • This is not set in stone - may interview subject of complaint before other witnesses – may need follow up • Prepare an outline of all questions to be asked and topics to be covered (need to be flexible)

16. Interview Process • Prepare specific questions - should be open-ended, unbiased questions. Avoid yes/no questions. • Review questions with legal counsel • Children - avoid questions about time and distance • Give minimal notice of interview to witnesses and union • Decide ahead of time how to handle waiver of union representation (if applicable)

17. Interview Process • Introduce yourself and explain the nature of the investigation – Consistent opening statement • Put witness at ease – particularly students • Inform subject of complaint that investigation could lead to discipline – prior to asking any questions so that complainant can obtain union representation, if applicable • Explain how witness’s statement may be used • Need to know basis • Cannot mandate confidentiality • Take verbatim notes • Allow time between interviews to update notes

18. Interview Process • If requiring a written statement – tell witness up front • Have witness write statement – with direction/not coaching • If you have a written statement clarify origin and purpose • Determine if statement is a recorded recollection of highlights or a detailed account • Make sure all statements are signed, dated and legible • READ STATEMENTS!!!! (Peyton Manning, Drew Brees…)

19. Interview Process • Witness interviews • Interview separately not in a group • Emphasize need for completeness, accuracy, and truth • Be mindful of additional conditions and events that need to be documented (witnesses spoke to each other before, threats made if statement given) • Cover any other similar incidents or the lack thereof • Be mindful of word choice. Write (and speak) like a regular person; "before" not "prior to." Don't refer to the "victim," use names • Ask who, what, when, where, why, and how questions • Ask for specific detail

20. Interview Process • Identify the context of incident • What was going on before • Take steps to assure that the witness understands the question you are asking • Ask witness (particularly students) to restate the question you asked • Always remember that what you say may not be what witness hears (ex. be brave and tell the truth) • Make sure the answer you are getting is to the question you asked • Are you saying… • Do you mean

21. Interview Process • Ask questions about inconsistencies and gaps in information • Prompt with sequence questions – starting with what you know • Ask questions about discrepancies with previous statements • Always review and compare to written statements • Is there a way to corroborate statement • Journal • Handwritten notes • Ask who they have told – what have they have heard

22. Interview Process • Find out what witness did after incident • Give multiple opportunities to correct discrepancies and supplement information • Do not give impression that you have pre-judged allegations • Do not fill in the gaps for witness • Do not finish sentences for witness • Silence really is golden

23. Interview Process • As much as possible prevent interruptions during interview • There is no need to share all information obtained through the investigation with the witness • Share only those details that are needed to effectively interview the witness

24. Interview Process • Interviewing subject of complaint • Ask about relationship and prior contact with complainant • Ask if subject of complaint can think of any reason why complaint would have been made • Try to get agreement i.e., Is it possible…, Would you agree that….(ex. I can understand why she thinks I might be stalking her) • Ask who he/she thinks you should interview (common witnesses can be pivotal) • Before concluding interview ask if there is any other information they have to share • Remind of ‘no retaliation” policy • May want to direct subject - no contact with complainant or other witnesses to avoid taint or allegation of retaliation

25. Interview Process • If subject of complaint is uncooperative • Encourage participation by explaining the investigation process, answering any questions the witness has, and reiterating the prohibition against retaliation (if applicable) • An employee can be compelled to cooperate in an investigation and it is appropriate to discipline employees who refuse to cooperate • Follow through on directive to answer questions and cooperate • Check your demeanor and body language

26. Interview Process • If witness/student is uncooperative • Try to determine reason for lack of cooperation • Students often concerned about how it will look to peers • Students can be uncomfortable and afraid of repercussions • Students want to “be cool” • Reassure student that they are safe and doing the right thing • Tell them what you know (or think you know) • Provide reassurance about how to handle actual or perceived retaliation – give names and numbers of who to contact if retaliation is suspected

27. Interview Process • Confidentiality • When interviewing, always ask the witnesses to treat the information discussed during the interview confidential • Explain why confidentiality is helpful • Explain that the information provided during the interview will be shared on a need to know basis and not necessarily held in strict confidence • State any policy prohibiting retaliation

28. Interview Process • Reach a Determination • Review all of the evidence, including witness interviews • If necessary, follow up with additional interviews or other activity needed to conduct an adequate investigation • Consider and weigh all the evidence • If evidence conflicts, assess credibility (is witness believable, did witness account make sense, is account based upon personal knowledge or gossip, hearsay or speculation, does witness have reasons to lie, does account contradict documentary evidence)

29. Documentation • Create a separate file for the investigation • The file should include all documents and other information gathered during the investigation • The allegation/complaint • Notes • Evidence of all contacts or attempts to contact witnesses • Documents and physical evidence • Pertinent policies, rules, laws, contracts • Final report • Documentation that parties received the final report

30. Documentation • Recording the Information • Determine at the outset how information will be documented • Options to document witness interviews include: • Handwritten notes • Typed summaries for signature by the witness • Allow witness to make changes before signing • Statements written by each witness • Tape record? • If handwritten notes are used, before concluding the interview review notes with witness to ensure all information was captured accurately • Handwritten notes should be legible

31. Documentation • If creating a first person statement, use the exact words used by the witness. • If providing a summary with quotes, assure that the information in quotes is in the witness’s exact words. • Make sure you know how to contact the witness in the future if needed – explain potential need for follow up • Remember to date each document and place page numbers on each page

32. Documentation • Written report is always necessary • Determine whether report willjustprovide the facts with conclusions or will recommendations be included as well • Report should include: • Background information • Specific allegation • How the investigation was carried out • Witnesses interviewed • Credibility determination (if necessary) • Documentary evidence reviewed • Substantiated, misconduct occurred, did not occur, inconclusive

33. Documentation • Think about your audience when writing your report • Edit and proof report from the perspective of someone with no knowledge of event • Better yet have someone with no knowledge read and see if it is clear (confidentiality) • Will the report be subject to a FOIA request? • Will the report be Exhibit A in litigation? • Decide how you are going to refer to your witnesses and then refer to them in the exact same way throughout the report ( Mr. Jones, or R. Jones, or Complainant – not victim and harasser)

34. Documentation • Mr. Jones, Mr. Rice and Mr. Wilson all complained that Mr. Smith constantly harassed them. Mr. Jones and Mr. Rice said he would follow them wherever they went and one time he even followed him home. They wanted the harassment to stop and if the school could not stop his behavior, he would go to the police.

35. Documentation • If tasked with making recommendations: • Remediation • Determine what, if any, corrective action or remedial measures are necessary • Always consider polices and practices • Discipline • Clearly identify the disciplinary document “This is a written reprimand” • Warn of future consequences • State document will be put in personnel file • Direct employee to ask if confused abut discipline or expected behavior

36. Special Situations – Civil Rights • Discrimination / Harassment Complaints • Law is pretty clear – must investigate and report • No such thing as informal complaint • Employees need to understand obligation to report • Employees need to know the complaint procedure • Employer needs to decide if complainant and alleged harasser should be separated (not necessarily administrative leave) • Document any refusal to give statement – try to understand why • Remedial measure should stop harassment, correct effect on complainant and prevent future harassment • Retaliation and disparate treatment

37. Special Situations – FERPA Issues • If school videotapes are used - need to decide if videotapes are law enforcement records or educational records. • How are videotapes created? • Who is custodian of videotape? • How are videotapes used? • FERPA narrowly defines a law enforcement record as a record that is (1) created by the law enforcement unit, (2) for a law enforcement purpose, and (3) maintained by the law enforcement unit. • Law enforcement record not subject to FERPA – can share

38. Special Situations - FERPA Issues • Records of School Resource Officer compiled for criminal case are not educational records but if used to investigate violation of school rules, become educational records • If educational records are involved, may need to obtain written consent of parents/guardians or student if 18 or older, to share records during investigation (including sharing with union representative, other parents, etc.)

39. Pitfalls • Hasty preparation - Hasty Interviews • Failure to interview all relevant witnesses • Failure to consider alternate explanations • Careless errors – particularly in reciting facts • Decisions or discipline not congruent with known facts • Discipline inconsistently applied • Inability to ask the necessary questions (uncomfortable with subject matter) • Errors or violations due to lack of investigator knowledge or skill set • Failure to address defenses • Lack of Due Process

40. Points to Remember • Know what you are trying to determine • Investigate promptly • Listen to both sides – remain impartial • Adjust language to developmental level of witness • Make sure questions are understood • Document everything • Prepare a final report • Consider the reader • Reach a conclusion • Stay organized

41. Questions? THANK YOU Nancy Mullett nmullett@kreisenderle.com 269.966.3000