Investigation Tips

1. Investigation Tips From the General Counsel’s Perspective

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. Litigation is always possible • Use email sparingly. • Email 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

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

18. 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

19. 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

20. 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