Effective Investigations

1. Effective Investigations Curtis Leonard Sumner School District August 29, 2013

2. What is the cost of an ineffective investigation?

3. As awareness of school bullying increases, so do parents' expectations of school districts. With supervisory power over children all day, school districts obviously have a special responsibility to keep children safe from injuries, including harm that can come from other children. School districts are seeing a rise in lawsuits stemming from such injuries.

4. Recently, a Duval County, Fla., jury returned a $100,000 verdict for a minor who was violently attacked by a known school bully in S.B., Beverly Cox, v. Duval County School Board. • The offender, a 12-year-old female, was known for her violent tendencies. S.B. sustained a left tibial tubercle avulsion fracture requiring three surgeries on her left knee. The jury awarded her $50,000 for her past pain and suffering and $50,000 for her future pain and suffering.

5. In New Jersey, a student who was paralyzed as a result of an in-school fight obtained a $16,344,327.15 award against the Irvington Board of Education, in A.P., Pamela Patterson v. Irvington Board of Education • The attacker had been involved in fights previously and been expelled. Plaintiff claimed that the school negligently failed to protect A.P. from harm and provide safe supervision and care. Plaintiff also asserted that Irvington had a zero tolerance policy for violence, and the school should have ensured the offender was not allowed back into the building. District also failed to properly investigate previous issues.

6. A five-year-old girl who was forced to inappropriately touch two classmates and was later expelled obtained a $160,000 settlement with the school district in a Washington Federal Court in A.K. v. Shoreline School District #412. • District failed to appropriately supervise.

7. A Florida jury awarded the parents of a special needs child who was sexually assaulted on a school bus $1.7 Million against the Palm Beach County School Board in T.B. and S.W. v. The School Board of Palm Beach County, Florida. • The District failed to provide supervision. • Previous incidents were not investigated.

8. What is the Cost? • Many of the costs are non-monetary • Erosion of trust with the community • Perception of “protecting our own” or “circling the wagons” • Harm to the student • Perception that children are not safe • Disruption to the educational environment

9. COMPLAINT Reports Rumors

10. Constructive Notice Investigations should be conducted in cases where no one formally complains yet the District has learned of a claim of wrongdoing via an anonymous tip, citizen complaint, rumor, hearsay, or third-party employee complaining on behalf of an alleged victim. An employer can be charged with constructive notice of the alleged wrongdoing, even if no one complains of the conduct, when the conduct is so pervasive that the employer should have known of it. An internal human resources employee (or another trained employee) can investigate internally the large majority of complaints that an employer receives, and can usually do so within an hour or two by interviewing two or three eyewitnesses. More complex complaints involving multiple theories of liability, whistleblower statutes, and multiple parties will take longer, and may require hiring a qualified outside investigator. Time and cost should not be offered as reasons for a failure to investigate. Failing to investigate for either of those reasons would be penny-wise and pound-foolish. When the management employee who decided not to launch an investigation is asked pointedly by the plaintiff’s attorney why he or she did not conduct an investigation and offers expense or lack of time as excuses, the judge or jury may not be sympathetic.

11. Off Campus Conduct • Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school’s education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. • For example, if a student alleges that he or she was sexually assaulted by another student off school grounds, and that upon returning to school he or she was taunted and harassed by other students who are the alleged perpetrator’s friends, the school should take the earlier sexual assault into account in determining whether there is a sexually hostile environment. The school also should take steps to protect a student who was assaulted off campus from further sexual harassment or retaliation from the perpetrator and his or her associates.

12. Why do Investigations Matter?

13. Why Investigations Matter Affirmative Defense Appellate court finds that well-documented investigations and disciplined note-taking assist employers in assessing possible disciplinary action and demonstrating nondiscriminatory reasons for disparate disciplinary treatment. The court noted that the investigator’s notes used to create her summary report were accurate and that her investigation was thorough and carefully orchestrated. The decision demonstrates the value of well a defined investigative process and the importance of properly trained investigators. MARTINEZ v. GRAINGER Arturo E. MARTINEZ, an individual residing in Minnesota, also known as Arthuro E. Martinez, Plaintiff–Appellant, v. W.W. GRAINGER, Inc., an Illinois corporation, Defendant–Appellee. No. 11–1422. -----December 22, 2011

14. Investigations and Just Cause A fair and objective investigation was held to determine facts, and the member was given an opportunity to be heard, represented, present evidence or challenge such facts.

15. Investigations and Just Cause Investigate the incident: Immediately after an incident happens, or immediately after learning of an incident, the supervisor must allow the staff member involved to tell his/her side of the story, as well as others who may have witnessed what occurred. Conduct a fair, objective, and complete investigation. It is important to consider all pertinent information and to reconcile any conflicting statements. Confirm whether the investigation revealed substantial evidence or proof that the staff member has failed to meet performance standards or has engaged in the alleged inappropriate conduct.

16. Why Investigations Matter • Help you figure out what happened – determine truth • Mitigate employee/student problems • Consistent Accountability • Enforce policy and procedures • Encourage reporting • Avoid or counter bad publicity • Develop trust in the community • Show you’ve done something • Basis for defending against future litigation • Preserve the record

19. A thorough investigation • The lawsuit targeted the organization, Sandusky and Penn State University, pointing to what it describes as an "institutional concealment" and "institutional failure" that allowed the former coach to "thrive and prosper”

20. Investigation Process

21. QUESTION #1 - What is alleged to have been violated? • Federal Law, State Statute, Board Policy, Practices • QUESTION #2 - Who shall investigate? Building, HR, Outside? • Keep in mind that anyone who conducts an investigation becomes a potential witness regarding the investigation and its adequacy. • Am I Experienced? Credible? Objective? • Will investigator establish immediate rapport

22. Determine if Board Policy Applies • Has the complaint alleged a violation of • #5011, Discrimination/sexual harassment • #3207, Harassment, Intimidation, Bullying • Is the complaint based on membership in a protected class? • Provide a copy of the policy

23. QUESTION #3 - Is it necessary to contact: • Human Resources • Parents of students • Union • Law Enforcement/CPS • Insurance Company • Outside Attorney

24. QUESTION #4 – Does an employee need to be placed on leave? • Computers, keys, access to building

25. QUESTION #5 – Have we secured any evidence? • Computer evidence, surveillance • Witness statements

26. Timely Investigation • QUESTION #6 – Are we complying with required timelines. • The superintendent or his/her designee shall respond in writing to the complaining party within (30) calendar days following receipt of the complaint by the school district. Board Policy 5011P

27. Timely Investigation • Within two (2) school days after receiving the Incident Reporting Form, the school designee will notify the families of the students involved that a complaint was received and direct families to the District’s policy and procedure on harassment, intimidation, and bullying. • The investigation will be completed as soon as practicable but generally no later than five (5) school days from the initial complaint or report. Board Policy 3207P.

28. Timely Investigation • No later than two (2) school days after the investigation has been completed and submitted to the compliance officer, the principal or designee shall respond in writing or in person to the parent/guardian of the complainant and the alleged aggressor stating: • The results of the investigation • Whether the allegations were found to be factual • Whether there was a violation of policy • The process to file an appeal Board Policy 3207P

29. Paid Administrative Leave We pay you because we have to

31. Purpose of Administrative Leave • Protects integrity of investigation • Preserve evidence, witness statements • Facilitates investigation • Protects children • Limits liability • Protects employee • Provides a response to interested parties • Media, community members

32. Decision to Place on Leave • Is an investigation necessary? • Disputed information, multiple witnesses, determine a pattern of misconduct • Does the alleged misconduct involve the safety and or supervision of children? • CPS and/or law enforcement if necessary • Any indication that employee cannot carry out the functions of their job? • Shows impaired judgment

33. Discussion Examples • Allegation that teacher is abusing sick leave, contrary to the provisions of the collective bargaining agreement. Place on paid administrative leave?

34. Discussion Examples • One-on-one para-educator assisting a medically fragile youth takes a personal phone call while transporting the student to a portable. After ending the conversation, she leaves the student on the sidewalk to quickly get something out of her car. Principal finds the student outside and alone.

35. Discussion Examples • Student alleges that a teacher touched his arm while escorting him to the office. Teacher placed his hand on the student’s shoulder. Parent wants the teacher fired. • Now assume that while escorting the student, teacher grabbed and squeezed the student’s arm and quickly shook him to get his attention.

36. Discussion Examples • Student reports that he is having a physical relationship with a high school drama teacher • You know the teacher personally and KNOW that this cannot be true. Now what? • Now, assume allegation comes from a student who has made a false allegation about 4 other staff members this year. Now what? • The student recants his statement. Now what?

37. Sample Leave Letter • Statement of action • You are hereby placed on paid administrative leave until further notice. The reason for this action is that certain matters involving your conduct related to _____ must be looked into. • Notice of investigation • The District will conduct an investigation into your conduct.

38. Sample Leave • Directives • Confidentiality • Direction to refrain from discussing this matter with anyone (exceptions are union rep, attorney, clergy, doctor, or law enforcement) • No Contact • With any involved/interested parties • No presence at school or school related events • Instruction to return keys • Availability • Made available for District investigation

39. Paid Administrative Leave • Administrative leave (i.e. leave with pay pending investigation) Do not treat administrative leave lightly—it is generally understood by employees and the public as a precursor to termination. If done without justification, it can unnecessarily destroy an employee’s credibility with other staff and the public following the investigation, even if no wrongdoing was ultimately found.

40. Administrative leave is not appropriate simply because an investigation is occurring. If you’re thinking of putting the accused employee on leave weigh the above concerns carefully against the following factors: (1) The scope and severity of the offense, (2) The likely penalty imposed if the allegations are true (3) The reliability of the initial report (4) The danger of immediate reoffense, (5) The danger of interference with the investigation. Be sure you are basing your decision to put someone on leave due to direct evidence (i.e. don’t rely on hearsay—talk to the direct witnesses first). Far too often the initial report you receive of misconduct bears little resemblance to what the witnesses will actually attest to.

41. Witness List • The investigator should create a prospective witness list.

42. Interviews • Age of all parties • Parental notification of witnesses • Scheduling of interviews in relation to school day • Who will assist with note taking (sign and date your notes) • Order of interviews • Location of interviews • Building Level vs. Central Administration

43. The Investigative Interview

44. Develop the Facts • In an investigation regarding specific events, inquire about all events that occurred during the relevant time frame, in chronological blocks of time. • Ask who, what, where, when, how?

45. Question Hierarchy Open Ended Forced Choice Retrieval Clues Yes/No

46. Types of Questions Open Ended. • Tell me about yesterday? Forced Choice. • What did you do yesterday?

47. Leading question Non-leading question Did you go to the records room Where did you go at lunchtime? at lunch time? Was it a blue file? What was the color of the file? It was Jones’, wasn't it? Whose file was it? Develop a Funnel

48. Summarize and Review • Restate periodically what the witness has said • Determine if you have heard the witness correctly • Signed statements are useful • Witness reviews for accuracy • Both sign, provide copy to witness

49. InterviewGuidelines for an Investigator • Initial meeting/interview with Complainant • Learn as many details about complaint as possible • What should the complainant expect • What is the timeline for the action • Who is the contact for any questions/concerns • Inform him/her that district does not permit any kind of retaliation • Knowingly false complaint • Make no promises of confidentiality beyond extent allowed by law or appropriate to circumstances

50. Interview with Complainant • Does the complainant feel safe at school? • Has the complainant previously reported this conduct? • Verify dates when the conduct started and when it last occurred • Do they have any supporting documentation?