At the 2017 PARMA Annual Conference, a panel discussed current and emerging issues involving risk management for public entities and joint powers authorities in relation to the requirements and conduct of investigations, including investigations of reported incidents of discrimination, harassment, or safety violations. Essentially this session was about the fundamentals of investigations in these matters. The panel was:
- Lejf Knutson – Partner – McCormick, Barstow, Sheppard, Wayte & Carruth
- Dennis Timoney – Chief Risk Officer – Special District Risk Management Authority
- James Wagoner – Partner – McCormick, Barstow, Sheppard, Wayte & Carruth
- Catherine Jones – Asst Professor, Occupational Safety and Risk Management – Bakersfield College
Types of claims that may require further investigation to validate:
- Report of education discrimination or harassment.
- Reports of workplace discrimination or harassment.
- Workplace productivity issues.
- Workplace loss issues.
Goals of investigations:
- Determine merits of the accusation.
- Educate on appropriate workplace/campus conduct.
- Forestall administrative complaints and/or lawsuits.
- Prepare for anticipated litigation.
Identifying triggering events:
- Rumors of improper conduct/employee complaints.
- Employee accidents or injuries.
- Workplace grievances, education related discrimination, harassment and/or assaults.
- Administrative agency claims and orders.
- Notice of potential claims/lawsuits.
Selecting an investigator:
Inside investigators have familiarity with the employer/department standards and can demonstrate the employers ongoing commitment to investigating and resolving workplace issues. Past relationships with employees may facilitate the investigation. Inside investigations also cost less.
Outside investigators are neutral and independent. Using them can show the seriousness of the investigation and it may be subject to litigation privilege under certain circumstances. If the person doing the investigation works for the person being investigated then you are probably best hiring an outside investigator to maintain impartiality and avoid any undue pressure on the investigation.
Ultimately you want to make sure the investigation appears impartial to any reasonable person. If there are factors that would bring into question whether the investigator was impartial (personal or business relationships) then hire an outside investigator.
Developing and documenting evidence:
- Interviews and other direct evidence including discussion with the person making the complaints and those accused.
- Circumstantial evidence. Could show motivation or intent.
- Historical evidence. All data records. Records regarding similar situations.
- Concluding the investigation. Consider advising all parties of findings in general terms. Suggest a resolution and follow through.
- Issues with subsequent use of evidence developed during investigation. All relevant documents should be retained to prevent a spoliation claim.
- Initiation of attorney/client relationship should be well documented to maintain privilege. This is something that is often litigated on a document by document basis. Your documentation is key. Bring in the attorney earlier rather than later so you can invoke the privilege on as much of the investigation as possible.
Ensuring compliance with applicable privacy laws:
- Access issues with personnel files.
- Workplace and campus searches.
- Drug testing.
- Employee/student use of electronic systems.