PREVENTIVE LAW WORKSHOP

Investigating Employee Misconduct

Mary Elizabeth Kurz, Vice Chancellor and General CounselDianne Sortini, Director, Employee Relations &Training

N.C. State University

14 November 2001

Importance of Developing Investigative Skills

Defend supervisory judgments Comply with contractual obligations/policy Comply with legal requirements Avoid potential legal liability Treat employees fairly

Potential Legal Claims

Negligence Invasion of Privacy Intentional Infliction of Emotional Distress Defamation Wrongful Discharge Violation of Civil Rights Laws Violation of Constitution Rights Breach of Contract

When Faced With An AllegationWhat Questions First Arise in Your Mind? What responsibility do I have? What type of liability am I faced with if I

act or don’t act? How do I handle this correctly? How do I investigate this matter? Who can I go to for assistance?

Objectives of Today’s Workshop

Acquaint you with the basics of good investigation techniques

Provide basic information on who to contact for assistance

Is an Internal Investigation Necessary?

Is an investigation necessary?

Anonymous complaints He said/She said Observed behavior/No complaining party

Who Investigates?

Determine the nature of an issue before initiating an informal investigation.

Determine what the university’s objective is with respect to resolving the issue.

Decide who should be a part of the investigative team.

Investigative Plan

Determine what policies, regulations, rules, procedures, or practices apply to the matter.

Obtain all relevant documents. Determine who should be interviewed and

in what order.

Investigative Plan (cont’d)

Determine what questions you will ask. Anticipate questions you may be asked. Develop introductory and closing statement

for your interviews.

Conducting an Effective Interview

Initial meeting with complaining party Perception of your fairness and objectivity Gathering the evidence Who,What, When, Where, Why, How Chronological Account Names of persons to interview Copies of relevant documents Concluding the interview

Closing Statement

What are next steps Non-retaliation Confidentiality Witness statement Additional information (documents, witnesses,

other information remembered after interview) Suggestions for resolution/Univ. decision

Introductory Statement

Nature of Investigation/University’s responsibility to investigate

Neutrality Confidentiality Non-retaliation, importance of truthful

responses Request for lawyer/other person to be present

Meeting with the Accused Party

Explain the issue Get a detailed account of the events

(chronological) Gathering the evidence Denial of accusations/or won’t participate Concluding the interview Note taking

Interviewing Witnesses

Introductory statement(what you are investigating, etc.

Neutrality/ no conclusions reached Witness co-operation (truthful information) Non-retaliation, confidentiality Questioning the witness Closing the interview

Before Closing the Interview

Review the witnesses answers to confirm accuracy.

Invite the witness to provide any additional information if it comes to mind.

Relate the seriousness of the investigation. Remind the witness of the confidentiality of

the investigation. Your follow-up memo.

Reaching a Decision

Examine objective facts in chronological order

Timeliness in raising the issue Pattern and Practice Motivation Truthfulness

Assessing Credibility

Demeanor Logic/consistency of story Conflicting statements Corroborating evidence Circumstantial evidence

Documentation of Investigation

Create separate investigative file. Make log of investigator’s actions, calls by date. Keep contemporaneous and final interview notes for

each witness. (succinct and objective facts; not feelings, beliefs or assumptions)

Keep all communications to and from witnesses, including complainant(s).

Keep all draft and final witness statements. Keep all relevant business records.

Writing the Investigative Report

Investigative background University policies, practices, etc. at issue Key factual findings on each issue Analysis of key factual findings Conclusion

Hypothetical Case

Questions