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Conducting Investigations That Survive Legal Scrutiny

By Jason Parker, J.D., CAA on October 03, 2017 hst Print

Allegations of wrongdoing put school districts at risk. Whether students or employees are blamed for the wrongdoing, the consequences can have widespread effects. Proper administrative response shields the district from additional liability, and investigations are a key component of the district’s response to allegations of impropriety.

Serious allegations often result in legal actions. Naturally, the method used in gathering facts must be capable of surviving legal scrutiny. Effective investigations are vital in helping school districts mitigate risks.

Benefits of Investigations

Investigations are generally not viewed in a positive light; however, benefits can result from probes into district practices. These inquiries provide feedback into whether procedures are performed properly, and administrators can learn how policies affect various aspects of the organization.

Ultimately, the truth should result from any examination into circumstances surrounding an allegation. Uncovering facts allows issues to be addressed, apologies to be made and even names to be cleared. Consequently, effective collaboration among district stakeholders can result from proper investigations.

Investigations are hard work and employing a positive mindset provides the proper outlook to take on the challenge. Approaching every situation correctly acknowledges that each allegation matters. When disputes are dispassionately dismissed, they may escalate into more serious matters.

With a proper mindset established, the next step is to determine the facts and mitigate further liability. Having a system in place will help provide consistency in the investigative process. The acronym ACT, which stands for “Allegations, Conclude and Terminate,” can help establish reliability in a district’s investigations.

Investigate Allegations

Determine the Scope: Evaluating the extent of liability is key to projecting the impact of allegations. If the accusations are completely true, what rules, regulations or statutes have been broken? Determining the answer will make clear who should be involved in the investigation.

Police, district attorneys or even state agencies may need to be contacted. Sensitive personal information may only be shared among those performing the investigation. Knowing who should be involved at the outset regulates information sharing and protects privacy rights of those being investigated.

Determine the Investigators: Investigations should be steered by department heads, school resource officers, principals or even superintendents. Ideally, investigators should prioritize the search for the truth and retain no conflicts of interest with the circumstances involved. It is important to be aware of familial ties, close friendships or pre-existing animosity between all parties.

Write it Down: Each investigation should be conducted as though it will go before a judge. Legal proceedings require detailed documentation in order to prevail. A concise summary of the process also demonstrates due process. As a result, investigators must commit to a written log throughout the investigation.

Gather Evidence: Gathering evidence should only occur after the first two steps have been completed. Otherwise, conflicts of interest, which render findings unreliable, could result. Still, this step must be performed promptly.

Gaps in the investigation signify insensitivity and undermine the inference of validity. Unavoidable breaks due to school events and holidays may occur. However, the investigation should have a consistent chronological flow of work produced.

Lastly, in addition to promptness, courtesy goes a long way. Although emotions can run high for those who have been accused, investigators must remain professional at all times. Information becomes more accessible when everyone involved feels respected.

Conclude if Misconduct Occurred

Conclude Based on Weight of Evidence: Producing a formal conclusion is vital to all investigations. Too often, allegations dissipate without any sense of finality. Inevitably, negative actions re-occur and weightier allegations may be filed later. A final decision establishes the district opinion of what occurred and demonstrates that the investigation was completed. Without a conclusion, districts can be deemed liable for failing to act.

Investigators may conclude that misconduct occurred, did not occur or that the evidence does not favor either premise. Nevertheless, a formal written conclusion must be completed.

The conclusion should be based on the weight of the evidence, which means: “Did more evidence point to the fact that misconduct occurred, or that misconduct did not occur?” Typically, conclusions that are “reasonable” in light of the evidence will survive legal scrutiny.

Communicate Conclusion: Once a determination is made, it must be communicated to the appropriate parties. Failing to notify those involved may cause resentment and possible prolonged anxiety. Superiors, investigators and accusers should be informed of the determination in a manner that protects the privacy rights of those involved. Conclusions are also important where misconduct is not found, as they serve to clear the reputations of those accused. Producing a formal opinion will also guide the final steps of the investigative process.

Terminate Wrongdoing

Remediate: Districts must act promptly to correct misconduct uncovered during the investigation. This may involve admonishing, suspending or discharging those involved. Before punitive actions take place, it is important to establish that the misconduct contradicted clearly communicated procedures. Timely mitigation could save the district from exorbitant punitive damages.

Determine Cause: Identifying the systemic causes of wrongdoing can help prevent re-occurrence. Districts can recalibrate policies to adequately address all aspects of the issue. Effective training will help ensure that behavioral expectations are made clear. Even where wrongdoing is not explicitly found, administrators may still want to re-establish standards using programs aimed to educate on the exposed issue.

Follow Up: Despite the results of the investigation, some may be displeased with the outcome or may be anxious moving forward. It is important to demonstrate sensitivity toward involved parties and guard against backlash against whistleblowers. Negative consequences resulting from the findings can be avoided through consistent follow up with those involved.

With an established system in place to investigate allegations of wrongdoing, proceeding in an expedient manner, effectively communicating and acting upon the findings, and taking into considerations the emotions and feelings of all involved, your efforts should survive legal scrutiny.