2007 CUPA-HR presentation -- Internal Civil Rights Investigators.

1. 1
““Hatin’, Harassin’, and Houndin’ OurHatin’, Harassin’, and Houndin’ Our
Internal Investigators”Internal Investigators”
CUPA-HR 2007CUPA-HR 2007
NATIONAL CONFERENCENATIONAL CONFERENCE
Baltimore, MarylandBaltimore, Maryland
Glenn Powell,Glenn Powell,
Executive Director, HRExecutive Director, HR
North Harris MontgomeryNorth Harris Montgomery
Community College DistrictCommunity College District

2. 2
It’s only a dream. It’s only…It’s only a dream. It’s only…
 Internal civil rights investigators (CRA’s) have total support ofInternal civil rights investigators (CRA’s) have total support of
Administration & campusesAdministration & campuses
 Full slate of internal volunteers who are aching to be Civil RightsFull slate of internal volunteers who are aching to be Civil Rights
AdministratorsAdministrators
 Release time is given in terms of “as much time as it takes” to do aRelease time is given in terms of “as much time as it takes” to do a
comprehensive investigation and follow-up”comprehensive investigation and follow-up”
 The CRA submits the investigative report in a timely manner withThe CRA submits the investigative report in a timely manner with
well drawn out conclusions and recommendationswell drawn out conclusions and recommendations
 Internal investigators are given recognition and rewards for extraInternal investigators are given recognition and rewards for extra
dutiesduties

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It’s only a dream. It’s only…It’s only a dream. It’s only…
((the sequel)the sequel)
 Complainants only submit civil complaints after working throughComplainants only submit civil complaints after working through
issues with the Accused in a mutually collaborative mannerissues with the Accused in a mutually collaborative manner
 Complaints are submitted with clearly written details of the incidentComplaints are submitted with clearly written details of the incident
and identification of the policy violationsand identification of the policy violations
 Witnesses are identified and/or come forward to be interviewed andWitnesses are identified and/or come forward to be interviewed and
make adequate time in their schedulesmake adequate time in their schedules
 The Accused waits patiently to be interviewed, answers allThe Accused waits patiently to be interviewed, answers all
questions completely, and is appreciative of the CRA’s role in thequestions completely, and is appreciative of the CRA’s role in the
processprocess
 All parties maintain confidentiality and act proactively to minimizeAll parties maintain confidentiality and act proactively to minimize
rumors about the complaintrumors about the complaint

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Lessons LearnedLessons Learned
I.I. Establishing an Internal Civil RightsEstablishing an Internal Civil Rights
Administrator Function (orAdministrator Function (or do we even havedo we even have
employees who will volunteer to do beemployees who will volunteer to do be
abusedabused))
 Accountability at the highest levelAccountability at the highest level
 Level of the Internal InvestigatorsLevel of the Internal Investigators
 Function/ Department of InvestigatorsFunction/ Department of Investigators
 Release TimeRelease Time
 RecognitionRecognition

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Lessons LearnedLessons Learned
II.II. The 3 Faces of the Civil Rights InvestigationThe 3 Faces of the Civil Rights Investigation
(or(or let’s lock the complainant, the accused,let’s lock the complainant, the accused,
and the Civil Rights Administrator in a roomand the Civil Rights Administrator in a room
and see what happens!)and see what happens!)
 To investigate / Not to investigateTo investigate / Not to investigate
 Should you notify the policeShould you notify the police

Rights of the AccusedRights of the Accused
 Union / Legal representationUnion / Legal representation
 Reluctant witnessesReluctant witnesses

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Witness ConcernsWitness Concerns
Retaliation:Retaliation: Show policy; personalShow policy; personal
guaranteeguarantee
Ostracizing:Ostracizing: Whole team interviewed;Whole team interviewed;
confidentiality; off-site locationconfidentiality; off-site location
Leaks:Leaks: Statement; “How manyStatement; “How many
investigations in past year?”investigations in past year?”

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Witness ConcernsWitness Concerns
Futility:Futility: Complaints taken seriously;Complaints taken seriously;
handled quietly. Example.handled quietly. Example.
Still Refuses:Still Refuses: “You spend more time here than“You spend more time here than
at home. Please help us makeat home. Please help us make
this a better place. We needthis a better place. We need
you.”you.”

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Lessons LearnedLessons Learned
iii.iii. Preventing Retaliation (orPreventing Retaliation (or offering the “witnessoffering the “witness
protection programprotection program”” as an option!as an option!))
 Discussions with the AccusedDiscussions with the Accused
 Defined retaliation properlyDefined retaliation properly
iv.iv. Keeping Your Internal Investigations Internal (orKeeping Your Internal Investigations Internal (or howhow
would that email/ note look blown up to a 10-footwould that email/ note look blown up to a 10-foot
exhibit for the jury!exhibit for the jury!))
 Be like Dragnet, Not ShakespeareBe like Dragnet, Not Shakespeare
 To tape / Not to tapeTo tape / Not to tape

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What to DocumentWhat to Document
 Answers to questionsAnswers to questions
 Tone of voiceTone of voice
 DemeanorDemeanor
 Pauses or hesitationsPauses or hesitations
 SilenceSilence
 Defensiveness, hostility, anger, tearsDefensiveness, hostility, anger, tears
 Physical reactionsPhysical reactions
 LISTEN WITHOUT INTERRUPTING!LISTEN WITHOUT INTERRUPTING!

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Your TabletYour Tablet
11stst
page: nothingpage: nothing
22ndnd
page: timelinepage: timeline
33rdrd
page: interviews: time began and ended, page #page: interviews: time began and ended, page #
-Write questions asked AND answers given-Write questions asked AND answers given
-Use direct quotes-Use direct quotes
-Include physical reactions-Include physical reactions
-Exclude:-Exclude:
 adverbsadverbs
 adjectivesadjectives

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Lessons LearnedLessons Learned
v.v. Reducing Complaints Against InvestigatorsReducing Complaints Against Investigators
 Quarterly training for investigatorsQuarterly training for investigators
 Clearly defined procedures for intake, investigations,Clearly defined procedures for intake, investigations,
closure, and follow-upclosure, and follow-up
 Regular communications between investigators andRegular communications between investigators and
district officedistrict office
 Timely closure and follow-upTimely closure and follow-up
 Double-teamed investigationsDouble-teamed investigations
 Watch out for inv. report recommendationsWatch out for inv. report recommendations

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Preparing Investigation ReportPreparing Investigation Report
 Summarize sequence of events in theSummarize sequence of events in the
investigationinvestigation
 Cite relevant Board Policies, procedures, etcCite relevant Board Policies, procedures, etc
 List key facts on which your determination wasList key facts on which your determination was
basedbased
 Analysis of key factual findingsAnalysis of key factual findings
 Final conclusions and/or recommendationsFinal conclusions and/or recommendations

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Analyzing the EvidenceAnalyzing the Evidence
 Key: Reach a REASONABLE conclusion after aKey: Reach a REASONABLE conclusion after a
GOOD FAITH investigationGOOD FAITH investigation
 Consider ALL evidenceConsider ALL evidence
 Cultural differencesCultural differences
 Witnesses’ motivationWitnesses’ motivation
 Re-read notes, files, emails, documentsRe-read notes, files, emails, documents
 Consider chronologyConsider chronology
 Be prepared to explain your ultimate conclusionBe prepared to explain your ultimate conclusion

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Burden of ProofBurden of Proof
 Not a criminal or civil courtNot a criminal or civil court
case.case.
 Legal burdens of proof doLegal burdens of proof do
not apply and are notnot apply and are not
relevant.relevant.
 Avoid “beyond reasonableAvoid “beyond reasonable
doubt”doubt”
 Many cases have no clearMany cases have no clear answer; becomeanswer; become
he said/she saidhe said/she said

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Avoid Legal ConclusionsAvoid Legal Conclusions
““The evidence revealsThe evidence reveals
beyond a reasonablebeyond a reasonable
doubt that the accuseddoubt that the accused
repeatedly sexuallyrepeatedly sexually
harassed theharassed the
complainant.”complainant.”

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BETTER:BETTER:
““Based on the witnessesBased on the witnesses
interviewed and theinterviewed and the
information reviewed, theinformation reviewed, the
complaint appears to becomplaint appears to be
substantiated.”substantiated.”

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The ReportThe Report
 Critical document! Write it as if aCritical document! Write it as if a
jury is reading over yourjury is reading over your
shoulder.shoulder.
 ““Confidential”Confidential”
 No adjectives or adverbs.No adjectives or adverbs.
 Reach aReach a conclusionconclusion but rarelybut rarely
offeroffer recommendationsrecommendations

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Develop and consistently use a reportDevelop and consistently use a report
form with headings such as:form with headings such as:
I.I. ComplaintComplaint
II.II. Information ReviewedInformation Reviewed
III.III. Facts DeterminedFacts Determined
IV.IV. Analysis of InformationAnalysis of Information
V.V. Conclusion/Substantiation ofConclusion/Substantiation of
ComplaintComplaint

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Results NotificationResults Notification
 Explain issues raised regarding theExplain issues raised regarding the
accusedaccused
 Describe the steps that were takenDescribe the steps that were taken
 Explain the conclusions drawn fromExplain the conclusions drawn from
investigationinvestigation
 Encourage complainant to comeEncourage complainant to come
forward or submit information in theforward or submit information in the
futurefuture

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AVOIDING LAWSUITSAVOIDING LAWSUITS
 Treat all parties with respectTreat all parties with respect
 Do not discuss the investigation with othersDo not discuss the investigation with others
 Avoid phrases such as, “That’s confidential,” “IfAvoid phrases such as, “That’s confidential,” “If
you only knew . . .,” etc.you only knew . . .,” etc.
 Take time toTake time to listenlisten to parties involvedto parties involved
 Understand they are FRUSTRATEDUnderstand they are FRUSTRATED
 Slowly explain the process; Document this stepSlowly explain the process; Document this step
 Tell parties they can check in with you for a statusTell parties they can check in with you for a status
update periodicallyupdate periodically
 Know when to bring in a fresh pair of eyesKnow when to bring in a fresh pair of eyes

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RETALIATIONRETALIATION
 June 2006 (US Supreme Court:June 2006 (US Supreme Court:
Burlington Northern v. WhiteBurlington Northern v. White))
 Much broader interpretation ofMuch broader interpretation of
“retaliation”“retaliation”
 Can be based on acts outside of workCan be based on acts outside of work
 Includes acts that are not “ultimate”Includes acts that are not “ultimate”
employment actionsemployment actions

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Closing the FileClosing the File

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The Follow-UpThe Follow-Up
 30-45 days later: complainant (if30-45 days later: complainant (if
still employed)still employed)
 Document this stepDocument this step
 Review policy for loopholes orReview policy for loopholes or
unhelpful languageunhelpful language
 Consider training or redistributingConsider training or redistributing
policypolicy