An Administrator's Guide to California Private School Law
Chapter 12 - Investigations
determinations when needed, such as when there is substantive conflict in the accounts of relevant events given by various witnesses and will support conclusions with specific factual evidence. The investigator must understand the difference between making factual findings and making conclusions of law. 5. S TRENGTH A S A W ITNESS Investigative findings sustaining allegations of misconduct may lead to the suspension or expulsion of a student, the termination of an employee, or other forms of employee or student discipline or may be relevant to subsequent litigation. Student suspensions and expulsions, employee terminations, or other disciplinary actions are sometimes challenged. If litigation is filed, the investigator could, and likely would, be required to testify about the investigation, evidence obtained and findings reached, at deposition, at trial, or both. In selecting an investigator it is important to consider the individual’s ability to clearly and credibly communicate as a witness in court proceedings. B. W HEN T O U SE A N O UTSIDE I NVESTIGATOR In certain circumstances, the school might consider retaining an individual from outside the school to conduct the investigation. For example, the school might want an outside investigator to investigate a high level school employee because it might be difficult to find an individual within the school who can perform an unbiased and impartial investigation. Schools should also consider hiring an outside investigator if the investigation will be complex and time consuming or if the school does not have an employee with the qualifications and knowledge to conduct a particular investigation. It also might be more efficient to retain an outside investigator who can devote the time necessary to conduct a prompt and thorough investigation. If the investigator is not an attorney, he or she should be licensed to conduct an investigation. 1941 C. I NVESTIGATOR D ETERMINES T HE F ACTS The school should direct the investigator to gather facts, make credibility determinations as needed, prepare factual findings, and issue a report (which will likely be discoverable). The school should clearly communicate to the investigator the scope of the investigation. The school’s attorney may then conduct a legal analysis and develop conclusions about the conduct, any potential liability, and similar legal issues. This legal analysis would likely be privileged and not subject to disclosure unless the school chooses to disclose it. The school along with the assistance of its attorney may also determine the appropriate corrective action to be taken. D. U SING A N A TTORNEY T O C ONDUCT A N I NVESTIGATION Some circumstances warrant having an attorney conduct the investigation. Attorneys who regularly conduct investigations or are experienced litigators are experienced in conducting interviews and attorneys who conduct workplace investigations should have particular knowledge of employment law. Moreover, when an attorney is the investigator, the attorney- client privilege and attorney work-product doctrine may prevent disclosure of the attorney/investigator’s notes, reports, and other information gathered during the investigation.
An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 438
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