Finding the Facts - Disciplinary and Harassment Investigation

5. R EPORT -W RITING A BILITY The investigator must have the ability to compile and analyze the data from the investigation in a concise and organized manner. A good report will include any needed credibility assessments and will support conclusions with specific factual evidence. The investigator must understand the difference between making factual findings and inappropriate conclusions of law. B. W HEN TO U SE AN O UTSIDE I NVESTIGATOR In certain circumstances, an district may want to consider using someone from outside the district to conduct the investigation. An outside investigator should be considered when the alleged harasser is a high level employee or official in the district. When the accused harasser is someone in such a position, it may be difficult to find someone within the district who could perform an unbiased and impartial investigation. An outside investigator should also be considered if the investigation is complex. Investigations can be very time consuming. It may be more efficient to have the investigation conducted by someone outside the district who can devote the time necessary to conduct a prompt and thorough investigation. There may also be multiple other reasons for considering an outside investigator.

C. I NVESTIGATOR D ETERMINES THE F ACTS

The district should direct the investigator to gather facts, make any needed credibility determinations, prepare factual findings and issue a report (which will likely be discoverable). The district attorney (not an attorney investigator) can then conduct a legal analysis and develop conclusions about the conduct, potential liability and similar legal issues. This legal report would probably be privileged and not subject to disclosure unless the district chose to disclose it.

The district should clearly communicate to the investigator the scope of the investigation.

D. U SING AN A TTORNEY TO C ONDUCT AN I NVESTIGATION Some circumstances may warrant having an attorney conduct the investigation. 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. Therefore, when an investigation involves highly sensitive allegations, the district may consider having an attorney conduct the investigation. However, it still may not be possible to shield the investigative report even when conducted by an attorney acting. Eventually, it may be necessary to disclose information gathered during the investigation to support discipline or to establish that a fair and thorough investigation was conducted. In fact, if DFEH or EEOC charges are filed or litigation ensues as a result of the investigation, the investigator may be compelled to disclose the details of the investigative process, his/her notes, the report(s), and any other work product created as part of the investigation.

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 22