Finding the Facts - Disciplinary and Harassment Investigation

respond to incriminating questions. (Gov. Code, § 3253(e)(1).) LCW recommends that districts should consult with legal counsel on this particular issue before compelling a firefighter to respond to potentially incriminating questions during an investigatory interview.

D. H AVE A G OOD G ENERAL K NOWLEDGE OF D ISTRICT P OLICY R EGARDING THE C ONDUCT A LLEGED Before an investigator can properly investigate the facts, he/she must be aware of the type of behavior which is prohibited by the district’s policy. For example, if the investigator is investigating a possible abuse of sick leave, he or she will have to know how abuse of leave is defined in district policy in order to gather relevant facts. Similarly, there is nothing that prevents an district from prohibiting conduct that may not rise to the level of illegal harassment and many districts will have policies against romantic relationships between employees, especially between superior and subordinate. Districts may have policies regarding the use of their computers for non-work related email out of concern for security regardless of whether the email in question is harassing or not. An investigator may fail to include this information in his or her report if he/she does not understand the relevant sections of district policy. The investigator, therefore, should review the district’s policy before he/she begins investigating the facts. A summary of the law prohibiting harassment and what elements need to be established to prove unlawful harassment are discussed below in Section 6, Evaluating the Facts. This is for general guidance and understanding only. As discussed below, investigators should not make determinations as to whether the law has been violated. Also an district’s policy may be stricter than the law and prohibit conduct that would not rise to the level of a violation of federal and/or state law. Accordingly, workplace misconduct that violates an district’s policy may not necessarily violate the laws prohibiting harassment. For investigations involving allegations of an academic employee’s misconduct, in particular, off-duty conduct, the investigator should be aware of the factors commonly utilized to evaluate the nexus between an employee’s conduct and his or her performance. These factors are sometimes referred to as the “ Morrison ” factors. In Morrison v. State Board of Education , 81 the court found that there was insufficient evidence to support the revocation of a teacher’s certification for immoral conduct where the teacher had engaged in a brief homosexual relationship in his own home with another adult during off-duty hours and no criminal activity was charged. In reaching this conclusion, the court considered the following factors:

 The likelihood that the conduct adversely affected students or fellow teachers;

 The degree of such adversity anticipated;

 The proximity or remoteness in time of conduct;

 The type of teaching certificate held by the party involved;

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