Finding the Facts - Disciplinary and Harassment Investigation

5. C ONCLUSION

At the completion of the “gathering the facts” phase of the investigation, the investigator should have:

 Gathered and reviewed all relevant documents;

 Gathered and reviewed all physical evidence; and

 Conducted interviews of the complainant, the alleged harasser, and all witnesses.

E. A DMINISTRATIVE S EARCHES

1. B ALANCING E MPLOYEE P RIVACY I NTERESTS Gathering evidence as part of an investigation may involve conducting an administrative search. Searches of public employee property, desks, lockers, and work areas may violate employees’ privacy rights as well as Fourth Amendment rights. Employees have a reasonable expectation of privacy in areas that they intend to maintain as private depending upon the “realities of the workplace.” At the same time, employers have a legitimate interest in maintaining a safe and efficient workplace. The following cases illustrate how courts have assessed and balanced an employee’s reasonable expectations of privacy against the employer’s interest in an efficient, safe workplace.

Ortega v. O’Connor, 112 : Seminal Supreme Court Case Finds Privacy Right The Court held that a public employee’s Fourth Amendment rights are violated when his office is searched without a warrant and personal materials are seized in response to vague and very old allegations of sexual misconduct. Dr. Magno Ortega held the position of Chief of Professional Education at Napa State Hospital from 1964 to late 1981. In 1981, he purchased a new computer to be used in his program by obtaining donations and contributing approximately half the cost of the computer himself. Based on concerns regarding the computer purchase, the hospital began an investigation into Ortega’s management practices. During the investigation, it was alleged by a staff psychiatrist that Dr. Ortega had engaged in sexual harassment of resident physicians. Subsequently, Ortega’s office was searched without a warrant. The documents searched and read included personal letters from friends and family, as well as sexually explicit letters from several women. Personal possessions as well as state property were boxed and removed. Based on the investigation, Ortega was fired. He filed a complaint in 1982 under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights to be free from unreasonable search and seizures. This lawsuit eventually reached the United States Supreme Court, becoming the seminal case on employee privacy rights in the workplace. The Supreme Court held that a search of an employee’s office by a supervisor is

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