Finding the Facts - Disciplinary and Harassment Investigation

report. 159 After receiving the report, the Board entered into an agreement with the superintendent in which it accepted the superintendent’s resignation in exchange for certain payments and a promise to keep the report confidential. 160 A local newspaper and the public suspected a “sweetheart deal” and demanded access to the report. 161 The Court of Appeal ordered release of the full report, finding that the public’s interest in disclosure outweighed the superintendent’s privacy interest in the report, especially because the superintendent was a high ranking official. 162 The Court also noted that the public had a substantial interest in knowing how the District responded to allegations of misconduct by a high ranking official. 163 But the Court did permit the names of the persons interviewed, including students, parents, staff members, and faculty members, to be redacted from the report. 164 In Marken v. Santa Monica-Malibu Unified School Dist. , 165 a Court of Appeal held that the District complied with the PRA by disclosing a redacted investigation report and written reprimand for sexual harassment. A teacher was issued a written reprimand following an investigation which found that the teacher violated the District’s sexual harassment policy. The court held that while the teacher certainly has a privacy interest in the investigation report and the reprimand, the public’s interest is greater. The court found that a classroom teacher occupies a position of trust and the public has an interest in knowing whether and how the District enforces its sexual harassment. Because an investigation report could be subject to public disclosure, an investigator should ensure that he/she only makes factual findings and does not reach conclusions regarding whether the accused violated any laws or policies (unless asked to do so). The investigation report also should be detailed with respect to how the investigator reached the relevant factual and credibility determinations.

T AKING C ORRECTIVE A CTION

Section 9

Appropriate corrective action takes place after, and relies upon, the findings of a timely, thorough and completed investigation. Thus, in one sense, “corrective action” goes beyond the scope of a workbook that addresses the investigation process. But, a district’s ability to defend its remedial steps (or decision that remediation is not warranted) will depend on the quality of its underlying investigation. Additionally, it is important to remember that harassment investigations are not just legal obligations, they are essential tools for identifying the appropriate discipline and remediation in a particular situation. Given this close nexus between the investigation process and the remedial process, we address briefly here the post-investigation “corrective action” step. For a more detailed discussion of disciplining and remediating harassment, please see our workbook Preventing Workplace Harassment, Discrimination and Retaliation.

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