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    January 2016

    Planning the Process: A Key Step for Investigations

    Allegations of misconduct, including harassment, sexual assault, academic dishonesty, or other policy violations, require a high-quality, thorough investigation. While each investigation is unique, considered preparation will lead to a sound process and outcome. Before beginning, take time to map out an investigative plan.

    • Identify the investigation’s scope and purpose. Review the complainant’s own words in the written complaint to determine the alleged code of conduct violations. If the complaint was made orally, review any notes made by the intake person. Prepare an initial timeline of events based on the complaint and identify any significant gaps.

    • Know the institution’s policy and which version is applicable to the allegations. Print a copy of the applicable version of the policy to use as a reference throughout the investigation. Institutions can face challenges and potential liability if the investigator does not understand and follow the appropriate policy.

    • Clarify the institution’s process requirements. Review the evidentiary standard (preponderance of the evidence or clear and convincing), disciplinary process steps and deadlines, and all policy terminology. In allegations of sexual misconduct, be sure you understand definitions of “consent,” “incapacitation,” and “complainant” or “respondent.” Be conscientious about using terms correctly and consistently throughout the investigation. Identify the policy’s definition of the investigator’s role: fact-finder, determining policy violations, or recommending sanctions. If the investigator is tasked with making a recommendation or determination, know whether he or she must also recommend a sanction. Failure to follow the policy can create confusion and weaken the investigation.

    • Outline investigative steps. For example, prepare an anticipated time frame for the investigation—a sexual assault investigation and any disciplinary process should be 60 days—a list of witnesses, and the general timing and order of witness interviews. Note any anticipated challenges, such as unavailable or uncooperative witnesses, including a reluctant complainant, and any reasons for delays.

    • Plan witness questions and interviews in advance. While each interview will be different, the prepared questions will remind the investigator to capture basic information and any specific or unusual details. Also choose a neutral, private place for conducting witness interviews. If interviews cannot be done in person, identify what technology will be used to facilitate them, such as Skype, FaceTime, or phone.

    • Consider how to memorialize witness interviews. The institution’s policy may prescribe how to keep interview notes or whether interviews should be recorded. Confirm whether the policy allows witnesses to review notes from or summaries of their interviews.

    • Identify other evidence that must be gathered and evaluated. Text messages, photos, emails, police reports, or other third-party information may be critical to the investigation. Create a list that can be expanded when additional materials are identified. Leave space to note when the evidence was obtained, from whom, and where it is stored.

    • Coordinate with law enforcement as needed. Know whether there is an ongoing criminal investigation and how it could affect your investigation. Do not delay your investigation unnecessarily, but be aware of potential conflicts and be prepared to resolve them with law enforcement.

    These actions will allow you to prepare for and complete an effective, comprehensive investigation.

    Resources

    United Educators' Checklist for Title IX Investigations

    Heather Salko, Senior Risk Management Counsel

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