Season 2 Episode 3: Hanky Panky in the Classroom, Part Three

In our final episode on employee investigations, Attorney Sara Markouc discusses employee rights, including Weingarten and Garrity rights. Attorney Markouc also offers insight in conducting the critical employee interview, tips to remember in speaking with witnesses, and ideas for drafting the investigatory report in a thorough and specific way.

View Podcast Transcript

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Miriam: Hanky Panky in the Classroom. Welcome back to our award-winning podcast, Class Act: Updates in Education Law, I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter Haverfield. We practice school law. Every few weeks we get together and talk about the most recent legal developments that affect school boards and administrators. Lately, we have been talking about investigations of teachers and other employees who misbehave.

Lisa: Welcome to our third episode on those employee investigations. Once again, we’re fortunate to have Sara Markouc joining us who frequently advises school boards on employee and school discipline issues. Welcome back, Sara.

Sara: Thanks so much for having me.

Lisa: Last time we started talking about the investigation and process in detail. Today we’ll talk about the actual interview itself and how to wrap up the investigation. Sara, can you start us with some of the key rights that you need to keep in mind when you start to interview the accused in these investigations?

Sara: Absolutely. There are two sets of rights you really want to think about. The first right is the employee’s Weingarten right. For employees who are part of a union, this ensures that they have an opportunity to have a representative with them at different stages of the investigatory process. A lot of districts will do an initial interview as part of the investigation. You need to make sure that you offer the employee the right to have union representation there with them. Likewise, with any follow-up interview prior to the potential issuance of discipline, you want to make sure that that employee at least has the right or is aware that they have the capability to have a union representative with them. Sometimes they will say they don’t want to have someone there, that’s fine. You want to document that, but you’ll always want to make sure that you offer that representation, be available to them during the process.

Miriam: Don’t necessarily worry about the legal jargon we’re throwing out with the Weingarten rights, but the content of making sure you offer that option for a representative.

Lisa: Is that then in writing, the offering or is that something that you just tell the person?

Sara: Typically, it’s something you can tell the person, but we also like to have it in writing, whether it’s an email, setting the time for the interview and the date and reminding the employee they have a right to have union representation or a letter. Most of the time in these situations certainly when you get to the pre-disciplinary conference, it’s coming in the form of a letter and you want to make sure that it’s referenced. A lot of letters will just say, “In accord with the collective bargaining agreement you have the right to have union representation present at this meeting,” or something along those lines.

The other rights which don’t come into play as much but you want to be aware of as a school district are an employee’s Garrity Rights. Again, this is something that’s not seen often, which is a good thing, because this comes into play when there is the potential that the conduct you’re investigating is going to have criminal implications or could result in criminal charges.

What the Garrity Rights allow are that you as an employer can direct the employee to answer questions and not allow them to invoke their Fifth Amendment Right. They are directed to answer questions for purposes of you completing your investigation, but it ensures that the district will not turn that information or evidence over to the police as part of any follow-up criminal investigation.

Miriam: When a person invokes their Fifth Amendment Right in a criminal context, they’re saying, “I don’t want to answer the lest it get me into criminal trouble.”

Sara:  Exactly.

Miriam:  What you’re saying is if you are investigating an employee issue that could potentially lead to criminal charges, the employee might want to say, “Look, I’m not going to answer any of these questions. This could lead to criminal charges.” But then because of these Garrity Rights, you as the investigator as the HR Director will say, “No, we’re not going to turn over anything over to the police. This is staying here. We’re not going to retell anything that you told us in any criminal investigation so you have to answer my questions.”

Sara: Correct. The potential of utilizing the Fifth Amendment right will either come from the employee or often the employee’s representative or the employee’s lawyer, depending on where you are in the process. They will advise the employee not to answer at which point you can come back with a Garrity warning. When you issue a Garrity warning, you will tell the employee about this. You will also have them sign off on a written Garrity warning as well.

Lisa: Basically, it’s permitting the district to actually conduct its thorough investigation without the employee feeling like they can’t answer your questions because it’s going to get them into legal trouble.

Sara: Exactly. Now, certainly, could the police learn the same information through their investigation? Absolutely, but it’s not going to be a situation where the district is turning over that information to the police. If you have an employee when you issue the Garrity warning who still refuses to answer your questions, that can be a separate ground for discipline and that they are being insubordinate because they are being issued a directive from their administrator, from their superior. If they refuse to comply with that directive, that constitutes the potential discipline for insubordination.

Miriam: Generally though, an employee interview is not like a police interrogation.

Sara: No. No spotlight shining on them in a dark room. It really should be the opposite because your goal in this interview is to get as much information as you can. Being open and allowing this to be a calm environment as much as possible, certainly, the employee is going to be nervous. They know there are allegations against them so you want to do what you can depending on the circumstances to make sure it’s a calm environment and it really operates more like a discussion.

We talked a little bit last time about asking open-ended questions, allowing the employee to share as opposed to asking specific questions where you get yes or no answers. Could you need to have some of those questions depending on the allegations, asking the employee directly, “Did you do this? Did you do that?” You might, but you want to do what you can to make sure the employee is sharing as much information as possible. You want to make sure you allow the interviewee to speak freely. You don’t want to be talking over them. You don’t want to be cutting them off.

You’re going to learn more information during the course of the interview that may lead to follow up questions that are part of an outline you have prepared or anything else. You want to make sure you’re paying attention and following up on the information that’s being shared. You can’t necessarily do that if you’re interrupting the person. Let them speak freely. Don’t tell them they’re being irrelevant. Sometimes I go off on a tangent to say, “No, no, no, that’s not relevant to what we’re talking about.”

Miriam: Just let them be irrelevant. [crosstalk]

Lisa: More often than not–

Sara: Yes, let them be irrelevant. More often than not, even if they’re going off or digressing a bit, it’s probably going to come back around and again, you might learn more information than you would by interrupting them or trying to bring them back. You keep interrupting the employee, it also changes the tone of the conversation. Once you do that a couple of times, the employee is going to say, “Well I’m not going to go out of my way to share more information.” The answers will become shorter and more limited. Again, that’s not what you’re going for.

Let them volunteer information. Again, some of it may not be relevant, but let them go. Let them share because nine times out of ten you’re going to get something that you didn’t have before and listen for contradictions. If you hear something that’s entirely different, half an hour into the interview that you’ve heard in the first five minutes, that’s going to be important for purposes of assessing credibility, potentially talking to other witnesses later on. You want to make sure, again, you’re letting the interviewee talk whether it’s good, bad or ugly, whatever they share, you want to let them get that out. You should do less talking than they do.

Lisa: Certainly, if you’re listening for those as you’re going through the interview, it gives you an opportunity to ask for clarifications while you’re still in that session versus having to call them back later.

Sara: Exactly. Again, some of those open-ended questions where they volunteer more will move you to more pointed questions based on those responses. Again, that listening part and letting them share at the outset is really, really critical. Again, keep the situation as calm as possible. Don’t have extra people in the room. If you have yourself and a fellow investigator, that’s fine, but you don’t want to have extraneous people in the room.

Lisa: It’s a little intimidating.

Sara: Yes, it’s intimidating and you also probably are going to get questions from the advocate or counsel for the employee about, “What is this person doing here? Do they have anything to do with the investigation? If they’re not conducting this, why are these extra people here?” Nine times out of ten there’s no reason. You want to make sure you limit the number of people in the room from that intimidation aspect, but also the relevancy aspect. Only have the people in the room that need to be in the room.

Miriam: I think these points that you’re sharing with us about how to strike the right tone, they apply not only to interviews with the actual accused employee, they also apply, I think, generally to anyone it is that you interview.

Sara: Exactly. Because again, regardless of whether you’re talking to the accused, you’re talking to the alleged victim or other individuals who just may have witnessed conduct or heard about misconduct, you want to make sure you’re getting the most information possible. These tips are really appropriate across the board for everybody you’re going to talk to.

Lisa: Sara, you mentioned in that discussion about having an outline that you’re following as you do these interviews. Sometimes we have administrators that work from a script, can you talk about when or when not to use a script and how to use it?

Sara: The $30,000 question.

Miriam: [laughs]

Sara: I would generally suggest having at least some kind of outline. Some administrators do not like to do that, and if they are absolutely against it, we’ll talk through in prep for that interview, more than likely. I think, especially the more allegations you’re dealing with or the more complex the investigation, the more important it is to have something to come back to because as you go through the interview, as their volunteering information, as you’re going off into different areas, it’s very easy to forget to come back to salient points that you want to hit on during the course of the investigation. I am pro-outline, it doesn’t mean you’re going to be following it verbatim, it doesn’t mean you don’t listen and potentially ask questions that weren’t either contemplated by the outline, but I think again, it’s a nice reference point to come back to so at least you’re hitting on all the points that you’re aware of as you walk into the room. Hopefully, nine times out of ten, it means that you don’t have to come back for that second interview because you just forgot something.

Lisa: It could just be a list of a couple bullet points of key things you need to ask about versus having really a script where it’s word for word, we have to ask this question, have to follow up with this question.

Sara: Sometimes administrators will ask for that, “Give me a blow-by-blow in terms of sentences, outlets, give me specific language to use.” That’s fine, but I think one of the things you want to remember, don’t allow your commitment to that script to prevent you from engaging in the conversation. Because sometimes- and lots of times–

Miriam: Go off-script.

[laughter]

Sara: Exactly, kind of like we’re doing.

[laughter]

Sara: I think a lot of times, it will happen with newer administrators who haven’t gone through as many investigations, and understandably so. You’re a little white-knuckled, you haven’t done this before, you want to make sure you’re doing everything you need to do, but you don’t want to get so connected to that script that you’re not listening. Again, sometimes you’re starting with issue one, and during the course of an interview, you hear about things that weren’t even on the table in terms of misconduct or other things you need to look into. If all you’re doing is white-knuckling with your script, you’re not really listening and not following up on those other things that are really important.

Miriam: Can I just ask a quick question, are these interviews audio-recorded usually or not?

Sara: Most interviews that our districts work with are not recorded, but they will take notes. If you have a fellow investigator, one investigator will typically ask the questions and another will take notes. Most situations, we do not have these, we do not have these recorded.

Lisa: Okay, thanks. I’m sorry for the interruption. Sorry.

Sara: Not at all.

Miriam: How do you feel about interviewing more than one person at a time?

Sara: I think it depends. I’ve managed one of these in every one of these. Most of the time, I would say no. The general rule on that is going to be no. Can there be exceptions to that in certain situations? There can be, but it really is the exception as opposed to the rule. Most of the time, you want to make sure you’re talking to people individually so they’re not feeling pressured, depending on who’s sitting next to them, to share some information, but not all information, or feeling constrained by somebody else in the room, certainly a superior, who may or may not want you to share certain details or you’re concerned about the implications of sharing details. Again, the general rule is no. Could there be a situation where you have more than one? There could be, but again, I would say that’s the rare, rare, rare exception to the rule.

Lisa: Do you ever have instances where you might have more than one investigator so that strategically one person can interview certain people and the other person interview other witnesses just because of what the relationships are?

Sara: You could. One of the things you want to do at the front end, like we talked about at the investigation, is try to find that neutral person so you don’t have to be going back and forth. In certain situations, when we worked with outside investigators, they have had two investigators present. Specifically in situations where we have had male investigators and a female witness, they will have two investigators in the room in that situation just for their safety’s sake.

Miriam: That’s interesting.

Lisa: An extra comfort, I would assume.

Sara: Exactly. Again, as I said, the nice thing too is if you have one person interviewing or asking the questions, conducting the interview, you could have the other person really focusing on taking notes. Because sometimes when you’re trying to listen, comprehend and get everything down, it can be challenging to do that. Again, a lot of our investigations are completed just fine using one person, but sometimes the district will say for any number of reasons that having someone else in the room is helpful.

Miriam: Yes, it’s very difficult for me when I’m doing witness interviews or whatever to take notes as comprehensively as I would if I wasn’t also asking the questions.

Lisa: Yes and to be thinking ahead for your additional questions you need to add. It’s a lot of multitasking.

Sara: The other thing you want to think about with your script or outline if you use it, is to the extent it’s feasible, you want to be asking the same or similar questions to witnesses that have more than likely similar knowledge. You want to make sure that’s as consistent as possible across the board.

Lisa: That’s a really good point.

Sara: Again, some of it’s going to vary just based on the nature of what the person knows or doesn’t know. You want to try to be consistent. Your outlines may change after you talk to the first person. If they share different information, your subsequent outlines may get longer, they may get shorter. Who knows based on different people, but you want to try to be as consistent as possible in terms of the questions that you’re asking, again, in a non-biased way, in a neutral way to different witnesses as you proceed.

Miriam: I can imagine, Sara, that as an attorney who practices in this area, you’ve seen some similar challenges the districts encounters. What are some of the typical challenges the districts encounter in this area of interviewing?

Sara: I think there are some things you need to be aware of that can be problematic. Again, they’re really reminders on the front end to make sure that you don’t have other issues come up as you proceed. One thing you want to make sure you’re doing in the interviews is instructing witnesses not to discuss their interviews with anybody else, and remind them they also may be reinterviewed as the investigation proceeds.

If witnesses start talking to each other, that can really color the course of the investigation. Let’s say in our situation from the previous episode, if you talk to Miss Jones, and then Miss Jones goes and talks to the parents involved, the other staff members, and shares information before you have a chance to talk to them, that could color their interview, the information that they share, and could obviously have the investigation go down a different line than it would otherwise.

Miriam: Let me just remind our audience, if you didn’t tune in to the previous Hanky Panky episode, you should go back and listen to them now. The scenario that we had set up as an example was Mr. Smith, he’s a special education teacher for students with multiple disabilities, and Miss Jones, his pair professional, his assistant, comes to the HR Director and shares that she’s very concerned about his inappropriate comments, maybe yelling, name-calling, as well as some physical hands-on aggression that she’s seen.

Sara, what you’re cautioning districts is that Miss Jones should be told not to go and discuss her interview with, let’s say the other pair professionals in the room or the speech and language pathologist or the therapist or whoever, because then when you interview those people, their conversation with you is going to be tainted a little bit by what she said.

Sara: Yes. You want everybody to come with their information, not have other people’s thoughts or interpretations or opinions of their interviews or their information playing into what they’re going to share with you. I think something else that we see that can be problematic that you need to be aware of during the investigation is looking at what are the precise details of what occurred? What you hopefully are not finding at the end of this investigation is, “Mr. Jones made an improper remark to a student”,-

Miriam: Right, you need more than that.

Sara: –as opposed to, “On this specific date, at this specific time, during this period, with these witnesses present, Mr. Jones said XYZ to this particular student”.

Miriam: “Shut up, you dumb kid.”

Sara: Exactly. Or engaged in this physical misconduct. He threw a ball across the room, he threw a notebook at a student, as opposed to, “He engaged in improper physical conduct”, or something along those lines. You want to be as precise as possible because, again, that’s part of conducting- a thorough investigation is getting down to the root of what occurred.

That’s also going to obviously guide you in terms of what the disciplinary consequence is going to be. Because, “He made an improper remark”, that’s a pretty subjective statement. What that means to you and me could be entirely different, as opposed to getting down to the nitty-gritty and the details of what he said, who he said it to. It’s also going to sometimes make the determination as to whether you need to report him to ODE for potential misconduct as well. Really being precise and as specific as possible in terms of your findings.

Lisa: Even if your witnesses say, “I don’t remember”, you want to at least be able to document that you asked the questions, you asked for more specifics.

Sara: Exactly. Which is again, the reason you definitely want to be taking notes during this. You’re also going to have to come back to those. If you interview 10 witnesses during the course of your investigation, hopefully, again, you’re doing it in a timely manner, but when you come back to get to your evaluation and reporting your findings piece of this, you need to make sure you’ve got all of the relevant information in front of you, which you’re not going to remember interview number one as clearly as you’re going to remember interview number 10. You want to make sure you have things documented appropriately.

Lisa: As we go through all this investigation and we’re trying to figure out what the findings are, are there certain ways administrators need to be reporting their findings, any specific format or anything they need to make sure that they include in the findings?

Sara: Sure. What has been [chuckles] my rally cry here right throughout, when in doubt, comply with your Board policy.

Miriam: Board policy! [chuckles]

Lisa: Are you sick of hearing that guys? You’re never going to forget now.

Sara: I hope not, never ever. You want to make sure obviously you’re complying with your Board policy first. Oftentimes a specific policy may ask you to provide findings in a written format, you want to have a written report of your findings. One of the most important things administrators need to remember is to be reporting the facts, not their subjective opinions on the investigation. Now, we talked about assessing credibility, and it’s part of it, but at the end of the day, you want to be reporting the facts that you found, not your opinion about Miss Jones or your subjective opinion about Mr. Smith. Can their credibility play into it? Yes, but you want it to be based in fact.

Miriam: I don’t want in other words, when I’m writing up my investigation of Mr. Smith to write, “Well, Miss Jones, she’s a drama queen. She is reported so much stuff this year. Just this is our 10th report.”

Sara: Exactly. You don’t want to be indicating, “This is the building gossip queen. This claim is just as ridiculous as the 14 others that she made before this.”

Lisa: However, if you’re weighing credibility, you might want to make a factual statement in the findings as far as she has made 14 allegations, and they’ve been investigated with no relevant findings.

Sara: I don’t even know that I would necessarily do that. What I would focus on are some of the questions that we talked about earlier, which is, let’s base it in fact relative to this complaint, because again, she could have 14 complaints that are completely ridiculous before this, this could be the one that’s legitimate, remember? I would say, if you’re going to talk about credibility, and you may need to, especially if it’s she said, talk about, did the stories match or come close? How does credibility play into that? Did Miss Jones contradict yourself, at some point during the interview or interviews, because that obviously, is going to go to credibility. Was she contradicted by other evidence? Did you look at emails that clearly contradicted her story or did she omit facts that other witnesses told you that were important?

Lisa: You would rather look at the whole picture and try not to narrow and just on one thing you have in your mind?

Sara: Exactly. Again, things we talked about before, don’t comment on the person’s reputation; those subjective opinions that really don’t have anything to do with this, and hopefully don’t play unnecessarily into your investigation.

Miriam: Sara, ultimately, your report is going to have one of three findings, right? There’s only three options at the end of the report, that the misconduct occurred or didn’t occur, or you just don’t have enough evidence either way.

Sara: That’s correct. You’re ultimately going to make one of those decisions. Critical things to think about when you’re writing your report or making this final determination, document the facts that you learned and support those with physical evidence, because again, whatever your conclusion is, keep in the back of your mind that it’s probably going to be challenged by the employee or somewhere down the line. You want to be thinking about that, to make sure, does this pass the red face test? If we found the misconduct did not occur are we supporting that appropriately, with the evidence, physical evidence and the interviews, the other evidence we’ve gathered with respect to that conclusion?

Miriam: Okay. Then, after you’ve reached your conclusion, what are the next steps? Are you discussing this with the superintendent, Board council, the accused, the complainant? Who is notified?

Sara: You want to meet with your superintendent to report those findings. You want to meet with HR to report those findings. You may be the HR Director conducting the findings but otherwise you want to meet with your HR department. You also may want to meet with Board council to discuss the findings and conclusions and those implications. Again, we talked earlier about reporting potential professional misconduct to ODE, do that.

Then again, you want to follow Board policy, because that will also often dictate who you talk to in terms of the alleged victim, the alleged perpetrator and give you parameters in terms of how you discuss those, who you tell and how you move forward.

Lisa: I don’t think we want to dive into it too much today but should you have a finding that there was misconduct and are moving towards giving some formal discipline, are there any things to keep in mind like the Loudermill hearing, things that our listeners should just have in the back of their mind, should you go that direction?

Sara: I think that’s an important additional right. We talked about the Weingarten and Garrity Rights earlier. The Loudermill is a hearing that is afforded to an employee and that’s provided prior to Board action to terminate. If the misconduct, either through progressive discipline, or the misconduct is so egregious that discipline is the ultimate recommendation that’s going to be made to the Board, the Loudermill hearing is a right that every employee has, whether it’s articulated specifically in the collective bargaining agreement or not. It’s a right that the employee has to allow them to share their story, to share their information or facts that they believe are relevant to making the termination decision that has to be afforded to the employee prior to the Board taking action. Typically, the superintendent will conduct that. It is a hearing that you are required to have prior to the Board taking action to terminate.

Lisa: Do you have any last words of wisdom or practical takeaways for our listeners today?

Sara: I think a really important thing to remember is to try to be as proactive as possible. You don’t want to be in a situation where you’re not prepared or not ready to address these situations but trying to cut these off at the pass or proactively remediate situations is a good thing to try to remember. Conduct training for employees and review mandated reporting requirements under Ohio law and Board policy. Make sure employees know when they need to be reporting, and let them know the parameters for what’s going to happen in terms of an investigation and what it’s going to look like.

I think sometimes when we talk to employees during investigations when something hasn’t been reported immediately, it’s because they either don’t know what’s going to happen when they report or they’re scared about what could happen when they report. Knowledge is at least half the battle, to making sure employees have that knowledge and are aware they can report and when they actually have to report situations of misconduct.

Miriam: You want to encourage them to report.

Sara: Absolutely, and make sure they understand about the internal process for making a complaint. All districts have those incident report forms, sometimes they’re used a lot more than others, but again, you don’t want an employee to come in and say, “I didn’t even know we had that. We have a reporting form? We have that incident report form?” You don’t want to be that district.

Lisa: So you’re going to be better off doing an investigation to look into things than being the district that missed an allegation.

Sara: Exactly. Again, some of that is being proactive and making sure not only the administrators know about this, but the employees because they’re the ones that are going to see a lot more misconduct, a lot more issues than the UR. They’re the ones on the ground every day doing the work with students, with fellow staff members. I think also informing employees about the Board’s expectations for reporting in tandem with us. There are certain situations where they’re required to report based on law.

Again, going back to the atmosphere we discussed, we want this to be a safe, comfortable, healthy learning atmosphere. If you see something that’s problematic and raises a yellow flag, not a red flag, a yellow flag, report it. Best case scenario, we look into it and there’s no problem. I would much rather have that situation than letting something go, ignoring, turning the other cheek and having a situation escalates to a much more problematic point.

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Miriam: It has been so nice to have you here, Sara.

Lisa: Yes, thank you for all these great pointers.

Miriam: This wraps up our series on employee discipline, and our next podcast episode will be exciting and new. You can listen to us on iTunes, Stitcher, and please give us some good ratings and feedback. Please email us, our emails are in the show notes. Please let us know if you have any ideas for other topics that you’d like to hear about. Have a great day.

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, it does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be to taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.