The United States in the 21st Century has an increasingly compliance-driven culture. We live in the age of the 24/7 news cycle and instant media coverage, where one bad decision or misstep by an organization can affect public perceptions and reputations.
This is especially true of colleges and universities, which play important roles in their communities as employers and benchmarks of prestige and influence. University administrators and their legal counsel worry daily about when the next headline-grabbing incident will impact their institution. Everything from NCAA recruitment violations to allegations of academic dishonesty, sexual and racial harassment, excessive use of force by campus police, and student sexual assaults, as well as data breaches and cyber security incidents, can immediately drive a pristine, tree-lined campus into crisis management mode. How reports and incidents of such matters are handled can impact reputations for years to come.
Many allegations of misconduct on college campuses are properly investigated and resolved internally by Human Resources personnel, Title IX specialists, in-house legal counsel, and other senior staff persons. All of these types of cases need to be handled with sensitivity and skill, and there is no substitute for experience, training, and good judgment. Even factually simple cases – such as the he-said/she-said sexual assault allegation – can be anything but easy to resolve. However, understanding the basic principles of a sound internal investigation will help resolve cases fairly and maintain institutional integrity.
Basic Principles of Internal Investigations
The basic objective of any internal investigation is to gather sufficient information to determine the facts of what actually happened. The investigator is not, and never should be, an advocate for one side or the other. Rather, the investigator is a fact finder, not a prosecutor or cop. Investigators must resist having any preconceived agenda.
The following are 12 basic principles for effective and properly-conducted internal investigations, some with particular applicability to the university context:
- Be fair and objective. Everyone involved in an investigation deserves to be treated with respect and dignity. This includes the person making the accusations, the subject of the investigation (the accused), and everyone who may become involved as a witness or source of relevant information.
- Do not pre-judge. While skepticism and healthy doubt are good traits of any investigator, it is important to not jump to conclusions. Wait until all witnesses have been interviewed and evidence examined before reaching factual determinations.
- Avoid the appearance of bias. If the key parties to a dispute or allegation of misconduct are personally known to the investigator, someone more independent should be brought in to conduct the investigation. Similarly, if the allegation of misconduct is against a high-level university official, an outside third party with no ties to the university should be hired to conduct the investigation.
- Plan and outline the investigation before you start. One of the most common investigator errors is poor planning, i.e., not thinking through who should be interviewed and in what order, and what documents and evidence – emails, text messages, accounting records, expense reports – should be gathered before interviewing certain witnesses. Consider also who needs to be notified and what interim measures are needed (e.g., temporarily restricting access to computers or suspension with or without pay pending an investigation).
- Investigate promptly. But do not unnecessarily rush things. Certain investigative steps may need to be done immediately – for example, preserving electronic and other evidence. But rarely should an investigation be rushed and prematurely concluded due to some arbitrary deadline.
- Keep the investigation separate and independent from the stakeholders. While the investigation is ongoing, especially in sensitive matters, the university president, provost, general counsel, or board members may wish to be kept apprised of the investigation’s progress and preliminary findings. This should generally be avoided so as not to compromise the integrity and independence of the investigation itself.
- Never mislead a witness. While you should not disclose details of the investigation to your witnesses, do not make promises you cannot keep and do not lie to or make misleading statements to the witnesses. Do not give anyone the opportunity to later challenge the professionalism and integrity of the investigation.
- Protect confidentiality. Failure to take reasonable precautions to protect the confidentiality of the investigation and the witnesses being interviewed can damage reputations and potentially lead to cover-ups, liability, and retaliation. Although the results of the investigation may eventually become public, protecting confidentiality during the investigation is critical.
- Protect reputations. Nothing can undermine the credibility of a university-based investigation more severely than if the investigation fails to adequately protect the reputations of students, university employees, and witnesses.
- Investigate acts of retaliation. If during the investigation you receive a report or allegation of retaliation against the person who reported the misconduct or any other witness, the alleged retaliation must be immediately and thoroughly investigated.
- Seek every witness’s cooperation. The investigator’s goal is to gather as much information as possible and to determine the facts. Try to obtain the cooperation of all potential witnesses, not only those who may support or corroborate one side of a dispute.
- Reach a conclusion. Even in difficult cases involving conflicting accounts from equally credible sources, it is important to make determinations regarding credibility and reach reasonable fact-based conclusions based on a thorough evaluation of the evidence.
While there is no single “right” way to conduct an internal investigation, ignoring these 12 principles could impair a university-based investigation and potentially compromise reputations and institutional credibility, and also expose the university to the risk of liability. A professionally-handled and well-managed investigation may not satisfy all stakeholders, but if it remains fair and impartial and distinguishes fact from innuendo, its conclusions will garner respect and be difficult to challenge.
To learn more about how Kroll can assist universities with internal investigations and managing security risks on campus, download our brochure or contact us.