HOW TO CONDUCT A MISCONDUCT INVESTIGATION ERIN HILLSON – CITY OF MADISON HUMAN RESOURCES PATRICIA LAUTEN – CITY OF MADISON OFFICE OF THE CITY ATTORNEY
Session 1
Objectives Structure and conduct a misconduct investigation By the end of this session, Create meaningful and participants will productive interview questions be able to: Identify and address complicating factors in public sector investigations
Agenda 3. Challenges, 1. Investigations and 2. Credibility and Scenarios, and Interviews Complicating Factors Discussion
Honor confidentiality Respect others and yourself Be brave but share space Use “I” statements – speak from personal experience Use active listening Be responsible for your own learning – Ask for what you need
Before We Begin 2. Let’s talk – what are 1. Populate the chat box some of the ways with the questions you hidden bias can creep developed while doing into, or be harmful to, the pre-work reading an investigation?
Basic Concepts Investigation Investigator Purpose • Objective process to • Trained person who • Allows the employer collect and analyse identifies issues, to make decisions information develops facts, based on accurate conducts interviews, information and distinguishes between fact and opinion
Investigative Guidelines Identify/exhaust Choose the Be very detailed all sources of Be timely right information investigator
Choose the Investigator In the chat box, list off things you should consider in selecting the right investigator?
Preliminary Steps Create a strategic plan/approach ◦ Define basic objective ◦ Create ordered witness/interview list ◦ Identify applicable rules, statutes, policies and other laws or regulations ◦ Create timeline ◦ Identify sources of information ◦ Don’t over complicate!
Participants Technology Witnesses (GPS, Video, etc) Sources of Information Internet Physical (twitter, evidence facebook, etc) Circumstantial Records and evidence documents
Investigative Process • Select time/location, provide notice • Conduct interviews with second supervisor Set Up Interviews • Tap all sources • Re-interview if necessary Compile Evidence • Compare interview information • Gauge credibility of evidence / Avoid assumptions Evaluate
Investigative Interviews
Constructing the Interview Prior to the Start with the Closed Open Questions Interview Basics Questions • Clarify what • What • Just the facts • Let them tell you are the story • When • “Did you arrive looking for to your • Have them put • Where • List facts still in assigned it in their own • How question training after words • Who was the 8:30 start • Use scripts • “Go through involved time on sparingly the incident • Why October 11, chronologically • Write an • How do you 2011?” from when he opening know arrived to work that day…”
Cardinal Rules Be Specific/ Use Ground Check Biases Get Answers Rules Require only if Flexible Listen/Observe necessary Fair and Follow-up if Confidential Objective needed Follow leads / Document Timely be complete
A Word from the Wise!
Investigation vs. Pre-D Pre- Investigative determination Different: ◦ Phase in the process ◦ Purpose/ function ◦ Representational rights ◦ Rights for employee/ Employer
Weingarten Union members have a right to have a union representative present during the investigatory stages of alleged work place violation if they request such representation and have reasonable belief that discipline may result Not appropriate Must be where Usually allowed for Not automatic requested of discipline is interviewer merely issued non-reps or direction provided
Written Report Background Investigative Summary/Findings Conclusion Strategy • Investigator • Preliminary Info • Findings of fact • Sustained violations • Complainant • Interview • Circumstances dates/times that support • Next steps • Respondant credibility • Process • Date / Signature • Date • Sources of • Basis conflict Pre-Determination Hearing Decision Issue Discipline
HOW TO CONDUCT A MISCONDUCT INVESTIGATION ERIN HILLSON – CITY OF MADISON HUMAN RESOURCES PATRICIA LAUTEN – CITY OF MADISON OFFICE OF THE CITY ATTORNEY
Session 2
Honor confidentiality Respect others and yourself Give everyone space to participate Use “I” statements – speak from personal experience Use active listening Be responsible for your own learning – Ask for what you need
Agenda 3. Challenges, 1. Investigations and 2. Credibility and Scenarios, and Interviews Complicating Factors Discussion
Before We Begin 1. Let’s talk – what do 2. Populate the chat box you see as the key issues with some of the initial you are investigating in questions you designed this scenario? for Jason or Janae
Evidence is weighted
Written Report Background Introduction Summary Conclusion • Investigator • Genesis • Findings of fact • Sustained violations • Recipient • Preliminary • Circumstances Info that support • Next steps • Date credibility • Interview • Date / • Purpose dates/times • Sources of Signature conflict • Process Pre-Determination Hearing Decision Issue Discipline
Let’s Try it Out An employee (E1) accuses a coworker (E2) of calling them derogatory names over leaving their old food in the refrigerator. The incident apparently occurred in the break room, where there are no recording devices. E2 indicates that there was no altercation, and they only remember stopping at the microwave to make their food and that E1 “might have been there,” but said no one else was. 1. We can’t do anything, it’s one person’s word against another VOTE 2. We can believe E1 because they wouldn’t have a reason to make it up 3. We need more investigation
Other Legal Issues Fourth First Criminal Amendment: Amendment: Cases Search and Protected Seizures Speech Arrest Conviction Off-Duty Record: misconduct Discrimination
Criminal Conduct - Garrity and Kalkines Garrity and Kalkines warnings are administered when it appears that an investigation has crossed over into a possible criminal prosecution. BOTTOM LINE: CONTACT HR BEFORE PROCEEDING FURTHER
Fourth amendment No search may be conducted by the government without a warrant and probable cause • Government searches to retrieve work related materials or to investigate violations of work-place rules . . . Do not violate the Fourth Amendment in the public agency environment.” • Reasonable expectation of privacy addressed on case by case basis • Search of purses, backpacks, briefcases, vehicles during a misconduct investigation could require probable cause and search warrant • Computer system is City property. No expectation of privacy in e-mail
Fourth Amendment Requirements It is “reasonably related in scope to the circumstances” that prompted Search limited to areas where Employer must point to specific, the search, i.e. measures taken by evidence can reasonably be found. objective facts which would support the employer are reasonably related Search must be ended when a search. to the search’s objective and are not evidence is found. overly intrusive in light of the nature of the alleged misconduct.
First amendment Congress shall make no law . . . abridging A public employer needs the freedom of to be able to reasonably speech. regulate employee conduct
Balancing test When a public employee speaks on a matter of public concern, the First Amendment protects the employee from discipline, provided the employee’s interest in expressing such views is greater than the state’s interest in regulating employee conduct so that services are delivered efficiently and effectively. Pickering v. Board of Education, 391, U.S. 563, 88 S.Ct. 1731 (1968)
Arrest and Conviction Record Prohibits discrimination based on arrest and conviction record. Employer may not Employer may conduct discharge employee an investigation and based solely on their discharge based upon arrest (innocent until unacceptable conduct proven guilty) or violation of policy
Off-duty Misconduct There must be a “nexus” to their employment through: Performance of Duties •Behavior harms employer’s • Behavior leads to refusal, reputation or product… reluctance or inability of • Behavior renders other employees to work employee unable to with [him] perform duties or appear to work, (discharge based upon inefficiency or excessive absenteeism) Inter-personal Reputation Barriers
Next Time Practice Answer Pair Up Interviewing Questions
HOW TO CONDUCT A MISCONDUCT INVESTIGATION ERIN HILLSON – CITY OF MADISON HUMAN RESOURCES PATRICIA LAUTEN – CITY OF MADISON OFFICE OF THE CITY ATTORNEY
Session 3
Agenda 3. Challenges, 1. Investigations and 2. Credibility and Scenarios, and Interviews Complicating Factors Discussion
Honor confidentiality Respect others and yourself Be brave but share space Use “I” statements – speak from personal experience Use active listening Be responsible for your own learning – Ask for what you need
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