How to Conduct Investigations That Satisfy Legal Scrutiny

By: Jason Parker, JD, CMAA - Sapulpa, Oklahoma

In today's litigious society, allegations of misconduct and potential legal action against school personnel are often accompanied by feelings of anxiety, angst and anger. These pressures are not conducive to accomplishing the fundamental principles of educational programs, namely -- providing highly effective programming that develops student's skills and character. Programs affected by misconduct CANNOT be highly effective for students. As such, school personnel should be encouraged to identify and remediate wrongdoing, as part of their mission to help students be their best.

However, district leadership often grow weary of addressing these issues with vigor due to the potential negative consequences and backlash. Uncovering the truth requires digging in the mud; once the dirt flies no one is left clean. Still, carefully crafted systems will help Athletic Directors effectively address complicated allegations in a manner that produces equity for all stakeholders. The following is a system designed to protect your district, your department, and yourself while uncovering the truth after allegations of misconduct have occurred.

Benefits of Investigations

While it is hard to conceptualize investigations (and the work and bad feelings that are coupled with them) as something positive; remember that uncovering truth makes for effective programs. Furthermore, addressing allegations with consistency, courtesy and correct communication will establish accountability department-wide. You will gain the trust of Parents, Students, Coaches, and District leadership, which is definitely a good thing...in the long run.

Employing this mindset at the outset will provide some solace during the hard work investigations entail.

Know Your Duty

Athletic Directors take on many Human Resource functions, such as hiring, firing, creating policies, etc. Naturally, most allegations into the Athletic Department fall under the purview of Athletic Director. To ensure you are acting in a manner that will satisfy legal scrutiny into your actions once misconduct has been alleged; remember the acronym ACT. (A) Investigate the Allegations; (C) Conclude if Misconduct Occurred; (T) Terminate Wrongdoing. Performing these steps effectively will deflect liability and ensure your legal duty has been satisfied.

A: Investigate the Allegations

1. Commit to a Written Log

   Serious allegations require investigation; and each investigation should be conducted as though it will end up before a judge or other neutral arbiter. Consequently, detailed documentation is a requirement to demonstrate the due process stemming from the allegation. Therefore, Athletic Directors must commit to a written log, including the details of the allegation itself. Where multiple investigators will be used, electronic cloud storage is suggested, to allow real-time updates to the file. Whatever the method used, commit to documenting all aspects of the investigation.

2. Determine Initial Scope

   Athletic Directors should quickly identify the potential liability invoked by the allegations at hand. Doing so, will identify those needed to be involved in the investigation. If the allegations are completely true, what rules, regulations or statutes have been broken? League issues would involve League Administrators; school issues could involve Principals, Superintendents or other District Administrators; legal issues would involve District Attorneys and possibly State agencies. Establishing the parties involved in the investigation will help determine the flow of information and serve to protect the privacy rights of those being investigated. Sensitive personal information may only be shared, on a need to know basis, amongst those performing the investigation.

3. Determine Who will Lead Investigation

   Most Athletic Department investigations will need to be handled by the Athletic Director. But, some investigations could be large enough to require additional investigators. Perhaps, Principals, Assistant Athletic Directors, or other District Administrators need to be involved. Furthermore, be aware of conflicts of interest among investigators and those being investigated. Family ties, close friendships, or pre-existing bad blood between an investigator and investigate often introduce bias into the equation and prevent truth from becoming the priority.

4. Gather Evidence

   Only after setting aside time for the previous steps are you ready to proceed with gathering of evidence. Gathering evidence out of turn often ushers investigators into conflicts that will inflame the situation. Still, once ready to complete this step, it must be undertaken in a prompt manner. When facing serious allegations, performing an effective investigation is of primary importance on the Athletic Director's Task List. Unaccounted for time gaps in the investigation signify insensitivity on behalf of your Department and undermine the importance of justice. Unavoidable gaps due to events, school holidays, etc., may occur; however; the investigation should have a consistent chronological flow of work produced.

   Lastly, in addition to promptness, investigators should also be courteous. Investigations into serious allegations are fueled by emotions of everyone involved. Lubricating the wheels of justice with courtesy towards whistleblowers, interviewees, and investigators will help keep emotions in check and place primacy on truth finding.

C: Conclude if Misconduct Occurred

1. Conclude Based on Weight of Evidence

   Drawing a logical conclusion using the evidence follows the fact-finding phase of the process. Make your conclusion based on the sheer weight of the evidence, meaning, 'Did more evidence point to the fact that misconduct occurred, or that misconduct did not occur?' Know that no legal proceeding will judge your conclusion, if a reasonable person could have concluded similarly and gross injustice did not result.

2. Communicate Conclusion

   Whether the evidence corroborates wrongdoing, know that communicating a decision is the crux of the investigation. Superiors, investigators, and accusers should be notified of the conclusion in a manner that protects the privacy rights of those involved. Too often, school personnel fail to report their findings in a concise conclusion. The conclusion alone provides insight into the next steps in the investigative process.

T: Terminate Wrongdoing

1. Remediate

   Prompt remediation of misconduct naturally stems from uncovering wrongdoing. This step may involve dismissing or suspending employees, students or others. Before doing so it is important to establish that the misconduct contradicted clearly communicated rules and regulations.

2. Determine Cause

   Addressing the situation at hand is primary, however, to prevent reoccurrence, it is just as important to identify the systemic causes of the wrongdoing. Ensure that your policies adequately address all aspects of the issue. Reaffirm policies by making behavioral expectations abundantly clear using effective training. Even where wrongdoing is not explicitly located, seize the opportunity to optimize behavior through generalized training (i.e. student character training, employee sensitivity training, etc.).

3. Follow Up

   No matter the results of the investigative process, it is natural for many to come away feeling uneasy. It is important to ensure those involved are reinstated without backlash. It is also important to make sure retaliation does not occur. Check in with those involved to help prevent unintended negative consequences.

Failing to ACT

Failure to follow through with any step of this process is a failure to complete your legal duty as a Department Director. Consequently, negative consequences can result from failure to complete any of the steps listed. Dismissing allegations without proper due process can result in systemic misconduct that leads a court to finding the School or Department complicit in any offense that may have occurred.

Considering the allegations without communicating a conclusion could result in further allegations of a failure to report. Conclusions also become particularly important where misconduct is not found, since they may clear the reputations of those accused.

Lastly, failure to remediate locally and globally across the department, fails to address the issues which may have been uncovered. Courts are apt to impose liability due to the failure to create adequate policies or effectively enforce them. Ultimately, failure to complete any of the steps is a lost opportunity to recalibrate best practices and optimize Student programming.