Featured in Anton Publications Profiles in Education special section
By, Lawrence J. Tenenbaum, Esq., Partner and Chair of the Education Law practice group
We’ve all seen headlines about misconduct by teachers or other school employees. It may seem like it is simple – fire the employee. But firing a school employee may require a hearing. In addition, school officials should, and are often required to, perform an official investigation before taking any action. How school officials investigate misconduct can affect the school’s reputation, environment, and operations. Further, the school could be exposed to liability if the investigation is not properly conducted, and appropriate action is not taken.
As an attorney who focuses on education law and public sector labor and employment law, I offer the following practical advice on how schools should handle an investigation effectively, and what the public should expect before seeing any results:
Step 1 – Intake
Typically, the complainant, if any, will be interviewed early in the process. If wrongdoing is uncovered by means other than a complaint, the school should speak with the source of the concern.
Step 2 – Gather Evidence
Schools need to gather documents and other evidence to establish a record to corroborate or disprove wrongdoing. Evidence might include letters, memos, emails, voicemail or text messages, phone records, footage from security cameras, etc. When applicable, computers, hard drives, flash drives, tablets and phones should be examined, and in some cases secured to protect the information.
Step 3 – Interviews
The first witness will typically be the complainant, if there is one. Other witnesses, if any, should be identified and interviewed to gather additional and/or corroborating evidence. The accused is typically interviewed toward the end of the investigation. He/She may be entitled to certain rights during the investigation and should be given an opportunity to present his/her side of the story. A tenured teacher generally cannot be compelled to provide self-incriminating information and may be entitled to refuse to answer questions in any pre-hearing investigation.
Step 4 – Evaluate the Evidence
Investigations often result in conflicting information and sometimes come down to one person’s word against the word of another. Determining the credibility of witnesses is particularly important in such situations. Schools need to consider whether a witness’ statements make sense when considered alone, whether the evidence tends to support one account over another and whether any facts have been corroborated or refuted by credible evidence. Assessing the demeanor of witnesses is also appropriate in making credibility decisions.
Step 5 – Reach a Conclusion and Take Action
Once the school reaches a conclusion regarding guilt or innocence, they can implement corrective action as appropriate such as training, a memo to the personnel file, reassignment/transfer, separating individuals, and discipline up to termination. Any such action must be consistent with applicable contracts and statutes.
Step 6 – Advise the Parties
It is a good practice (and in some cases it is required) for the school to inform the complainant of whether the allegations were substantiated or unsubstantiated, and what action will be taken. They also need to notify the accused of the investigation’s findings and the actions school officials intend to take.
Step 7 – Follow Up
Once the investigation is complete and corrective action is implemented, schools should also follow up to ensure that there has been no post-investigation retaliation.
Public sector employee misconduct is different in some important ways from the private sector. While it may seem like things are being ‘swept under the rug’ or ignored, laws, confidentiality concerns, employment contracts and collective bargaining agreements often dictate the procedures that must be followed to ensure a fair and through investigation before any action can be taken. Assumptions that nothing is happening are often incorrect.
I encourage schools to have a plan in place so they are ready if and when an incident occurs. Then follow the steps outlined above to act in a prompt, fair and impartial manner where allegations of misconduct have been raised. Doing so will protect the students, staff and school and contribute to an effective environment for all concerned.
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