CONDUCTING LEGAL & EFFECTIVE INTERNAL INVESTIGATIONS IN THE CIVIL SERVICE WORKPLACE TMHRA Civil Service Workshop Bastrop February 4, 2016 Sheila Gladstone Lloyd Gosselink Rochelle & Townsend, P.C. Austin, Texas lglawfirm.com 512.322.5800 sgladstone@lglawfirm.com 512.322.5863 Lloyd Gosselink Rochelle & Townsend, P.C. Austin, Texas lglawfirm.com
1 YOU BETTER KNOW 614B
TX GOV CODE 614.021-.023 Investigator should try to get written, signed complaint from complainant Given to employee within reasonable time, and before discipline To be considered by department head Applies to more than civil service employees Law enforcement officer Firefighter Peace Officer Detention officer or jailer (added 2005) Does not apply if meet and confer agreement covers investigations and disciplinary actions resulting from complaints (added 2005) Meet and confer need not include detailed procedures Graves v. Mack, 246 SW 3d 704 (TxApp Hous 2007)
614B CONTINUED Complaint includes allegations from supervisors Treadaway v. Holder, 309 SW 3d 780 (TexApp Austin 2010) 614B creates constitutional property interest Turner v. Perry, 278 SW 3d 806 (TexApp Hous 2009) Must provide citizen/victim complaint as well as internal notice letter No termination unless there is investigation and evidence of misconduct Hearing examiner doesn t have jurisdiction to overturn on 614 alone City of Athens v. MacAvoy, 353 SW 3d 905 (TexApp Tyler 2011)
STILL NEED TO INVESTIGATE DISCRIMINATION, HARASSMENT, EXCESSIVE FORCE COMPLAINTS EVEN WITHOUT STATEMENT Employers required to conduct prompt and thorough investigation if they knew or should have known of potential harassment or discrimination Delayed responses/investigations can lead to liability EEOC doesn t like you requiring a written complaint before investigation What if a citizen is scared to put in writing? Don t need a statement to start investigating you ll usually will have one before time for discipline
ACT EARLY TO DEFUSE EARLY
2 WHAT S A COMPLAINT?
EEO COMPLAINT KNEW OR SHOULD HAVE KNOWN Formal Written Verbal Implication Venting Observations Report from another Rumor Mill Off-Duty Report
COMMON REASONS SUPERVISORS DON T PASS ON COMPLAINTS TO HR: Not important enough Complainant is a known whiner Supervisor already knows the truth about the players The word complaint is not used The complainant won t write it down That s just how he is, don t worry about it
3 WHAT TO DO
FIRST Initial documentation of how it got on your desk and what it is you have Tell who you need to tell Don t tell who you don t need to tell
ARE YOU THE RIGHT INVESTIGATOR? Expertise and experience? Objectivity/Bias Real In eyes of Complainant In eyes of Accused Susceptible to question if more about you was known
INITIAL DOCUMENTS & DATA Identify Gather Review Policies/guidelines Personnel files Accounting Info Comparative Docs
IDENTIFY SPECIAL RESOURCES Experts Legal Human Resources Accounting Environmental Security Medical
4 BEGINNING THE INTERVIEWS
INTERVIEWS Ensure comfort with you & process Respect and dignity Explain reason for interview Explain confidentiality expectations Prepare for lawyer request Garrity warning when potential criminal allegations against witness
NOTES DURING THE INTERVIEW First person to create accurate statements Method Clarify fact versus opinion
CONDUCTING THE INTERVIEW Create statement Force chronology The 5 W s for each time block Separate opinions from facts in notes Identify other documents/witnesses
DURING THE INTERVIEW Never speak for witness Don t connect the dots Be a slow learner Avoid yes or no questions Use silence Broad to narrow Provide reliable contradictory information piecemeal
WHOM TO INTERVIEW Complainant and accused early on? Follow up at end again Talk to everyone identified unless good reason not to Other Witnesses - What Order? Most to least knowledgeable Determine need for surprise Evaluate confidentiality concerns
CONCLUDING THE INTERVIEW Ask anything else? Confirm accuracy of notes Request follow-up Answer questions Confidentiality
NOTE BEHAVIOR AFTER EACH INTERVIEW Objective Demeanor Voice/eyes/hands Emotional Reactions
POLYGRAPHS? Federal Polygraph Protection Act doesn t apply to public sector Courts don t always trust so don t reach conclusion based solely on polygraph results Section 614.063 (1997) governs discipline of peace officers for refusal/insubordination 143.051 Cases predate 614.063, but uphold insubordination for refusal
5 REACHING YOUR
REACHING YOUR CONCLUSION Goal is reasoned opinion, not absolute truth Don t let fear of being wrong paralyze you Good faith investigation & reasonable conclusion
REPORTING CONCLUSIONS Provide preliminary oral report Include in formal write-up: Background Issues Short answers Witnesses interviewed/documents reviewed Findings and Conclusions
REPORTING CONCLUSIONS Attach exhibits A Support credibility decisions: I did not give as much weight to his testimony because.. Document unsuccessful attempts to get information Phone calls Refusals to talk Scheduling problems Lost documentation
REPORTING CONCLUSIONS Proofread carefully Report is Exhibit A Accuracy Spelling and grammar Jargon and acronyms Objective writing
THANK YOU & GOOD LUCK Sheila Gladstone Attorney at Law sgladstone@lglawfirm.com 512.322.5863 Lloyd Gosselink Gosselink Rochelle & Townsend, Rochelle P.C. Austin, Texas lglawfirm.com & Townsend, 512.322.5800 P.C. Austin, Texas lglawfirm.com