csi® school district...the office of the governor of new jersey retained gibson dunn law firm to...

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CSI® School DistrictKeys for Investigating Employee and Student

Misconduct

Presented by: Bennett Rodick and Stephanie JonesHodges, Loizzi, Eisenhammer, Rodick and Kohn LLP

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What?

Sexual misconduct

Harassment

Bullying

Cyberbullying

Cheating

Social networking

Drugs

Alcohol

Who?

Students

Staff

Parents

School board members

Community members

Misconduct in Our Schools

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Attorney as Investigator, Attorney Client Privilege and the Work

Product Doctrine

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Trammel v. United States (1980)

Upjohn v. United States (1981)

United States v. Nobles (1975)

United States v. Smith (2007)

Background on the Role of Attorney as Investigator

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Attorneys as Investigators and the –Gate Scandals

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Attorneys as Investigators and the –Gate Scandals

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United States v. Nixon (1974)

Counsel to Senate Watergate Committee demand access to tape recordings set up by the Nixon administration.

Supreme Court finds that Senate Watergate Committee and attorneys are entitled to access to tape recordings.

Watergate

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Deflategate

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Deflategate

National Football Management League Council v. National Football League Players Association (2015)

Tom Brady requests “all documents created, obtained, or reviewed by NFL investigators (including Mr. Wells and his investigative team at the Paul, Weiss firm and NFL security personnel) in connection with the Patriots’ investigation (including all notes, summaries, or memoranda describing or memorializing any witness interviews.”

District Court of the Southern District of New York finds that Goodell’s failure to produce this information is “fundamentally unfair,” and that Brady was “prejudiced as a result.”

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Warnings for School Attorneys from Deflategate:

Be cautious about blending the role of attorney as independent investigator and attorney as legal advocate

“[T]he Paul, Weiss role in this case…changed from ‘independent’ investigators to NFL’s retained counsel.”

“[M]ay have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other investigative information which was not available to Brady.”

“Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul , Weiss attorneys’ cross-examination of him.”

Deflategate

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Bridgegate

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United States v. Baroni (2015)

The Office of the Governor of New Jersey retained Gibson Dunn law firm to conduct an investigation into the closure.

“During tis two month investigation, [Gibson Dunn] conducted over 70 interviews and reviewed more than 250,000 documents.”

Defendants sought discovery of “any and all handwritten or typed notes, stenographic transcripts and audio and/or video recordings of witness interviews…”

Gibson Dunn claims that “no notes, transcripts, and recordings of the witness interviews exist separate from the interview memoranda that [Gibson Dunn] released to the public and that [Gibson Dunn] furnished…to Defendants.”

Bridgegate

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Warnings for School Attorneys from Bridgegate:

Use caution when deviating from normal practices for the sole purpose of avoiding discovery.

“When public investigations are involved, straightforward lawyering is superior to calculated strategy.”

Bridgegate

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Attorneys as Investigators in the School Setting

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Sandra T.E. v. South Berwyn School District, 600 F.3d. 612 (7th Cir. 2009)

Elementary school music teacher charged with sexual molestation of students.

School principal was “alleged to have been deliberately indifferent.”

“The School Board hired attorneys from Sidley Austin LLP to conduct an internal investigation and provide advice to the Board.”

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Sandra T.E. v. South Berwyn School District, 600 F.3d. 612 (7th Cir. 2009)

Attorneys interviewed, took notes, and drafted summary memos.

Plaintiffs issued a subpoena “for the documents in Sidley’s possession relating to its District 100 investigation.” Sidley declined to produce the notes on the basis of the attorney-client privilege and the work product doctrine.

Seventh Circuit found that “the law firm’s documents were protected by the attorney-client privilege and the work product doctrine.”

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Warnings for School Attorneys from South Berwyn

Engagement letter

“[T]he Sidley lawyers were hired in their capacity as lawyers to provide legal services—including a factual investigation.”

The letter stated that Sidley “had been hired to ‘investigate the response of school administration to allegations of sexual abuse of students’ and ‘provide legal services in connection with the specific representation.’”

Executive summary

“The written executive summary that Sidley turned over to the Board was marked ‘Privileged and Confidential,’ ‘Attorney Client Communication,’ and ‘Attorney Work Product.’

Representation

Sidley did not represent the defendants in litigation.

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Wartell v. Purdue University (N.D. Ind. 2014)

Outside counsel hired to investigate internal complaints of discrimination and harassment.

Attorney engaged in investigatory interviews and submitted a report.

Plaintiffs requested a copy of the report and Purdue denied their request.

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Wartell v. Purdue University (N.D. Ind. 2014)

District Court required disclosure of attorney’s investigation report that was provided to university trustees.

“Apparent that Trimble [the attorney-investigator] acted in the role of an independent investigator rather than as an attorney. Generally, Purdue selected an employee to conduct investigations.”

Trimble “didn’t disclose that he was acting as Purdue’s attorney.”

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Warnings for School Attorneys from Purdue

Disclose that you are acting as an attorney.

Engagement letter.

If investigation is usually undertaken by a non-attorney, document reasons why an attorney is investigating.

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Special Considerations for Investigations in the School Setting

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Review FOIA exemptions before disclosing investigatory materials.

Example: Illinois Freedom of Information Act Exemptions

“Information concerning a school or university’s adjudication of student disciplinary cases,” is exempt, “to the extent that disclosure would unavoidably reveal the identity of the student.”

“Materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body,” are exempt.

“Records relating to a public body’s adjudication of employee grievances of disciplinary cases,” are exempt, with the exception that the final outcome of such cases where discipline is imposed may be disclosed.

Freedom of Information Act

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Legal Considerations for Investigating Student Misconduct

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Illinois

Specific procedures for investigating student bullying.

Reporting procedures, procedures for informing parents and guardians, requirement of making all reasonable efforts to complete an investigation of bullying within ten school days.

Massachusetts

Specific procedures for investigating student bullying.

Requires reporting to the state Department of Education; gives the state Department of Education authority to investigate alleged instances of bullying.

California

Procedures for receiving and investigating complaints of bullying.

Requires the state Department of Education to assess whether local educational agencies have adequate investigation policies.

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Bullying Investigations

Illinois Right to Privacy in the School Setting Act

Repealed. Allowed schools to request or require a student to provide his or her password to a social networking website if school officials had ‘reasonable cause’ to believe that the student’s account contained evidence that the student violated a disciplinary rule or policy.

Currently, when an administrator suspects a violation of school rules or the law via a personal social networking site, the administrator can request but cannot require, the password.

Fourth Amendment still applies.

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Access to Students’ Social Networking Profiles

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Louisiana Personal Online Account Privacy Protection Act

A school shall not request or require disclosure of usernames and passwords to online accounts unless such passwords are to school issued communications devices paid for in whole or in part by the educational institution.

Nothing prohibits a school for accessing social networking information that is in the public domain.

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Access to Students’ Social Networking Profiles

Legal Considerations for Investigating Employee

Misconduct

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Illinois Right to Privacy in the Workplace Act

Employers may not:

Demand access to employees’ or applicants’ social networking passwords

Request or require employees or applicants to provide passwords or other account information

Employers may:

Monitor employees’ use of social networking sites or emails on district-owned equipment

Obtain information that is available in the public domain

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Access to Employees’ Social Networking Profiles

Louisiana Personal Online Account Privacy Protection Act

Employers may not:

Request or require an employee to disclose any username, password, or other authentication information to the employee’s personal online account

Employers may:

Require passwords for devices paid for by the employer

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Access to Employees’ Social Networking Profiles

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If dealing with alleged employee conduct that could result in criminal charges, the investigator may want to contact the District Attorney’s office before holding an investigatory meeting.

Provide the employee with pre-meeting notice in writing containing the purpose of the meeting and the time, date and location of the meeting.

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Before Interviewing An Employee

Atwell (7th Circuit only)

When a governmental employer interviews an employee about misconduct of a criminal nature, the employer must provide an “Atwell warning.”

Employer may force an employee to answer questions pertinent to the investigation involving criminal conduct; however, the employer must then grant immunity from criminal prosecution on the basis of their answers.

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Interviewing An Employee

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Weingarten

An employee has a right to union representation during an investigatory meeting that the employee reasonably believes may lead to discipline.

The right only arises when the employee actually requests representation (unless a collective bargaining agreement requires the district to advise employees of their Weingarten rights).

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Interviewing An Employee

Constitutional Protections Against Unreasonable Search and Seizure

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“The right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and nowarrants shall issue, but upon probable cause,supported by oath or affirmation, and particularlydescribing the place to be searched and the personsor things to be seized.”

Fourth Amendment

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Protects against unreasonable searches and seizures.

Question 1: Is the search subject to the Fourth Amendment?

Does the individual have a reasonable expectation of privacy in the area to be searched?

How intrusive is the search?

Question 2: Is the search reasonable?

The standard for reasonableness varies depending on the circumstances of each case.

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Fourth Amendment

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A district may legally conduct a search of an employee when the search is justified at its inception and reasonable in scope.

Step One: Is the search justified at its inception?

School official must have reasonable suspicion that a particular regulation or law has been violated and that search will produce evidence of violation.

Step Two: Is the search reasonable in scope?

Is it tailored to uncover evidence of the suspected wrongdoing?

Relevant facts may include the gravity of the suspected offense and the context of the search.

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Searches by School Officials

School officials may search items in plain view without reasonable suspicion.

Items in plain view

School property (e.g. lockers, desks, and parking lots)

Cars parked in school parking lots

School officials must have reasonable suspicion to search personal effects (e.g. purses, pockets, and backpacks).

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Searches by School Officials

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Special Considerations for Involving School Resource Officers

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Student records issues

Review reciprocal reporting requirement, intergovernmental agreement, and state student records laws.

Miranda warnings

School resource officers and school administrators may be required to give students Miranda warnings before questioning.

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Special Considerations for Involving School Resource Officers

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How To Investigate

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Beginning an Investigation

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An investigation almost always starts with some sort of complaint or allegation of wrongdoing.

Complaints may come from a variety of sources (e.g. parents, students, employees, community members and anonymous sources).

When complaints come in, they should be given immediate attention.

Complaints

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Attorney, administrator or other supervisory employee

The investigator should NOT be:

Someone close to the complainant or the alleged

A teacher or other non-supervisory employee

Choosing an Investigator

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Questions to consider:

Can he or she keep accurate records?

Can he or she carefully interview witnesses and keep confidential information?

Can he or she complete an accurate and thorough investigative report?

Choosing an Investigator

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The investigator should open a file for the investigation. All investigation documents should be kept in a single location.

The investigation file should be maintained in case legal action occurs.

Remember, there is a legal obligation to preserve evidence of an incident that may reasonably result in litigation.

Opening a File

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The assigned investigator should begin by reviewing applicable Board of Education policies. Such policies may include a Uniform Grievance Procedure, a Workplace Harassment Policy, and/or a Bullying and Harassment Prevention Policy.

The investigator should also review applicable collective bargaining agreements which may impose obligations to provide notice to the accused employee or contain provisions relating to the conduct of an investigation.

If litigation is likely to follow, the District’s insurance carrier should be notified.

The investigator should arrange a time as soon as possible to meet with the complainant.

Investigators First Steps

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Conducting the Investigation

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Interviews should be conducted promptly while memories are still fresh.

Two individuals should be present during interviews.

Witnesses should be interviewed separately (or with a union representative, if applicable).

Interviews should be discreet (in a private room and scheduled in way that does not draw attention to the fact that something unusual is occurring).

General Guidelines for Conducting Interviews

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When interviewees ask to keep information confidential, inform them that confidentiality will be maintained to the extent possible, but that you cannot promise confidentiality.

Get as much information as possible in writing (e.g. by signed witness statements or written summaries of interviews).

Take note of the interviewee’s mannerisms.

Do NOT tape record interviews.


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Begin by explaining, generally, what you are investigating.

Explain that you will be taking notes during the interview.

Start with general, open-ended questions to obtain information on what the witness observed.

Take your time.


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Request written statements or ask interviewees to sign your written statement of the interview to maintain accuracy.

Obtain documents relating to the incident.

Describe general procedures for the remainder of the investigation.

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Obtain sufficient details for each relevant incident, including:

Date and time

Location

Who was present

Detailed description of what occurred

Reaction(s) to the incident

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Information to Collect

This should be the first interview.

Provide the complainant with a copy of applicable Board of Education policies.

Ask the complainant why he or she is reporting the incident.

Consider whether any precautions need to be taken during the investigation (e.g. separating the complainant and the accused; placing the accused on leave).

Advise the complainant to return if any further incidents occur.

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Interviewing the Complainant

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The alleged victim should be the second person interviewed (assuming the complainant is not the victim).

The witness should be asked whether they reported the incident to anyone else. If so, they should be asked to whom they reported the incident to and when.

The witness should be asked whether anyone else observed the incident. If so, they should be asked who observed the incident.

The witness should be thanked for cooperating in the investigation and it should be explained that the witness should not share what was discussed in the interview with anyone else.

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Interviewing Witnesses

Two people should attend the meeting with the accused.

Prior to the meeting, the investigator should review notes of other witness statements and make a list of all of the relevant incidents.

The investigator should explain the subject and nature of the complaint and advise the accused that they simply wish to obtain his or her version of the incident at issue.

The investigator should NOT express or imply agreement with any accusations made by any person or any statements made by the accused.

If the accused denies the incident, the investigator should ask for any possible reason or motive for the complainant to make the allegations.

The investigator should ask the accused if there is anyone else that the accused believes should be interviewed as part of the investigation and whether there are any relevant documents.

The investigation should direct the accused not to confront the complainant and to avoid retaliation of any kind.

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Interviewing the Accused

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Evaluating and Reporting the Evidence

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Compare witness statements:

Is there a pattern of conduct that would tend to support the allegation?

Follow up with the complainant, the accused, or other witnesses, if necessary.

Do not end the inquiry simply because no corroborating evidence can be found. Instead, make a reasoned judgment as to the parties’ credibility.

Evaluating Information Collected

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The report should include:

Description of the allegations

Response of the accused

List of individuals interviewed

Supporting facts obtained during the investigation (and a summary of each person’s testimony, if necessary)

Investigator’s conclusions as to each incident

Reporting on the Outcome

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Depending on the severity of the allegations, the report should be prepared with the help of legal counsel, even if legal counsel was not the investigator.

Be aware that the report may become discoverable in subsequent litigation.

Keep the report, investigation file, and related documents as confidential as possible.

Disclose the report on a need-to-know basis.

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Reporting on the Outcome

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Concluding the Investigation

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Investigator completes report and findings.

District may want to consider other corrective actions (e.g. staff trainings and social work/counseling services).

Investigator should meet with the accused and inform him or her that the investigation has been completed and that the complaint has been substantiated or unsubstantiated. The investigator should meet with the accused even if the result is unsubstantiated so as not to leave the accused in limbo.

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Concluding the Investigation

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In contentious or high profile investigations, the school attorney may be approached by local media to discuss the investigation and serve as the “spokesperson for the Board.”

School attorney and the Board must be on the same page as to any media statement made. Discuss any statement you plan to make with the Board and Superintendent prior to release.

Be aware of inadvertently waiving the attorney client privilege.

Be aware of student and employee privacy.

Dealing with the Media

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Thank You!Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP

3030 Salt Creek Lane

Suite 202

Arlington Heights, Illinois 60005

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csi® school district...the office of the governor of new jersey retained gibson dunn law firm to...

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