Mechanics of Confidential Investigations And Determinations of Cause WHAT EVERY AFFIRMATIVE ACTION OFFICER NEEDS TO KNOW Richard A. Rose, MA, MEP 1 "He who knows only his own side of the case, knows little of that." John Stuart Mill On Liberty 2 Topics Responsibilities Process Why have a Process? Role of the Supervisor Filing a Complaint of Discrimination with the AAO Initial Meeting with the Complainant Initial Determinations The Formal Complaint Process The Investigation Evidence Drawing Conclusions and Reporting Investigative Findings Documentation Integrity 3 Discrimination Complaint Responsibilities The Agency Head Adoption and implementation of the complaint procedure Assuring that sufficient staff is assigned and trained Directing the implementation of corrective action Affirmative Action Officer Coordinating complaint proceedings Conducting or overseeing investigations Overseeing the implementation of corrective action by administrative units 4 Process Intake Complaint process Investigation Time frames Confidentiality Retaliation Accessibility Reporting Implementation of Corrective and Final Actions Document Dissemination and Storage Record keeping 5 Why have a Process? 6 Benefits of an Internal Complaint Process Having an internal procedure gives you ... The opportunity to resolve complaints quickly through the use of established procedures for their review The ability to identify training needs based on your observation of behavioral patterns and practices that may lead to discrimination complaints The capacity to identify and prevent potential violations of Human Rights Law The opportunity to correct violations internally without unnecessarily subjecting itself to litigation or administrative hearings 7 Fifth Amendment and 14th Amendment The Fifth and Fourteenth Amendments of the United States Constitution provide protection against discrimination by federal and state governments. The Fifth amendment prohibits the federal government from depriving individuals of "life, liberty, or property," without due process of the law. It also guarantees that each person receive equal protection of the laws. The Fourteenth Amendment prohibits states from violating an individual's rights of due process and equal protection. 8 Major Federal Statutes The Equal Pay Act amended the Fair Labor Standards Act in 1963 Title VII of the Civil Rights Act of 1964 The Age Discrimination in Employment Act (ADEA) The American with Disabilities Act (ADA) 9 Authority Guidelines pursuant to Federal Executive Order #11246 require recipients of Federal funds to establish a complaints procedure to respond to allegations of discrimination as a component of each recipient’s Affirmative Action Program. Affirmative Action Guidelines issued by the NYS Department of Civil Service, pursuant to Executive Order #6 similarly requires the implementation of an agency complaint procedure. 10 Affirmative Action in NYS ■ New York State Constitution - Article 5 (Merit and Fitness) ■ Executive Law - Article 15 (Equality of opportunity) ■ Executive Order No. 6 (as continued) (Affirmative Action Program) 11 New York State Constitution ARTICLE V § 6. “Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive; …” 12 Article 15 § 291. Equality of opportunity a civil right. 1. The opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex or marital status is hereby recognized as and declared to be a civil right. 13 Types of Discrimination Age Discrimination Disability Discrimination Equal Pay and Compensation Discrimination National Origin Discrimination Pregnancy Discrimination Race-Based Discrimination Religious Discrimination Sex-Based Discrimination Sexual Harassment Sexual Orientation Retaliation 14 Notification to the Agency Work Force about the Complaint Process To be effective, it is important that the work force is notified and reminded about applicable federal statutes NYS Human Rights Law agency Equal Employment Opportunity policy and the complaints procedures This notification must be reinforced periodically to maintain a level of utilization 15 Notification to the Agency Work Force about the Complaint Process Some suggestions for reinforcing information on federal, State, and Agency Policies are: Orientation Presentation at orientation sessions for new employees Printed material listing contact person with phone numbers may be included in Orientation Packet Agency Newsletter/web site Periodically place articles about the purpose of the Affirmative Action Office and how to contact it. Announce or report on training opportunities or holidays. Write about new laws or regulations affecting protected classes. 16 Notification to the Agency Work Force about the Complaint Process Bulletin Board Post your antidiscrimination policy on all employment bulletin boards, and … In all public lobbies Other Activities Include information in supervisor training and in manuals. Periodically reissue Commissioner’s Affirmative Action Policy 17 The Role of the Supervisor Prevention and Resolution at the Lowest Level 18 Initial Supervisory Role Many potential complaints are handled through the supervisory chain Informal Procedure – without a formal investigation Whenever possible, discrimination complaints should be resolved at the lowest level Informal resolution The supervisor or manager should always consult with a higher level manager Employee knows they have the right to file a complaint If the complainant is not satisfied with the attempts to resolve the problem, the complainant may seek remedy through the Affirmative Action Officer or other sources 19 Potential for Informal Resolution ASK YOURSELF... 1. Is the propriety or impropriety of the act obvious? EXAMPLE: Sometimes when you explain to the parties why an act is legal or illegal, fair or unfair, they are willing to drop or correct the matter. 2. Is the aggrieved act reversible or preventable? EXAMPLE: Hires and promotions, once made, are rarely reversed. Disciplinary actions can be reversed and offensive supervisory practices can be changed. 3. Are the parties disposed to resolving the complaint? EXAMPLE: One or both of the parties may say that they really don’t feel like going through with the process. 20 ASK YOURSELF... 4. Would a discussion between the two parties help to resolve misunderstandings? EXAMPLE: On occasion a complainant’s receiving an explanation from the respondent on the reasons why something was done or not done is all that the complainant wants. 5. Will acquiring an agreement from the respondent to correct or alter the action satisfy the complainant’s terms of resolution? EXAMPLE: Sometimes, what the complainant wants to happen to resolve the complaint is not doable or justifiable. If the answer is “yes” to one or more of these questions, try to proceed. If the answer to all of the questions is “no” then a formal complaint may be the result. 21 Filing a Complaint of Discrimination with the AAO Who…When…Where 22 Who Can File a Complaint of Discrimination with the AAO? Any employee or applicant for employment may file a complaint who claims to be aggrieved on the basis of race, sex, etc., by any employment practice, policy, or procedure The individual must be aggrieved Complaints cannot be filed on behalf of another person or persons who were aggrieved, although more than one employee, if affected, may file joint complaints Someone who is a customer, client, patron or user of your Agency’s service Someone who is a contractor, vendor or other service provider who works with or comes into contact with your employees during their work Complaints must be filed in a timely manner from the date the alleged discrimination took place 23 Where and When Agency – your policy outlines your process NYS Division of Human Rights New York State Division of Human Rights Intake Division One Fordham Plaza, 4th Floor Bronx, NY 10458 may file a complaint within one year of the unlawful discriminatory act U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street New York, New York 10004 Buffalo Local Office 6 Fountain Plaza Suite 350 Buffalo, NY 14202 must be filed with EEOC within 180 days from the date of the alleged violation 180-day filing deadline may be extended to 300 days if the charge 24 also is covered by a state or local anti-discrimination law How Complaints are Filed Complaints may be filed in person, over phone, or by mail; however a standardized complaint form is preferred as it provides needed information for the investigation The Agency should have a standardized form for filing discrimination complaints internally Discrimination complaints filed with the New York State Division of Human Rights (SDHR) or EEOC will be sent to the agency as the “respondent” when the investigation begins 25 When Complaints are filed with the EEOC or SDHR, the Role of the AAO is: TO ADVISE/ASSIST THE RESPONDENT (AGENCY) IN ANSWERING THE ALLEGATIONS TO ADVISE THE COMMISSIONER (Agency Head) of any apparent violations or conditions that may warrant conciliation. TO SERVE AS OFFICIAL LIAISON between SDHR and the AGENCY 26 Initial Meeting with the Complainant 27 The Role of the Investigator Objectivity in investigating discrimination complaints is critical to the credibility of the outcome of the investigation to be charged with discrimination is often as humiliating as being subjected to discrimination Purpose of an investigation is to provide for an unbiased review of the facts relevant to the complaint and necessary for its resolution Courteous and sensitive conduct by the investigator of a complaint will not only enhance the probability of resolution, but will also elicit cooperation from the parties involved Your role is not to judge, but to determine whether or not a particular action was consistent with Equal Employment Opportunity mandates and regulations and agency Affirmative Action policy 28 Meeting with the Complainant The purpose of the initial meeting is to establish the details of the discrimination complaint and to aid the complainant in properly filling out the complaint form. develop a checklist of information to be provided to and information to be received from each complainant 29 Complaint Intake Checklist Information to be Provided to the Complainant The complainant must be informed of his/her right to file with the New York State Division of Human rights, the Equal Employment Opportunity Commission or the Courts They must file within one year of the time that the alleged discrimination took place. The filing of a complaint with the Affirmative Action Office does not inhibit the complainant from filing with SDHR or EEOC Retaliation by the Agency for filing a complaint is prohibited by law 30 Complaint Intake Checklist Information to be Received from the Complainant Name, job title, address, phone number and work location of complainant Name of supervisor and his/her title Complainant’s title and appointment status at the time of incident Name and title of person(s) alleged to have committed a discriminatory act(s) (respondent) Complainant’s perception of the event(s) 31 Complaint Intake Checklist Description of alleged act of unlawful discrimination. Examples: What job was denied? What promotion was denied? What position was employee terminated from? What was done that constituted sexual harassment? On what basis was the alleged act of discrimination? (e.g. race, age, sex, sexual harassment, disability, etc.) What specific statements were made or actions taken that are discriminatory? (e.g., previous discriminatory remarks made by respondent, other persons turned down or terminated under similar circumstances, person hired was no more qualified, behavior constituting sexual harassment). Any relevant facts related to the decision such as follow up discussions complainant may have had with respondent or situations that may have occurred prior to the incident. 32 Complaint Intake Checklist Date or dates of alleged unlawful act of discrimination or dates between which act is alleged to have occurred. A list of supportive witnesses and documents. The terms of conciliation agreeable to the complainant. (What remedies are sought?) Whether or not the complaint has been taken before any other grievance board, administrative agency or court. If so, where was it taken and what is the status of the investigation or action? The complainant should be informed what is the time for completing the investigation and that (s)he will be informed of any unexpected delay in meeting this time frame. 33 Initial Determinations Jurisdiction and Validity If true, Is the allegation an act of discrimination? 34 Discrimination in Employment Failure or refusal to hire, promote or train any individual or otherwise treat the individual equally with respect to compensation, terms, conditions or privileges of employment on the basis of: race, color, national origin, creed, age, sex, sexual harassment, sexual orientation, marital status, religion, mental or physical disabilities, arrest record, criminal conviction or Vietnam Era Veteran status To limit, segregate or classify individuals in such a way as to deprive or tend to deprive an individual of employment opportunities on the basis of: race, color, national origin, creed, age, sex, sexual harassment, sexual orientation, marital status, religion, mental or physical disabilities, arrest record, criminal conviction or Vietnam Era Veteran status 35 Discrimination in Programs or Services Failure to assure all persons an equal opportunity to participate in programs and activities without discrimination or segregation. Failure to assure services or other benefits to individuals are not different or provided in a different manner from that provided to others. Failure to assure individuals are not treated differently in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service. Failure to assure, when determining types of services, that different criteria or methods of administration are not utilized which has the effect of subjecting individuals to discrimination or has the effect of defeating or substantially impairing accomplishment of the objective of the program on the basis of race, color and national origin. 36 Applies to all employment activities including: Hiring Terms Demotion Layoff Benefits Promotion/transfer Firing Evaluation rating Training conditions or privileges of employment 37 Determining Jurisdiction/Definition of Employment Discrimination To be a complaint of discrimination, the complainant must feel that the action was based on his/her race, color, religion, sex, sexual orientation, disability, age, marital status, conviction record, veterans status, national origin. Sexual harassment is considered a form of sex discrimination Discrimination based on an individual’s sexual orientation is also prohibited in New York State (not necessarily federally) 38 Is the Complaint a Valid Discrimination Complaint? Do you have an actual complaint? Is there an identifiable incident or pattern of incidents? Are they related to race, color, religion, sex, sexual orientation, disability, age, marital status, conviction record, veterans status, national origin? Was the complainant personally aggrieved? Are there other circumstances, evidence, or knowledge that lends support to the complainant? 39 IF YES Draft a letter to the complainant acknowledging receipt of the complaint and of the timetables for complaint process Create an initial case file and place copies of all correspondence in the office complaint file Internal information process – varies by agency AAO may inform the Commissioner (Agency Head) and the appropriate Deputy Commissioner 40 IF NO Draft a letter to the complainant informing him/her that the complaint does not come under the responsibilities of the Affirmative Action Office and advising him/her of appropriate alternatives (union, labor relations, etc.) Create an initial case file and place copies of all correspondence in your office complaint file (you may see this again…) Internal information process – varies by agency AAO may provide information to another office, if appropriate 41 Simultaneous Complaints/Grievances There are occasions when an employment action can lead to a discrimination complaint and a contract grievance being filed at the same time. One way of addressing this situation is... To meet with the Labor Relations person to define which issues each office will be looking into; With the concurrence of the manager over the office in which the aggrieved action took place, arrange for separate visits with the parties to conduct your respective procedures To agree to discuss each office’s finding to insure consistency of information gathered and to develop a complete view of the events. 42 Formal Discrimination Complaint Procedure 43 Formal Procedure The substance of the investigation will remain confidential. No party or staff member shall disclose the results of the investigation or parts thereof except when necessary to assist in the resolution of the complaint. The Affirmative Action Officer will inform all charged parties of the factual allegations relevant to him/her and give them an opportunity to respond to charges and findings. 44 The Process Any person with a complaint of discrimination should contact the Affirmative Action Officer and a discrimination complaint form will be provided. The written complaint should be made within a specified number of working days of the occurrence of the event which gave rise to the complaint. This should be clearly identified in the Agency guidelines. If the deadline is missed because of circumstances beyond the complainant’s control, the Affirmative Action Officer will make the determination as to the reasonableness of requests and may extend the period to file. 45 The Affirmative Action Officer should advise the complainant; explain the internal procedure and other options available to the individual including time limitations for filing complaints with State or Federal compliance agencies, and assist in completing the complaint form. The Affirmative Action Officer should interview the complainant and evaluate relevant documents. 46 The Affirmative Action Officer or designee should interview witnesses and further investigate the situation. At each opportunity, the Affirmative Action Officer should seek conciliation or an informal settlement that is satisfactory to the parties concerned. The Affirmative Action Officer is generally responsible for investigating the feasibility and legality of any remedies that are proposed with the Agency Counsel and Employee Relations Office as it appears necessary. When the investigation is completed, the Affirmative Action Officer should prepare a written report including recommendations for the Commissioner. 47 The Commissioner should issue/approve the final decision and recommendations in writing to the parties concerned. The Commissioner’s decision is final. If the complainant is not satisfied with the Agency’s attempts to resolve the problem, the complainant may seek remedy through external sources. At any point in the procedure, the complainant may withdraw the charge. 48 Retaliation Any person who participates in the complaint procedure may do so without fear of retaliation. Executive Management must set the standard in this area: Administrative action should be taken against an employee who attempts to retaliate against any individual who has filed a discrimination complaint or participated in a discrimination investigation. 49 Investigation Techniques and Processes 50 Investigation Process An investigation is the collection of information to describe and explain an event or series of events. In this definition distinguish between DESCRIPTION and EXPLANATION to the extent that each represents a different level of understanding about an incident. 51 Facts Information is a term we will use synonymously with the word “fact”. The vast majority of the information we collect will be facts gathered on the basis of individuals’ sensory perceptions: sight, hearing, smell, taste and feel. From an investigator’s point of view, there can be no other means of knowing. 52 Evidence Evidence is any information collected in the course of an investigation which has the potential to assist in describing and explaining the incident under scrutiny. Evidence which has such potential is considered relevant, even though it may prove in any particular instance to be unimportant. Irrelevant information is that which, even if true, would still not have the potential to assist in describing or explaining an incident. 53 Truth Ultimately there is no intrinsic validity —— no obvious truth —— to any set of conclusions which may be asserted by an investigator. Assuming that the conclusions have been properly distilled from the evidence gathered, the final question when reviewing one’s own work is whether the evidence was gathered properly and to what conclusions it leads. In other words, IT IS THE WAY IN WHICH WE GATHER THE EVIDENCE WHICH WILL IN LARGE DEGREE DETERMINE ITS VALIDITY. 54 Threshold Issues The purpose of an investigation is to describe and explain an event. An investigator collects relevant facts (or information) in order to accomplish this purpose. Evidence is those relevant facts which would be used in a hearing to prove if the alleged action occurred and try to determine why it occurred. Evidence can be divided into two types: direct and circumstantial. Evidence emerges in one of four forms: testimonial, documentary, physical, and demonstrative. The manner in which evidence is collected will affect the degree to which people accept it as true. 55 Types of Investigation Criminal the reconstruction of a violation of criminal law in order to identify and locate the perpetrator and gather evidence to convict him. Labor Relations the formal, thorough examination and evaluation of all facts relevant to an Allegation of Misconduct to determine if Misconduct occurred and to assess its extent, gravity, and consequences. Discrimination thorough examination and evaluation of all facts conducted, in such a way as to maintain confidentiality to the extent practicable under the circumstances, to determine whether inappropriate conduct has occurred reaching the level of discrimination. 56 Organizing and Conducting An Investigation 57 Organization The way in which an investigation is organized can be an important factor in its success. Organization means not just the clear identification of responsibility and accountability, but also the speed with which the various actors assume their roles. When we talk about speed, we do not mean that every piece of the investigation must be hurried to conclusion; we mean that without a prompt response to a reported incident or event, the investigation will result in a series of unanswered or unanswerable questions which might not otherwise emerge. Finally, the organization of the investigation also includes consideration of the order in which the parts of the investigation occur. 58 Investigation Organizational Issues For a variety of reasons, evidence of all sorts has a very volatile “half—life”. Failure to begin investigation of an incident immediately creates increasing possibilities that evidence will disappear. Agencies should plan the manner in which investigations will be conducted in order to save time when an incident is reported. In planning its mode of response, each agency must take a number of factors into account, including its structure, size, personnel, and the nature of the issue being investigated and the location of its facilities. In addition to speed as a goal in structuring an investigation, the objectivity —— including the perceived objectivity —— of an investigator is critical. 59 Organizational Issues Generally investigators collect physical evidence, if any, before conducting witness interviews. A thorough review of the documentary evidence will usually take place after the interviews. Investigators should interview individuals associated with a case in the following order: the person making the report; the victim; witnesses; the target. If an incident is also a possible crime, the matter should be reported to the police. If the police indicate that they intend to conduct the investigation, the agency investigator should insure that the scene and documentary evidence are preserved, and that all witnesses are separated —— if possible —— and remain at work. 60 Life of Evidence Evidence which might otherwise be available to an investigator in seeking a valid conclusion can be lost when an investigation is delayed. In some cases the loss is the result of inadvertent causes, in others the result of deliberate manipulation. Delay can only increase the number of problems associated with the evaluation of conflicting testimonial evidence in any case. 61 Testimonial Evidence For many types of investigations, the most common type of evidence which will be available and important to the investigator is testimonial evidence: information given primarily by virtue of one’s discussions with witnesses to an event or others who can provide relevant data. In many cases the inability to identify witnesses or competently interview them can be fatal to the investigation’s purpose. 62 Identifying Witnesses The initial problem facing any investigator will be the identification of those individuals from whom the investigator will be able to elicit evidence about the case. Not all witnesses will be able to provide direct evidence about an event. Circumstantial evidence may prove critical to drawing a conclusion when the investigation ends, so do not be hesitant to interview those who can provide such information. Generally, the nature of the incident or event will determine which type of witness will be critical. 63 Preparing for the Interview Before speaking with any witness, including the victim, take a few moments to outline the types of issues you wish to discuss during the interview. You need not write out the question verbatim, but only list the areas which, based on what you know to that point, you believe will be important to discuss. Keep in mind that you should not be bound to that list, for the witness may be in a position to help you in ways which you will not always be able to imagine in advance. 64 Conducting the Interview The failure to provide for privacy will then make it less likely that the witness will be willing to respond with a relevant message. After listening to the witness’ recollections, it is best that the interviewer then begin a closer examination of the person’s memory. In addition the interviewer asks appropriate follow—up questions. Failure to be as complete in your examination of a witness can result in the loss of information, particularly in a case where the early identification of eye—witnesses can be critically important. 65 Interviewing Uncooperative Witnesses and Targets In many cases the individual being interviewed will behave in uncooperative ways which will likely disrupt the possibility of a successful interview. A successful interview results in an accurate account of what the witness knows about the subject of the investigation. All state employees, whether management or rank— and—file, have an obligation to respond honestly to all questions asked during an interview as long as the questions asked regard job duties, actions on the job, or are job—related. Even targets of an investigation as defined in the collective bargaining agreements are obliged to give an honest account of their activities even where incriminating. Failure to participate in an investigation can result in discipline against the person whose behavior is deemed disruptive. 66 Interviewing A Target Although a properly appointed investigator can require state employees to participate in a variety of ways during an investigation, including submission to interviews, employees who are identified as “targets” of the investigation must first be offered the right to be represented by their union representative if information gathered may play a role in future disciplinary action. Failure to offer this right appropriately can result in considerable damage to the investigation. Conducting a discrimination investigation is not an employee relations “interrogation.” Once Employee Relations is involved, then the type of investigation has changed. 67 Interviewing Complications Never promise a reluctant witness anonymity if he or she at least gives information “off the record”. As far as your investigation as a state employee is concerned, all information is “on the record”. An interviewer should always be prepared with a box of tissues and an extra dose of patience in the event that a witness cries. Do not permit the interview to end because of the crying. Permit the witness ample time to recompose him or herself and then continue. Never make a deal: testimony for immunity. Regardless of what we read of the criminal justice plea bargaining system, a AAO investigator’s role does not include such negotiations. 68 Key Issues in Interviewing Plan your interview before you meet with the witness. Conduct the interview in a private place. Do not conduct the interview when you are in a hurry. If the person with whom you speak is the target of the investigation, he or she is entitled to a union representative (or private counsel) during the interview. When you begin the interview, be clear about your purpose. At the outset, give the employee an opportunity to speak in his or her own words about what he or she knows. Whenever possible, begin questions of “who”, “what”, “where”, “why”, “when” and “how”. Do not ask leading questions, vague questions or double questions. Do not take notes until you are ready to take the witness’ statement. Always speak in a calm voice, without sarcasm or anger. Avoid giving the witness the impression that you believe or disbelieve what he or she has told you. 69 Documentary Evidence / Taking Statements Agency investigators ordinarily become involved with two types of documentary evidence: statements from witnesses, which the investigators themselves use as a means of preserving the witness’ information, and “business records” in which other agency personnel have recorded a variety of data for use should anyone ever have to “ask the files” a question, sometimes long after the information is recorded. 70 Taking Statements Never take a statement from an individual until the person has been interviewed. Often agency investigators arrive on the scene and immediately ask everyone to send him or her statement, believing the individual’s written version an appropriate place to begin an investigation. most individuals who are asked to prepare a statement never provide the quality and quantity of information available during an interview. Circumstantial information is almost impossible without an interview Without the opportunity to discuss the matter with the witness, the witness who does not want to cooperate may more freely be vague or, in some cases, be more likely to lie than when having to interact face—to—face with the investigator. After the interview is completed, you must still remain with the witness during the preparation of the statement. This will insure that the relevant information you discussed during the interview will actually appear in the statement. 71 The Statement Ordinarily investigators use one of two methods in recording the witness’ statement. The most common method requires the investigator to go back over the witness’ story, with the investigator writing his or her words, as might a stenographer. Alternatively, the interviewer may engage in the same process with the witness, but ask the witness to write down each sentence as they proceed. The purpose of taking a statement is to put in writing the perceptions of the witness, in the WITNESS’ own words. Therefore, regardless of the actual procedures you use in taking statements, NEVER “edit” a witness’ statement for “correct” grammar. Your job is never to include in statement information you believe is correct, but which was not given by the witness, even if you have reason to believe the witness is lying. 72 Finalizing the Statement Before asking the witness to sign the statement, ask him or her to reread it and make any corrections. If there are changes to be made, ask the witness to initial and date any alterations in the text. Except for identifying information about time and place of the interview and similar information, the investigator should make no marks on the original copy of the statement. The witness should sign and date each page of a multiple page statement. 73 Collecting Business Records Business records are documents which are kept by agencies in the ordinary course of business. Some are for personnel purposes, such as schedules, attendance records and leave requests. Others are related to the agencies’ mission, such as cleaning schedules, preventive maintenance records, and service or work reports. Email and electronic records. 74 Securing Records Records must be secured immediately to prevent tampering or the suspicion of tampering. In some cases the records may be removed from their ordinary location. they should be photocopied immediately in order to show their contents at that point in time, since there may be legitimate need for some official to use the documents after the investigation begins but before the materials might be needed for a hearing. 75 Tampering When reviewing documents, always look for obvious signs of tampering: use of different writing implements different color ink different handwriting changes in the original entries margin notes different styles of notation If discrepancies exist, you will need to deal with that issue as well. If you need to make notations about a document, do not write on the original, nor on at least one photocopy made when the documents are first secured. Your markings will only confuse what was originally on the document if it is ever to be used as evidence. 76 Summary Never take a statement from an individual until you have first interviewed him or her. Regardless of the actual procedure you use in taking statements, never “edit” a witness’ statement for “correct” grammar or syntax. You should always be present when taking a statement from a witness. You may take the statement in one of two ways: you may review a witness’ story with him or her, writing his or her words as you progress; or, You may review the witness’ story with him or her, letting the witness write his or her words as you progress. Before asking a witness to sign the statement, ask him or her to reread it and make necessary corrections. If a witness makes any changes on a document, including cross outs or margin notes, those changes should be initialed and dated by the witness. Every statement should also include the following identifying information: when taken, where taken, by whom taken, the name of the witness, the 77 title of the witness (if a state employee) and the signature of the interviewer. Physical And Demonstrative Evidence Physical evidence is any object arrangement of objects substance condition of any person’s body which has the potential for describing what occurred or explaining what occurred All physical evidence should be collected and/or preserved as early in the investigation as possible. Failure to begin this process early will result in the loss of physical evidence and/or raise questions about the validity of what is collected. Photographs of a scene may be necessary to establish the circumstances of an event. Floor plans, space maps, etc. give a physical representation of a site. 78 Physical Evidence - Issues The location at which an incident occurs could be important in determining what occurred. Investigators should take pictures and draw diagrams of these locations. In order to insure the reliability of the evidence available at the scene, someone should secure it in a manner which will prevent other persons from entering until the investigator has finished his or her work. Any evidence collected in an investigation must be secured in a manner which will account for its whereabouts until it may be needed for a hearing. In making evidence secure in this manner, the investigator has created a “chain of custody”. 79 Drawing Conclusions and Reporting Investigative Findings Evaluation and Writing 80 Evaluating Evidence Do not attempt to draw conclusions about what happened and why until you have collected and evaluated all relevant evidence. Identify each piece of direct evidence you have collected. Direct evidence is the most powerful in explaining what occurred, although, it is rare that all of the evidence will be consistent. Make a list of all circumstantial evidence collected. circumstantial evidence can help us understand why the event occurred. can take us further in helping to resolve discrepancies in conflicting stories containing direct evidence. 81 Writing Investigative Reports A description of the manner in which you became involved in the case. A brief description of the initial report you received. A description of the investigative procedure you used. A summary of the evidence you gathered. Your conclusions about what occurred. Your assessment on whether this meets the standard of discrimination or harassment. Your recommendations for corrective action. 82 Final Report After conducting most thorough investigations, you will need to write your findings in report form. Your report should be written in a fair and objective manner. It is not a brief designed to prove someone guilty or innocent. Write in clear and concise English, avoiding jargon wherever possible. Correct your draft for spelling and grammatical errors. Do not use sarcasm or include other flippant remarks. 83 Possible Outcomes The investigation reveals that the event(s) took place and that it rises to the level of discrimination and a violation of law or policy. The investigation reveals that the event(s) took place but does not rise to the level of a violation of law or policy. The investigation reveals that the event(s) did not occur as the complainant had alleged and therefore the available evidence fails to support the allegation. The investigation reveals that there is insufficient evidence to determine the validity of the allegation. 84 Burden of Proof – AAO investigations Air of Reality can be successful if it is assumed that all the claimed facts are to be true Balance of Probabilities - "preponderance of evidence" there is greater than 50% chance that the proposition is true Clear and Convincing Evidence it is substantially more likely than not that the thing is in fact true (around 75% certain) Beyond a Reasonable Doubt there is no "reasonable doubt" in the mind of a reasonable person that the defendant is guilty (such as 90% certain) 85 AAO investigations "ei incumbit probatio qui dicit, non que negat" (the burden of proof rests on who asserts, not on who denies) "burden of proof" requires the complainant to convince the reviewer of fact of the complainant's entitlement to the relief they seek This means that the complainant must prove each element of the claim, or cause of action 86 Corrective Action Final Report is provided to the Agency Head including corrective action steps. Possibility of disciplinary action Other individual corrective measures Worksite corrective measures Systems corrections (how we do things) Worksite corrections (where we do things) 87 Implementation Agency Head make a decision on the corrective action Senior Managers and Administrative offices carry out the Agency Head’s directives. AAO should ensure that the Agency Head’s corrective action is implemented completely. Depending upon agency procedures, notification is provided to all parties indicating the conclusion of the investigation and the case. 88 Documentation Ensure that each complaint has its own case file Includes all case documents, interviews, documentary evidence, photographs, etc. Includes report, implementation requirements and follow-up (if necessary) Is discrete, from any other case, and kept confidential May provide evidence during arbitration or litigation 89 Records Retention NYS Records Retention schedule 90215 – AAO Grievance and Complaint Files 90357 – Employee Relations Minimum - Destroy 3 years after final resolution OAG recommends retention at least 3 months after the minimum Grievance Case Records Minimum – Destroy 10 years after final resolution 90358 – Employee Relations Disciplinary Case Records Minimum – Destroy 10 years after final resolution 90 Integrity – the final word The integrity of the investigatory process will be jeopardized if the investigator is perceived (rightly or wrongly) as partial or sympathetic to one view or another. In some situations, the conclusion of an internal investigation and the action it took based on the investigation will be questioned either as a “whitewash” or as a pretext for firing the individual unjustly. 91 So Ends the Investigation Process Are you ready for an appeal? 92