Conducting Effective Internal Investigations
Module One: Planning the Investigation

Katherine M. Allen, Associate General Counsel, The Pennsylvania State University
Natasha Baker, Managing Attorney, Novus Law Firm, Inc.
Pamela Heatlie, Director of the Office for Institutional Equity, University of Michigan – Dearborn

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Purpose: providing guidance for best practices in conducting internal investigations. Any type of internal investigation.

Overview of Course

Overview of Course
Series of modules on the following topics:
Module One: Planning the Investigation
Module Two: Conducting the Investigation, Interviewing, and Information Gathering
Module Three: Reaching a Conclusion and Credibility Determinations
Module Four: Writing the Report and Post- Investigation Considerations

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Module Overview
Types of Investigations
Value of Good Investigative Practices Pre-investigation Considerations Choosing an Investigator Confidentiality v. Transparency
Receiving and Evaluating the Complaint Notice
Interim Measures
Developing an Investigative Strategy or Plan Public Relations Considerations

Types of Investigations
Employee Discrimination
Academic Integrity
Research Misconduct
Athletics Compliance
Tenured Faculty Discipline
Financial or Time Fraud
Student Conduct

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Types of Investigations
What is the subject matter?
Who is the respondent, if any?
What is the process?
oInstitutional policies and procedures oRegulatory or statutory process oLegal requirements

Types of Investigations
What is the purpose of the investigation?
oNeutral?
oPrivileged?

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Types of Investigations
What is the role of the investigator?
Fact-gathering?
Proposed findings?
Making a decision?
Recommended action?

Why Good Investigations Are Important
It’s about fair process for all institutions
Procedural due process for public institutions oProperty interest: notice and opportunity to be heard
oLiberty interest: name-clearing hearing
oPolicy determines how much process is due

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Why Good Investigations Are Important

Substantive due process: decision- making is not arbitrary or capricious

Judicial deference for internal administrative investigations

Good management

Pre-Investigation Considerations
Interim safety/preservation measures
oInterim leave/suspension oDocument retention oSequestration of evidence

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Pre-Investigation Considerations
Concurrent investigations oPolice involvement oGovernment investigator oRequired notifications

Choosing An Investigator
What type of case is it?
Consider actual or apparent conflicts of interest
Internal or external investigator?

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Choosing An Investigator
Are there “political” issues to consider?
Who are the parties?
What are the issues?
Review investigator’s background and training
Investigator’s credibility and the process is at stake

Confidentiality vs. Transparency
Tension between maintaining privacy and assuring fair process
Limits on absolute confidentiality

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Confidentiality vs. Transparency
Applicable policy and law
FERPA
Research misconduct
Employee discipline

Confidentiality vs. Transparency
Privilege/work product protections
Scope may be limited
Waiver possible
Public records
State-specific

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Investigative Steps
Receive/Evaluate Complaint
Initiate Investigation/Notification Letters
Develop Investigation Strategy
Conduct Interviews
Gather other Information
Write Investigation Report

Receive/Evaluate/Document Complaint
Written complaint vs. in person?

Determine what laws, policies, procedures/practices apply

Evaluate to determine if should be accepted

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Evaluate/Document Complaint
Harmani Case Study Issues:
Layoff
Harassment

Notice: Notify Respondent/Parties of Complaint
Method of notification
Verbally?
In writing?
Letter or email?

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Notice: Notify Respondent/Parties of Complaint
Information to include:
What to expect during the process.
Any available resources, e.g., counseling, health/mental health services, representation
Prohibition against retaliation
Timing – what rights are triggered once notification provided?
Any required disclosures?

Interim Measures
Purpose?
Who has authority to impose?
Types of circumstances that might warrant an interim employment/academic suspension?
For employment, with/without pay?
Process for implementing interim suspension? Due process considerations?

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Investigative Plan
Benefits of written plan:
Keep facts straight
Keep investigation on course
Fill in to become investigative report
Particularly helpful with complicated cases

Develop Investigative Plan
Frame allegations – identify definitions and standards of proof.
What evidence do you need and how will you get it?
Scope of investigation.

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1	2	3	4

Determine scope of investigation.

Develop key questions based on scope of investigation.

Identify possible witnesses and other sources of information.

Determine order of interviews

Public Relations Considerations
Likelihood of publicity – Harmani has hinted about talking with the press
Designated spokesperson?
Limitations on information that can be disclosed

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Investigation Plan – Key Questions
Was the conduct based on race, national origin, or other protected basis?

KEY QUESTIONS to
Inform Your Strategy Using the Harmani Case Study

Was the conduct unwelcome? Did R know/should’ve known?

Investigation Plan – Key Questions
3. Subjective: Was the conduct sufficiently serious to create a hostile, intimidating, or abusive environment for Complainant?
KEY QUESTIONS to
Inform Your Strategy Using the Harmani Case Study

4. Objective: Was it reasonable for Complainant to believe that the conduct created a hostile, intimidating, or abusive environment?

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Investigative Plan - Standards
What is the burden of proof?
Preponderance?
Clear and convincing?
Who bears the burden of proof?
On institution?
On parties?

Investigative Plan – Harmani – Layoff – Discrimination
Guiding document: East Coast University Policy on Discrimination and Harassment
Basis for the alleged policy violation?
Elements of the definition?
Prima facie case – member of protected group, adverse action, others treated better?
Legitimate, nondiscriminatory reason?
Pretext?

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Investigative Plan – Harmani – Layoff – Retaliation
Guiding documents: East Coast University Policy on Discrimination and Harassment, FMLA Policy, any relevant policies re whistleblowing
Elements:
Protected activity
Adverse action
Causal connection
Legitimate nonretaliatory reason
Pretext

Investigative Plan – Harmani – Harassment
Guiding document: East Coast University Policy on Discrimination and Harassment
Unwelcome conduct
Based on (religion/sex?)
Severe, persistent, and/or pervasive
Subjective/objective

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Questions

Note
This training does not cover investigations conducted under the 2020 Title IX Regulations. Other NACUA courses cover those types of investigations.

The content of this presentation is to provide news and information on legal issues and all content is provided for informational purposes only and should not be considered legal advice.

The transmission of information in this presentation does not establish an attorney‐client relationship with the recipient. The recipient should not act on the information contained in this presentation without first consulting retained legal counsel.

	If you desire legal advice for a particular situation, you should consult an attorney.

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