Conducting Effective Internal Investigations

Module Four: Writing the Report and Post-Investigation Considerations

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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Key components of a report (recommended)
Style/audience/tone
Disclosure of the report
Best practices for document retention and use of the attorney-client privilege
Notifications
Final Decision
Post-Decision Considerations
Appeals
Consultation with In-House Counsel

Module Overview

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Key Components
Executive Summary
Allegations/Complaint
Procedural History
Witnesses
Evidence
Applicable Policies/Procedures (attach)

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Key Components
Evidentiary Standard (follow policy)
Information Considered During the Investigation
Summarized by witness
What did people report?
Undisputed Facts (can be resolved succinctly)

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Key Components
Factual Findings
Resolve KEY disputed facts
Resolve credibility issues
Show your work
Apply the correct standard of proof

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Key Components: Factual Findings
Put it together for the reader. Show your work.
Example:
I find, by a preponderance of the evidence that the door to the laboratory was left unlocked by the Respondent on October 12, 2016 at 6:03 p.m. This was confirmed by Witness A and Witness B, who observed Respondent leaving with both hands full of chemicals at that time. This was further confirmed by the access log. I did not find Respondent’s explanation that they have never left a door unlocked to be credible. Moreover, the hall camera corroborated that Respondent’s hands were full.

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Key Components
Conclusions (if that is your role)
Based on the factual findings, was there a policy violation?
Sanctions (if that is your role)
Based on the policy violation, what is the appropriate and consistent sanction?

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Tips When Drafting
Go back to your investigation plan.
Remember what you are investigating.
Look at the elements of each definition.
Render factual findings that pertain to the elements of each definition.
Do not make unnecessary factual findings.

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Key Components
Appeal Process
Describe
Note use of report in that process.
Appendix (policy, witness summaries (if required), photos, etc.)

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Style, Audience, & Tone
Write for someone who knows NOTHING about the parties, the issues and the situation.
No typos, spelling errors, assumptions, unexplained jargon.
Ultimately writing for a reader later in the process.

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Case Study Review
What are the allegations?
What are the undisputed facts?
Which ones are important?
What are the disputed facts?
Which ones are important?

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Disclosure of Report
Depends on policy, applicable law, etc.
Possibly redacted when disclosed. Not always!
Internal (as part of process)
External
Subpoena
Other legally required disclosure (state public records request)

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Document Retention
Follow your institution’s policy.
If the policy is silent, be consistent between investigators.
If you are the only investigator – be consistent with your own practice.
If you deviate, document your reasoning.

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Use of Attorney-Client Privilege
Covers communications sought in furtherance of legal advice.
Should be marked and maintained separately – not in the investigation file and thus accidentally produced.
Your attorney can’t make the decision for you, but they can help spot holes, ask questions, or advise on process.

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Notification
Importance of notifying the parties
How much information to provide?
Who else should be notified?
Any legally required notifications?

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Final Decision
What is the next step?
Does the report reach a conclusion?
Does it recommend sanctions/corrective action (if warranted)?
If not, who makes those decisions?
Avoid a delay in process
Who ensures the next steps occur promptly?

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Post-Decision Considerations
Who receives a copy of the report/decision?
Determining/implementing sanctions/corrective action/remedies
Continued vigilance to avoid/address retaliation

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Appeals
Check your policy or process
Notify of right to appeal
What are the grounds for appeal?
What is the standard for review?

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Appeals
Benefits of informal review even if no appeal rights
Who should conduct the informal review?
Notification of outcome

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Consulting With Legal Counsel
Understand their role
Typically do not advise on substance of investigation
May advise on procedure, notice and related issues

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Course Conclusion
Re-cap of Module 4
Where we’ve been
Road map for providing fair process

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Questions?

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Note
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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