An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

choose an appropriate individual who is capable of conducting a prompt, fair, and thorough investigation. For a sample written report, please see the Compendium. LCW Practice Advisor Important: Consult with legal counsel before turning over the written report or any other materials gathered during the investigation. The school should evaluate whether to select an internal investigator (school employee), such as a head of school, , , human resource director, or another designated administrator, or an external investigator, which must be either an attorney acting in his or her capacity as an attorney or a licensed private investigator. The DFEH Workplace Harassment Guide confirms that external investigators must be licensed private investigators or attorneys acting in their capacity as an attorney. 1937 For purposes of accountability and continuity, it is important that one individual be in charge of the investigation without interference from others in the organization. The school should not transfer this responsibility to a different individual during the course of the investigation. The school must provide the investigator the necessary resources and access to information, documents, and potential witnesses to fulfill his or her responsibility to investigate promptly, fairly, and thoroughly. If the case involves student complaints or student witnesses, the school should choose an investigator who can be sensitive to student fears and concerns and who is skilled in interviewing children. This is especially true if young children are involved. If the charges are against a high ranking employee, involve harassment, discrimination or retaliation allegations, or other particularly sensitive issues, the school should strongly consider retaining an independent, outside investigator who is qualified to undertake this type of investigation. The decision of who should be selected as an investigator in each individual investigation is an important one and involves multiple considerations. 1. Q UALIFICATIONS , K NOWLEDGE , C REDIBILITY , R ANK A ND E XPERIENCE The DFEH requires “[i]mpartial and timely investigations by qualified personnel.” 1938 In general, if a school employee conducts the investigation, it is preferable to have an upper level school administrator who is higher ranking than those to be interviewed and who has established credibility within the school, conduct the investigation. However, a school can delegate authority to conduct an investigation to a lower ranking employee and a higher ranking employee can require employees to participate in an interview. In addition to the above, for harassment, discrimination, or retaliation investigations, the DFEH Workplace Harassment Guide identifies the qualifications, knowledge, and training internal and external investigators should have. Investigators should have knowledge of the laws and policies relating to harassment, investigative techniques related to questioning witnesses, documenting interviews, and analyzing information. The investigator should have sufficient communication skills to conduct interviews and deliver the findings in a written or verbal form. For more complex and serious allegations, it is important that the investigator have prior experiences conducting such investigations.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 436