An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

Further, the school should consider preparing public statements and talking points with legal counsel and/or a public relations firm. The school should only disclose facts regarding the investigation process, not the underlying substantive facts of the complaint – i.e., who is conducting the investigation and the timeframe for completion of the investigation. Disclosing factual details about an ongoing investigation may impair the investigation, may later be found to be incorrect and could lead to liability for defamation or loss of credibility, or could be used to argue that the school “rushed to judgment” or that the investigation was a “sham.” The public statement should emphasize the positive attributes of the school and reassure that the school acts in a safe, thoughtful, responsible, and fair manner. F. W HAT I F T HE S UBJECT M ATTER O F T HE I NVESTIGATION I MPLICATES P OSSIBLE C RIMINAL C ONDUCT IN A DDITION TO P OSSIBLE P OLICY V IOLATIONS ? Immediately upon learning of allegations that could result in criminal charges, the school should advise the local police or sheriff of the pending administrative investigation and make efforts to coordinate the criminal and administrative investigations. For example, employees who work with minors, or who have direct contact with them, are obligated to report known or reasonably suspected child abuse or neglect. (See the Mandated Reporting Chapter of this guide.) Generally, we recommend that criminal and administrative investigations be conducted on separate but parallel tracks. An employee or student has the right to assert his or her right to be free from self-incrimination under the Fifth Amendment to the United States Constitution during a criminal investigation. The school, however, may still ask employees and students questions that may incriminate them, and order the employee to answer questions during the administrative investigation under threat of discipline for insubordination. G. H AVE A G OOD G ENERAL K NOWLEDGE O F S CHOOL P OLICY R EGARDING T HE C ONDUCT A LLEGED Before an investigator can properly investigate the facts, he or she must be aware of the type of behavior which is prohibited by the school’s policy. For example, if the investigator is investigating a possible abuse of sick leave, he or she will have to know how the school’s policy defines abuse of leave in order to gather relevant facts. An investigator may fail to include this information in his or her report if he or she does not understand the relevant sections of school policy. The investigator, therefore, should review the school’s policy before he or she begins investigating the facts and should also clarify any questions about the school’s implementation of the policy during witness interviews.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 444