An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

school should articulate to the employee the general reason for the confidentiality directives, which should be tailored to the applicable reasons in each individual investigation. See the Compendium. iii. Admonition That Refusal To Cooperate Is Insubordination And May Subject The Employee To Discipline Employees do not have a right to refuse to answer questions. Such refusal can be grounds for insubordination and may result in discipline up to and including discharge. Additionally, employees may be terminated for dishonesty during an investigation. 1958 A student’s refusal to be interviewed may violate the school’s student conduct policies and may also be a basis for discipline. For a sample notice to employees of an investigative interview, a sample statement for use at the beginning of an administrative interview and a sample statement for use in the event that an employee refuses to respond to questions or submit to an investigative interview, please see the Compendium. The Compendium contains a statement that can be read if an employee refuses to respond to questions or to submit to an interview. The investigator should also determine strategies for handling witnesses who are not school employees or students, and therefore, are not required to cooperate. (a) Insubordination Insubordination exists when an employee refuses to obey an order which a superior is entitled to give and to have the employee obey. For an employee to be insubordinate, the following elements must be present:  An order must be given;  The order must be lawful and not cause an unreasonable safety risk;  The order must be clearly communicated to the employee;  The order must be communicated by someone with the proper authority to give the order;  The employee must have understood the order; and  The employee must have intentionally or willfully refused to comply with the order. Because the order must be given by someone with the proper authority, the order must be given by either the employee’s supervisor or someone else in the chain of command with the proper authority. Outside investigators do not hold such authority. Therefore, if an outside investigator is conducting the interviews, someone from within the school holding the proper authority must give the order. This can be done through a pre-interview memorandum given to the employee(s) to be interviewed by the appropriate person.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 459