An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

C. C ONFIDENTIALITY O F I NVESTIGATION R EPORT : H OW M UCH C AN O R S HOULD B E D ISCLOSED T O T HE C OMPLAINANT O R T HE A CCUSED ? The investigator’s written report should be maintained in confidence. A copy should only be given to the Head of School or other school administrators with a need to know. Under certain circumstances, it may be appropriate to give a copy to the Board Chair and/or Executive Committee, and in limited circumstances, it may be appropriate to give a copy to the full Board. The written report should not be given to the complainant, alleged wrongdoer, or any witness. There are though, certain circumstances where disclosure of the report may be appropriate or required by law, such as during litigation. The results of the investigation are in: an employee or student has engaged in inappropriate conduct. Based on a review of the investigator’s report, the school imposes discipline. The school sends a letter to the complainant thanking him or her for raising the complaint with the school and informing him or her that the investigation has concluded and that appropriate corrective action is being taken. How much of the investigation results and disciplinary action taken should be shared with the complainant? The answer to this question is: it depends on the circumstances, but typically not much. The accused enjoys constitutionally and statutorily protected privacy rights. The employee’s or student’s rights of confidentiality and privacy must be balanced against the school’s interest in disclosure. Typically, the complainant is entitled to be advised only as to whether the factual allegations have been sustained or not sustained (i.e., whether the investigator concludes by a preponderance of the evidence that the alleged conduct did or did not occur) and if the investigator is asked to make policy violation determinations, whether a policy violation occurred, or not, and if so, that appropriate corrective action has been taken. If the investigator was not asked to determine whether any policies were violated, the Head of School or other school administrator should make that determination based on the factual findings and notify the complainant, and if there was a policy violation, state that appropriate corrective action was taken. There may be certain circumstances in which a school may want to or should disclose additional information to the complainant. In those circumstances, the school should consult with legal counsel. It is also recommended that the school consult with legal counsel regarding the results of the investigation, the communication to the complainant, whether any policies were violated, and if so the type of corrective action that should be taken and any legal or risk management issues related to the results of the investigation. 2. H OW M UCH T O T ELL T HE A CCUSED How much information to disclose to the accused will depend on the findings. If the investigator does not sustain the allegations in the complaint, the accused may simply be advised of the findings. However, if the allegations are sustained, a determination is made that the accused 1. H OW M UCH D O Y OU T ELL T HE C OMPLAINANT ? a. Competing Interests: Remedial Action v. Privacy

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