Finding the Facts - Disciplinary and Harassment Investigation

(1) Under Title 5, a respondent is not entitled to a copy of the complaint itself (information contained in the complaint should be provided to the respondent as necessary to provide sufficient notice of and fully investigate the allegation(s)); Title 5 does not require that the respondent be advised about the outcome of the investigation and the basis for the complaint determination (OCR has advised that providing this information is permissible); After the administrative determination is made, respondents are not entitled to add any additional information for local board to review (If a respondent wishes to file a written response, he or she may do so during the initial investigation and this information can be part of the investigation report.); and On May 16, 2016, the CCCO issued Legal Opinion 16-03 with respect to Student and Employment Discrimination Complaint and Procedures. (See Appendix G). We provide Legal Opinion 16-03 because it provides a good overview of the State Chancellor’s expectations with regard to investigating formal harassment and discrimination complaints. The Opinion largely tracks your obligations under Title 5, section 59300 et seq. However, we flag that pursuant to the regulations, the Administrative Determination that you are required to provide to complainants must include either the investigation report or a summary of the investigation. The Legal Opinion states that districts “should” attach the investigation report. As Chancellor’s opinions are not legally controlling, we read this “should” as permissive. Districts may provide only a summary of the report. 2. D OCUMENT THE C OMPLAINT If the investigation is triggered by a complaint, it should be thoroughly documented. A complaint can either be made verbally or in writing. When a complaint is made verbally, a written summary of the allegations should be made immediately and signed by the complainant, or the complainant should be asked to place his/her complaint in writing. If the complainant refuses to sign a written statement of the allegations or to submit a written complaint, a written record of the complaint should still be made with a notation of the complainant’s reluctance to place his/her complaint in writing. Having a written record of the complaint will provide accuracy and clarity of the charges being investigated and will guide the investigator in conducting the investigation. The investigator should make sure he/she fully understands the allegations and issues presented by the complainant, as well as the relevant policies. An effective tool is for the investigator to write down his/her initial analysis of the complaint. (2) (3) (4) Under Title 5, respondents do not have the right to appeal an administrative determination.

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 16