Finding the Facts - Disciplinary and Harassment Investigation

established to prove unlawful harassment are discussed below in Section 6, Evaluating the Facts. This is for general guidance and understanding only. As discussed below, investigators should not make determinations as to whether the law has been violated. Also an district’s policy may be stricter than the law and prohibit conduct that would not rise to the level of a violation of federal and/or state law. Accordingly, workplace misconduct that violates an district’s policy may not necessarily violate the laws prohibiting harassment. For investigations involving allegations of an academic employee’s misconduct, in particular, off-duty conduct, the investigator should be aware of the factors commonly utilized to evaluate the nexus between an employee’s conduct and his or her performance. These factors are sometimes referred to as the “ Morrison ” factors. In Morrison v. State Board of Education , 80 the court found that there was insufficient evidence to support the revocation of a teacher’s certification for immoral conduct where the teacher had engaged in a brief homosexual relationship in his own home with another adult during off-duty hours and no criminal activity was charged. In reaching this conclusion, the court considered the following factors:

 The likelihood that the conduct adversely affected students or fellow teachers;

 The degree of such adversity anticipated;

 The proximity or remoteness in time of conduct;

 The type of teaching certificate held by the party involved;

 The extenuating or aggravating circumstances, if any, surrounding the conduct;

 The likelihood of the recurrence of the questioned conduct; and

 The extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.

An investigator’s knowledge of these Morrison factors will guide the investigator in gathering facts and learning the true impact of an employee’s off-duty misconduct.

G ATHERING THE F ACTS

Section 6

In this section:

A. Create a Binder

B. Background Documents

C. Documentary and Physical Evidence

While these are the general components to gather the facts, depending on the circumstances, there may be other fact gathering steps that should be taken. For example, in many investigations it is important to view the location where the alleged events took place, examine the physical layout, the visibility of certain areas, or other relevant physical aspects.

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 32