Finding the Facts - Disciplinary and Harassment Investigation

attorney were informed on the morning of his scheduled interrogation about the nature of the investigation. After providing written and verbal admonitions for the interview, Ellins and his attorney were permitted to meet in private to discuss the specific charges. Ellins argued that he did not have a meaningful opportunity to consult with his attorney about the specific nature of the investigation. The Court of Appeal disagreed and held that while an officer should be notified of the nature of the investigation "reasonably prior to" the interrogation, the district can delay disclosure "if it has reason to believe that earlier disclosure would jeopardize the safety of any interested parties or the integrity of evidence under the officer's control." 94 In a 2012 Court of Appeals decision, the court held that an employee who retained an attorney to defend against a law enforcement investigation was not entitled to a defense or indemnification. 95 The Government Claims Act requires a public entity to pay for the defense of any civil action or proceeding brought against an employee for acts in the scope of his or her employment. The employer was not required to do so here because there was no civil action or proceeding brought against the employee. The terms "action" and "proceeding" do not include an investigation. iv. Admonition Not to Discuss Investigation with Co-Workers To safeguard the integrity of the investigatory process, it was common to direct employees who are interviewed not to discuss with others, including with any other employees: : This type of blanket directive is problematic when issued to employees and is unlawful.. As discussed below, there are specific circumstances that must be determined on a case-by-case basis where employers may use a confidentiality directive to employees. An district may require employees to maintain confidentiality during an investigation of either employee or student misconduct if the district can establish in an individual investigation that confidentiality is necessary to protect a witness, prevent the destruction of evidence, preserve testimony, prevent a cover-up, or further another legitimate business interest. Also when giving the directive, the district should articulate to the employee the general reason for the confidentiality directives, which should be tailored to the applicable reasons in each individual investigation. There are various cases that have set forth these legal requirements related to confidentiality directives. In a National Labor Relations Board (“NLRB”) decision, the NLRB found that a private employer violates the National Labor Relations Act (“NLRA”) by asking an employee who was the subject of an internal investigation and witnesses to refrain from discussing the matter while the employer conducted the investigation. 96 The employer, Boeing Company, provided notice to all employees who were interviewed as part of an internal investigation by human resources, that the employees were “directed not to discuss this case with any Boeing employee other than the company employees who are investigating this issue or your union representative, if applicable. Doing so could impede the investigation and/or divulge confidential information to other employees.” Boeing argued the confidentiality requirement in  The fact that they are being interviewed,  The existence of an investigation, or  The questions asked or answers provided during the interview process.

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