by Tami Tanoue, CIRSA General Counsel/Claims Manager¹

It’s a given that a police department depends on the skills of its investigators to solve crimes, follow up on complaints, and otherwise fulfill the department’s mission. But investigative skills are important in every department, not just the police department. This article focuses on the use of outside investigators in human resources-related internal investigations.

What’s The Role Of Investigations In My Department?

It’s likely that your personnel manual includes a process for receiving, investigating, and following up on employee complaints. Policies prohibiting sexual (and other protected category) harassment, anti-discrimination policies, anti-retaliation policies and policies prohibiting bullying and workplace violence are among those that commonly include such a complaint mechanism. These policies serve several important purposes:

• They apprise employees of certain unacceptable behaviors;
• They provide a way for accusations of unacceptable behaviors to be brought to management’s attention;
• They help ensure that appropriate consequences are imposed for verified accusations; and
• Properly implemented, they help shield the municipality from the liabilities associated with such behaviors.

Your City/Town Attorney can advise you on when an investigation is warranted under applicable laws or internal policies, and how to conduct the investigation.

Who Should Act As Investigator?

Municipalities that are fortunate enough to have a human resources (HR) department can usually rely on its HR professionals to fulfill the investigative function when a complaint is received. In other municipalities, that function may be fulfilled by a supervisor, a department head, or the Manager/Administrator.

In some circumstances, it’s possible that staff handling of an investigation may be inappropriate or inadvisable. For example, if a complaint is made against the Manager/Administrator, or one or more elected officials, then there may be no one in-house who can credibly handle the investigation. As another example, if a professional standards complaint is made by a police officer against the Chief and other high-level departmental personnel, it may be inappropriate for the complaint to be investigated using internal resources, when the investigator is supervised or reports to the accused and an assertion of bias could be made. Your City/Town Attorney can advise you about circumstances when it would be inappropriate to handle an investigation in-house.

So We Need An Outside Investigator

Let’s say you’ve received an HR complaint and, with the City/Town Attorney’s help, you’ve determined you need an outside investigator. Where do you turn?

The answer may depend in part on the nature of the complaint. A law enforcement-related complaint often requires expertise in police policies and procedures, and familiarity with the law enforcement environment. A complaint of sexual harassment may require expertise in harassment policies and applicable laws.

You may be fortunate to find free assistance. For example, a neighboring police department might be willing to lend you the services of its internal investigations unit. But free assistance can be difficult to find, and you can go to that well only so often before you wear out your welcome.

There are consultants and companies that can be engaged to fulfill the investigative function. But you need to choose very carefully. A poorly handled investigation can be worse than no investigation at all. At CIRSA, we have handled member claims where the investigation was either not helpful, or placed the member at greater risk than if no investigation had been done. Some considerations to keep in mind when engaging an outside investigator include:

• The investigator needs to have prior experience in HR or police investigations, as the circumstances warrant. You don’t want to be the municipality providing “on the job training” in this critical function.
• The investigator needs expertise in the subject matter of the investigation, as well as the work culture from which the complaint arose. There are unique and complex elements in the municipal environment. You may not want someone unfamiliar with the law enforcement culture, for instance, to do an investigation of a complaint within the police department.
• The investigator must be able to follow your instructions and applicable policies on the scope of the investigation and the manner of investigating, including any procedural or notice requirements that exist. You don’t want an investigator to freelance or delve into areas that are not part of the scope of the investigation.
• The investigator needs to be neutral and impartial, and perceived that way. Someone who’s affiliated with an organization that seems to have a partisan interest in one side or the other of the employer-employee relationship may not be perceived as neutral or impartial, even if he or she is.
• The investigator must have the skills to draw information from possibly reluctant or hostile interviewees. Excellent interviewing skills and a sound knowledge of interviewing techniques, are critical.
• The investigator must have excellent organizational, analytical, and writing skills, and the ability to make accurate findings of fact and pertinent conclusions. If you want recommendations in connection with the matter being investigated, the investigator needs to be willing to provide them.
• The investigator must be willing to stand behind his or her investigation and be willing to testify at a hearing or in court about the investigation. He or she must be a credible, articulate, and truthful witness if required to testify.
• And the investigator must be able to do all of the above without costing you an arm and a leg!

Questions To Ask Before Engaging An Outside Investigator

Will you be interviewing prospective investigators? Here are some questions you might consider asking:

• What is your hourly rate, and what expenses are charged separately?
• What is your experience doing HR or police-related investigations, as the circumstances warrant?
• Are you willing to discuss your draft findings and conclusions orally before providing them in writing? Are you willing to set your findings and conclusions in writing, and provide recommendations if requested? Are you willing to make definitive findings, rather than merely stating that a particular factual circumstance may be “more likely” or “less likely” to exist?
• What is your experience working with personnel policies and Title VII of the Civil Rights Act (concerning employment discrimination) or other Federal laws and counterpart state laws?
• Are you willing to testify at an administrative hearing concerning your investigation? To testify in court? What is your experience testifying in hearings or in court?
• Is your company or organization affiliated with employee or employer interests, or independent of such interests?

How Can CIRSA Help?

If you have an internal investigation situation that you think is likely to turn into a claim sooner or later, please contact us for help in assessing the situation. If it appears to us that pre-claim assistance would help ensure that the matter is handled properly, and reduce the likelihood or magnitude of a claim, the opening of a claim file may be appropriate at the pre-claim stage. By opening a claim file, you can obtain the assignment of an attorney from our defense counsel panel to provide you with intensive one-on-one assistance. If the attorney advises that an internal investigation using an outside investigator would be appropriate, the cost of the investigator will be charged to the claim. You would be responsible for the payment of the applicable deductible on the claim, but other costs would be borne by CIRSA.

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¹The assistance of Andy Nathan and Marni Nathan Kloster of the firm of Nathan, Bremer, Dumm & Myers in providing suggestions and reviewing a draft of this article is acknowledged with thanks.