Educator Sexual Misconduct Pt 2

Educator Sexual Misconduct and Harassment: Tandem investigations with differing intent Part 2 of a 2 part Newsletter Series

By Mary Jo McGrath, Attorney at Law

You’ve heard a rumor or have received a complaint about grooming behaviors by an educator, or sexualized activity between an educator and a student. You’ve activated your Response Team, called Child Protective Services, and notified law enforcement. What happens next? Your district must conduct an administrative investigation into the allegations. That investigation will be part of the duties of your Emergency Response Team. It’s vital that they are trained to do it properly.

Administrative vs. Criminal Investigations
An administrative investigation is conducted parallel to a criminal investigation that is run by the police. There is a very real and important difference between the two. An administrative investigation is conducted to determine whether an employee has violated school district policies, and is part of providing your employee with his or her due process rights. The investigation is also required under Title IX and the regulations enforced by the Office for Civil Rights, U.S. Department of Education.

Based upon the information gathered during the administrative investigation, your district will make a determination whether sexual harassment or abuse has taken place and whether disciplinary action is appropriate. The employee may be placed on administrative leave during the investigation.

A criminal investigation is conducted by the police to determine whether a law has been broken, and may result in formal criminal charges being lodged against the suspected perpetrator. The result may be jail time.

In both scenarios, investigators will identify and interview witnesses, as well as the complainant/alleged victim and the alleged perpetrator. Questions of the same nature may be asked during each investigation; therefore the best practice is to have an interagency agreement that sets out the protocol for a joint investigation. It is best to have only one set of interviews with the information derived shared among the agencies on a need-to-know basis. Preplanning is needed so that the questions address the differing needs of both investigating agencies.

Individuals responsible for conducting interviews for administrative investigations must be as thoroughly trained as police investigators. This work requires a specific skill set that differs from any other interviewing situation. Be sure your Response Team has undergone comprehensive investigation and interview training.

Administrative Investigation Tips

  1. Remember, you are not the police and you cannot compel a witness to make a statement. Your task is to gain the witnesses’ trust, assure them that there will be no retribution from anyone as a result of their statements, and to accurately capture the details of their statement.
  2. Your employee may have the right to union representation during the interview. Inform the person of this right and arrange a time when the union representative is available.
  3. Your employees must submit to an interview, if they are given a directive to do so. Their refusal constitutes insubordination and is actionable.
  4. If you record any interview, you must tape the subject’s consent to being recorded.
  5. Be sensitive to gender issues. Complainants may be uncomfortable discussing their situations with someone of the same or opposite sex. Interview teams consisting of male and female interviewers should be established.
  6. The two investigators should share their information and work closely together. Only one team member should ask questions during the interview; the other should take notes and observe.
  7. Accept no information anonymously, or “off the record.” You must be able to source everything gathered in the administrative investigation.

Your district’s investigation need only determine whether policy has been violated. That is a much lower threshold than determining whether a crime has been committed. Your investigation may return a finding of sexual harassment or misconduct and form the basis of a disciplinary action up to and including dismissal, regardless of whether the police investigation results in criminal charges.

Our next installment will explain how to make your district a difficult target for sexual predators.

McGrath Training Systems provides a complete curriculum on recognizing the early warning signs and investigating sexual harassment and misconduct in schools. For more information, visit the Sexual Abuse and Misconduct section of our website, or call 800/733-1638.

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