SECTION 11.20 CONDUCTING AND DOCUMENTING A DISCIPLINARY INVESTIGATION
New: 2/08
Most allegations of violations of work rules, policies, or
law never reach an arbitrator, outside agency or court. Management should, however, investigate each
allegation from the point of view that an outside party may review the
matter. In all cases, maintain
confidentiality to the extent possible, and do not communicate the existence or
nature of the complaint to those without a need to know.
1. Determine if the employee must be removed
from the current work assignment pending the completion of the
investigation. This will primarily be
due to safety concerns or to preserve evidence.
Actions may include:
a. Suspending the employee with pay pending the
completion of the investigation. DAS-HRE
subrule 60.2(1)a and the AFSCME collective bargaining agreement provide for
suspension with pay pending the completion of the investigation for up to twenty-one
(21) calendar days. The SPOC collective
bargaining agreement allows an employee to be suspended with pay pending the
outcome of the investigation. If the
employee is suspended with pay pending the outcome of the investigation,
management must restrict any information on the employee’s status to only those
who need to know.
b. Reassigning the employee to another work
assignment.
c. Temporarily assigning the employee to a
different supervisor.
2. Determine who should conduct the
investigation. Investigators should be
trained in conducting employee misconduct investigations, be knowledgeable of
policies and procedures, have good interview skills, and be impartial. There are a number of people that should not
conduct an investigation, including:
a. An investigator against whom the employee
made a complaint.
b. An investigator who is personally involved
with the allegation, such as a witness or complainant.
c. An investigator who is personally involved
with the employee, such as a friend outside of work or a relative.
d. An investigator who is emotionally involved,
such as one who is too angry to be objective, or on the other end of the
spectrum, one who is too emotionally involved in defending the employee.
3. Develop an investigation outline:
a. Identify the allegations/complaints.
b. Identify who will be interviewed and the
order of the interviews.
c. Identify documents to review. Examples may include but are not limited to:
● Payroll records/computer log-ins
● Work rules and policies
● Bargaining agreements and/or administrative
rules
● Acknowledgement forms of work rules,
policies, etc.
● Training and meeting records (attendance
records and dates, subject matter or agenda, or notes/minutes)
● Prior disciplinary actions, coaching and
counseling, and written directives
● Performance evaluations
d. Outline the points to be covered in the
interviews. Prepare topics that will be
asked of interviewees so that answers can be compared and contrasted.
● Consider outlining topics to cover rather
than questions. If questions are
prepared and the witness responds differently than anticipated, it may throw
the interviewer off track. With prepared
questions, interviewers may become focused on the scripted questions and miss
follow-up questions, or interviewers may fail to listen to the answers as they
are preparing to ask the next question.
● Questions should start as open-ended (broad)
and transition to specific to gain detail.
● Be alert to the fact you will need to ask
follow-up questions based on information given during the interview.
● Investigate the current allegations, not the
employee’s past behavior.
4. Investigation Notebook (See the section below
titled Assembling the Investigation
Report): During the course of the
investigation, you will be obtaining documentation to prove or disprove
allegations. Identify all documents as
to:
a. When received.
b. Where and from whom it was received.
c. Source of document (for example, work rules,
policy manual, witness statement).
d. Preserve a copy of the work rules, policies,
and procedures at the time of the investigation. Since these documents are subject to change,
it is important to make sure that you maintain a copy of the rule/policy in
effect at the time of the investigation and subsequent action.
Conducting the Investigatory Interviews
1. Utilize a private, secure location. You may consider an off-site location if the
presence of the subject or witnesses will disrupt the workplace.
2. Do not interview witnesses in groups.
3. Consider whether you want to tape the
interviews. If recorded, include in the
opening remarks the date, time, location, purpose, person being interviewed and
person(s) conducting and present during the interview. If any breaks are taken, record the time you
are shutting off the recorder. When the
tape is turned back on, restate the name of the person being interviewed, the purpose
of the break, the date and time, and state that no interview questions were
asked during the break. At the
conclusion of the interview, note the date and time and state that the
interview is concluded.
4. Have two investigators participate in the
interviews whenever possible, even if the interview is being
tape-recorded. One may ask the questions
while the other takes more detailed notes and assists with follow-up questions.
Keep detailed notes of the interview
even if you tape the interview. Make
sure you take the time to include the questions being asked and the responses. If a statement is important and you want to
quote something, ask the interviewee to wait, record the response exactly as
stated, then repeat it back to the interviewee and ask them to confirm the
statement.
5. At the beginning of the investigation, explain
that you are conducting the investigation.
Advise the employee alleged to have engaged in misconduct that the
investigation could result in discipline, up to and including discharge.
6. If the employee requests representation,
follow the procedures for obtaining representation outlined in Section 11.15 of
the Managers and Supervisors Manual.
7. Pay attention to the employee’s non-verbal
behaviors and make note of these as appropriate. For example, if the employee cries, raises
his/her voice, walks out of the room, document this in the investigation
notes. If the employee becomes angry or
loses his/her composure, advise the employee that you will give him/her a few
moments to gain composure before continuing the interview. If behavior is threatening or the employee
may injure him/herself, property or others, contact the appropriate
authorities.
8. Do not make any promises about the outcome of
the investigation. If an employee
questions whether he/she will be disciplined or what will happen, indicate that
you intend to do a full and complete investigation and you will determine an
appropriate outcome.
9. Do not give your opinion about what occurred
or what the interviewee is saying.
10. Tell the interviewee to contact you if anyone
else contacts him/her about the investigation or if he/she recalls something
not shared with you.
11. Do not guarantee that you are accepting the
information from the interviewee confidentially or that you will maintain
confidentiality of who complained or what was said. Inform the interviewee that information is
shared on a need-to-know basis. Reassure
the interviewee that you will investigate alleged retaliation.
12. Document only the facts. Use quotation marks only for exact
quotations. Do not use them to emphasize
words or your interpretation of what was said.
Do not include opinion or stray remarks in your documentation. Do not include your recommendations in the
notes of the interview.
13. Types of questions to consider:
a. Who committed the act?
b. What was the act? When did it occur and exactly what
happened? What were you doing when it
occurred?
c. Where did it occur? Were you standing or seated? How far were you from the act? What were the lighting conditions or the line
of sight?
d. How often did it occur?
e. Why do you think the act occurred? (Motive)
f. Find out if he/she actually saw or heard
something (direct evidence) or if he/she concluded an act occurred based on
what they saw or heard (circumstantial).
Example: you saw someone eat a cookie (direct) or you saw crumbs on
their face (circumstantial) which led you to believe he/she ate the cookie.
g. How did you react? What response did you make when it occurred
or afterwards?
h. Who did you discuss it with and when? What did you say?
i. How did the act affect you? Has your job been affected in any way?
j. Who else was present when the act
occurred? Where were they in relation to
you? Who else has any knowledge of the
act? Has anyone else discussed it with
you? If so, who and what did that person
say? Did anyone see you immediately
after the act?
k. Did the person you are accusing of
inappropriate conduct engage in the same or similar conduct with anyone
else? Who, what, where, when and
how? Has anyone else complained to you
about similar conduct?
l. Did the employee alleged to have engaged in
misconduct contact you about the act?
m. Do you have any notes, evidence or
documentation about the act?
n. How would you like the situation resolved?
o. Do you know of any other relevant information?
14. Ask open-ended questions and do not interrupt
the person being interviewed unless the person needs to be redirected to answer
the question asked. Do not ask leading
questions. Ask clarifying questions if
answers are not clear.
15. You may require the witness or subject to
respond to a question (see the section on the Garrity warning in Section 11.15 of the Managers and Supervisors Manual).
16. You do not need to provide a witness the name
of the complainant unless necessary.
Consider whether the identity of the complainant is going to be kept
confidential, or if release of the name is important to adequately allow the
subject the opportunity to respond to the allegation. It is often not possible to withhold the
complainant’s name when conducting a thorough investigation. Do not discuss statements made by others
unless absolutely necessary, as it may affect the recall of the interviewee, or
the interviewee may adopt the testimony of others as his/her own.
17. If the employee states that the allegation is
false, ask him/her how the information could have been misconstrued; what
actions/statements could have caused a misunderstanding; and, why the
complainant or witnesses might have a reason to make false accusations.
18. Allow the employee to provide names of
witnesses that could back up his/her side of the story. If the employee suggests other witnesses, you
will need to interview them prior to closing the investigation.
19. Allow the employee to provide physical
evidence or documentation regarding the incident.
20. Before concluding the interview, ask the
employee if there is anyone else you should talk to and whether he/she has any
other information they wish to provide.
Evaluating Results of an Investigation
After the interviews have been conducted and the evidence
gathered, management needs to determine the credibility and probative value of
the evidence.
1. What was the demeanor of the
interviewee? (Be cautious; these are
only indicators.)
a. Appearance
b. Gestures
c. Voice
d. Other Behaviors
e. Was the witness straightforward or evasive?
2. Was there evidence of bias on the part of any
witness?
a. Was the witness the best friend or the worst
enemy of the employee being investigated?
b. Was there motive or an interest in the outcome
on the part of the witness?
c. Was the complainant/witness an inmate,
patient, or client and is the statement credible?
3. Did the interviewee accurately describe or
explain his/her observations?
a. Was the interviewee impaired?
b. If the interviewee’s memory is not clear,
evidence is speculative. For example,
the witness may state, “I can’t recall exactly, but maybe he had his hand on
her leg.”
c. It may help to have the witness link the
incident to something that can be confirmed by outside evidence. For example, the witness may say she was sure
the incident occurred at 3:15 p.m. because she was on break and always goes to
break at 3:15 p.m. Check the pattern of
breaks and interview other people aware of where the witness was at 3:15 p.m.
to verify this pattern.
4. Are the witnesses consistent in their version
of the facts?
a. If the statements, interviews and evidence
are consistent, this strengthens your case.
b. Are perceptions distorted or exaggerated?
c. Are witness timelines accurate, diminished or
exaggerated?
d. Have the witnesses attributed a motive or
purpose for the incident that is not supported by the evidence?
e. If statements and/or interviews are
inconsistent, this weakens the credibility of the case. If witness statements
are unclear or inconsistent, re-interview the witnesses to clarify facts.
f. Compare written statements, if applicable,
to answers given during an interview.
5. Review the evidence.
a. Ensure that all witnesses have been
interviewed.
b. What evidence has the subject provided in
his/her own defense? Is it possible that
there could be other evidence that the subject, complainant or witnesses have
not provided?
c. Is there greater information supporting the
allegation or disputing the allegation?
d. Is your evidence strong enough to convince a
GRIP panel, PERB, an arbitrator and/or a jury?
e. Look at the evidence as if you were opposing
counsel:
● Are the policies inconsistent or unclear?
● What are the possible defenses for the
alleged violations?
● Are there mitigating circumstances?
● Was the investigation complete?
● Was the investigation fair and impartial?
1. If the evidence supports the allegation of
misconduct:
a. Assess the severity of the rule infraction.
b. Have others been disciplined for this
violation in the past? If so, what
discipline was imposed?
c. Work with the personnel officer to determine
if there is just cause to take action and to determine the appropriate
corrective action.
d. Was the employee being investigated aware of
the work rule or policy and did he/she understand that an infraction of the
rules or policies could result in discipline?
e. Is the rule or policy reasonably related to
the employer’s operation?
f. Inform the complainant that the
investigation has been concluded and that appropriate action has been
taken. Reassure him/her if there are
other incidents or if he/she feels that retaliation is occurring, an
investigation will be conducted.
g. If discharge is considered, prior to the
imposition of the final action, a Loudermill
meeting must be conducted. Employees are
entitled to representation during this meeting.
The employee must be informed that the investigation is complete and,
based on the evidence, discharge is the appropriate remedy for the misconduct. Ask the employee if he/she has any additional
information to offer for consideration before a final decision is made. If the employee offers additional information
that could have an effect on the decision to discharge, the investigation should
be reopened and the new information should be followed up on prior to a final
decision being made. If the employee
offers no new information during the Loudermill
meeting, the discharge should be imposed.
2. If the evidence does not support the allegation
of misconduct or is inconclusive:
a. Inform the subject that the investigation
does not support the allegations.
b. Remind the subject he/she cannot retaliate
against the complainant or witnesses.
c. Inform the complainant that the investigation
did not support the allegations.
3. Management should:
a. Revise rules/policies that are not clear or
implement new rules/policies, if necessary.
b. Determine if employees need training on
policies and establish a periodic training schedule on major policies.
c. If an employee is suspended from work as
disciplinary action, other employees should only be informed that the employee
is absent from work.
d. If an employee is discharged for just cause,
others may be told the discharged employee no longer works there, but the
reason for the discharge should be withheld.
Assembling the Investigation Report
The investigation into the
allegations of misconduct should be well documented by management prior to the
imposition of discipline. Since the
investigation report may be turned over to the union (for contract-covered
employees), or to a private attorney or representative (for noncontract-covered
employees), the investigation report should include all information gathered
during the investigation, including copies of evidence, documents or
information that management relied on in making the disciplinary decision. In order
to determine the appropriate level and type of discipline, you must consider
all elements of just cause. As you investigate the misconduct and determine the
appropriate action, gather and organize your documentation. One way of doing that is to use a tabbed,
three-ring binder or folder. Keeping in
mind that each case will need to be assembled based on the facts and materials
specific to that investigation, a sample arrangement could include:
1. Index
2. Letter
of Discipline
3. Employee
Background:
a. Full name
b. Synopsis of employment
c. Copies of prior disciplinary action that remain in
the employee’s personnel file.
Note: For an AFSCME-covered employee, the
collective bargaining agreement provides that written reprimands,
clarifications of expectations, or other similar memoranda SHALL be removed
from the employee’s personnel file after one year, provided no further
disciplinary action has been taken against the employee. This provision applies to all written reprimands in a
personnel file that are older than one year, even if the documents are dated
prior to the current collective bargaining agreement. If an employee does not ask to have the
documents removed and the documents remain in the file, those documents may not
be used in establishing progressive discipline in any subsequent actions after
one year.
4. Copies of notice and rules:
a. Employee acknowledgement forms of policies,
directives, work rules
b. Copies of appropriate policies, work rules,
directives
c. Notes from coaching and counseling
d. Notes from team meetings/training sessions
where a rule or process was discussed
e. Other documents relating to the misconduct
5. Investigatory interview documentation:
a. Interview notes from the complainant, the
witnesses and the subject
b. Complainant statement, if applicable
c. Subject statements, if applicable
d. Witness statements, if applicable
e. Any other documentation or evidence that was
gathered, reviewed, or relied upon in proving the offense or used to justify
the discipline imposed. If any part of
the investigation or documentation will be used in the GRIP proceeding or in
arbitration, it is important that this documentation be presented to the union
at the second step (for contract grievances) or third step (for noncontract or
non-GRIP eligible grievances) of the grievance process.
6. Documentation supporting the determination of
the appropriate level of discipline:
a. Proof of comparable disciplinary actions
imposed on other employees for similar infractions.
b. Be prepared to discuss how the appropriate
level of discipline was determined.
● Have all employees who violated this rule
been disciplined? You will need to know
who, when, and what form of discipline was imposed.
● Is the discipline related to the seriousness
of the offense? Was the length of
service and past performance record of the employee taken into consideration?
7. Timeline of the incident and investigation –
Investigations must be complete and timely.
Your timeline should include:
a. Date of complaint/initiation of investigation
b. Date of subject and witness interviews
c. Date of discipline
d. Dates that document delays in the
investigation due to leave taken by subject or witnesses, letter of suspension
with pay pending investigation if applicable, and any other relevant dates
regarding the investigation process.
8. Other items for inclusion, if applicable:
a. Discovery requests and documents – If the union
or noncontract-covered grievant requested copies of any documents during the
course of the grievance, maintain a copy of the request and the materials
furnished to the union or noncontract-covered grievant and share a copy of the
request with DAS-HRE, if appropriate.
b. Job description
c. Organization chart
d. Performance evaluations
e. Maps or diagrams of incident
* The materials gathered in the course of the investigation
should be well organized and preserved.
In addition to use in the grievance process, the same materials are
necessary to defend the department in unemployment insurance proceedings, Civil
Rights or EEOC complaints, and other legal proceedings.
Legislation was passed (Iowa Code Section
80F.1) which provides additional rights to certified law enforcement
officers, as well as, Airport Firefighters, Correctional Officers, and
Probation/Parole Officers, during formal administrative investigations.
An administrative investigation is
defined as an investigative process
ordered by a commanding officer or an agency or commander’s designee during
which the questioning of an officer is intended to gather evidence to determine
the merit of a complaint which may be the basis for seeking removal, discharge,
or suspension, or other disciplinary action against the officer.
A
complaint is defined as a formal
written allegation signed by the complainant or a written
statement by an officer receiving an oral complaint
stating the complainant's allegation.
Following a complaint, and prior to the administrative
investigatory interview, the employee is given, at a minimum, a written summary
of the complaint with the name of the complainant included.
All interviews with the employee
regarding the complaint and disposition of the investigation must, at a
minimum, be audio recorded. In addition
to a union or peer representative, the employee may also be provided representation
by an attorney.
Prior to administering discipline
to the employee, up to and including discharge, management must provide the
employee notice of the results of the administrative investigation. If the employee, in writing, alleges a
violation of the statute, discipline will be delayed by ten (10) calendar days.