Focus

Legalities of Conducting Internal Investigative Interviews

by Michael L. Buckner

An investigation interview is one of the most effective methods a school district administrator can use to gather facts during an internal inquiry. Whether conducting their own investigation or cooperating with a law enforcement agency, education leaders need to be mindful of four legal considerations relating to interviews.

Consider the case of Jane, a high school history teacher. Jane files a complaint with the school district alleging David, a physical education teacher, posted several threatening notes about her in an online forum. The school district launches an internal investigation, led by the school district attorney.

The attorney meets with David. Halfway into the meeting but before discussing the notes, David requests a union representative be present. The attorney denies the request, even though a union representative could be available at the interview location in 15 minutes. The attorney proceeds with the interview despite David’s protests.

The school district possibly would be prohibited from using the information obtained from David’s meeting as a basis for disciplinary action. David exercised his Weingarten rights, established by the U.S. Supreme Court in NLRB v. Weingarten (1975), which provides that local government employees, including teachers and support staffers, have the right to request a union representative to be present at an investigatory meeting that he or she believes may lead to discipline or during a meeting when the employer begins to seek information to enable it to impose discipline. A waiver of an employee’s Weingarten rights must be clearly expressed and voluntary.

Further, if an employee has asserted his or her Weingarten rights, an employer cannot ask the employee any questions or attempt to elicit information regarding the subject matter of the interview until a representative is present. Nor can an employer threaten discipline or otherwise attempt to force the employee to participate in an interview.

Parental Notification
Case No. 2: Alison, a 6th-grade student, allegedly is sexually assaulted on the school’s premises after regular classroom hours by Josh. Alison immediately reports the incident to Shawn, the school resource officer.

Shawn contacts Alison’s mother about the allegation. The mother informs Mark she does not want Alison to be interviewed without the mother’s knowledge. The following morning, Shawn interviews Alison about the alleged attack without her mother’s knowledge or consent.

Alison’s mother probably would not have a claim since she could not show her knowledge and consent are germane to the reasonableness of Alison’s interview by the officer. According to a 2007 federal court ruling in Wilson ex rel. Adams v. Cahokia School District 187, a school has a compelling need to promptly investigate incidents of student-on-student violence.

In fact, the Wilson decision opined that if an alleged perpetrator committed a second assault on a classmate while school officials dithered on the course of action, the disruption of the school’s educational mission and the school’s civil liability would be enormous.

Search and Seizure
Case No. 3: Tom, a deputy county sheriff, is investigating a string of crimes in the community involving theft and drug possession. The sheriff identifies Nick, a high school senior, as a suspect in the case. The deputy sheriff visits the school where he informs Gene, the principal, he is there to interview and obtain a DNA sample from Nick.

The principal calls Nick out of class and leads him into a room with the law enforcement officer. Tom introduces himself and explains he is investigating theft and drug possession cases. He assures the student he is not under arrest, then conducts the interview and takes a DNA sample from Nick. The student does not object and never asks to leave.

Gene has not violated Nick’s constitutional rights. A federal district court in Wisconsin in 2006 ruled in Burreson v. Barneveld School District constitutional protections may extend to searches and seizures by non-law enforcement officers, including public school officials. However, because students lack the basic right to determine where they will go and when, school officials do not act unreasonably when they verbally direct students’ movement within the school environment.

Release of Records
Case No. 4: Jake, a high school student, files a complaint against Mary, an English teacher, claiming sexual harassment. The school district retains an outside law firm to conduct the internal investigation.

During the investigation, the local newspaper requests the law firm’s investigation records. The school district denies the requests. The investigation reveals the allegation is false. The firm determines Jake filed the false charge in retaliation for Mary failing the student in a course. The newspaper refiles its open records request.

A school district is deemed a “public agency” and is required to follow open records, or freedom of information, statutes. Most interpretations of state open records laws hold that until the investigation is complete, any records pertaining to it are protected. However, once the school district determines whether the employee should be disciplined and imposes such discipline, the decision has become final and the disciplinary records have lost their preliminary-status protection.

Most state open records laws provide limited protection, if any, against the disclosure of a school district’s internal investigations once they become final. Further, most state open records laws require the disclosure of internal investigation records, including reports prepared by outside attorneys and consultants hired by school boards. However, some open records laws may provide exemptions from disclosure of personnel files, letters of reference and any records of sexual harassment complaints and investigations.

Michael Buckner is an attorney and private investigator with the Buckner Law Firm in Pompano Beach, Fla. E-mail: mbuckner@michaelbucknerlaw.com