Internal Investigations at Institutions of Higher Learning: FAQs

  1. What types of events trigger internal investigations at institutions of higher learning?

Institutions of higher education often employ thousands of employees and may enroll tens of thousands of students. These people may use campus housing, work on government research grants, or interact with others inside or outside the classroom, lab or athletic field. Institutions have commercial relationships with suppliers and customers beyond the students they educate. Numerous federal and state regulations apply to institutions. These regulations become increasingly complicated every year, and the cost for noncompliance is high. Many Institutions also operate on the international stage – oftentimes sending researchers and students to developing countries around the world. Despite the concept of an ivory tower, the reality is that their faculty, employees and students are not immune from the lure, or appearance, of bad acts.

So, because the scope of operations is broad and the applicable laws and regulations are many, it very well may be that institutions face a greater likelihood of needing to conduct an internal investigation than for-profit entities of similar size.

A few areas that could trigger an investigation at an institution, if they were to arise, could include conduct predicting violence (perhaps a mass shooting), inappropriate conduct involving students or subordinates (now or years ago), improper handling of government contracts or grants (which might involve false statements), embezzlement or theft, bribery (especially in developing countries), privacy issues, conflicts of interest, state ethics laws, discrimination issues (for instance, EEOC claims or Title IX investigations), sports controversies or violations of rules and regulations concerning athletics (arising from, for instance, the NCAA and, here again, Title IX), and perhaps healthcare or immigration issues. The occurrence of any of these situations, or merely an alleged occurrence, particularly in athletics, can cause enormous damage to an institution’s brand, which is its greatest asset and can take years to heal.

  1. What are the risks of failing to respond appropriately and promptly?

Failing to respond appropriately and promptly could cause serious problems. There could be a lost opportunity to prevent or mitigate dangerous situations, especially if an individual’s conduct suggests something problematic is ongoing, likely or being planned. Hindsight always is 20/20, and, after an unfortunate event, people will question what the institution knew and what it did or should have done in response. Depending on the circumstances, someone might suffer physical injury, liability might arise (particularly in the government funding context, if the institution failed to self-report and had an obligation or incentive to do so), or the institution’s good name might be tarnished.

Failing to act promptly also can result in the lost opportunity to collect and preserve evidence properly, especially electronically stored information (ESI). A loss of evidence could limit the institution’s ability to defend itself and potentially cause an adversary to claim spoliation of evidence.

Finally, being able to tell a story about what the institution did once it learned of the matter is often as important as discovering and acting on the facts. An institution always wants to be able to say that, from the beginning, it took the matter seriously and responded promptly, deliberately and appropriately. This usually provides much-needed credibility. It also may help on the human side, because the person raising the issue often cares most about being heard.

  1. In general, what should you do as part of your investigation?

Before interviewing the first witness, and as soon as the institution understands the general nature of the situation, it should consult with counsel. Preliminary legal advice will help determine if the matter can be handled without lawyers. If the matter is serious, counsel should lead the investigation. It is usually best to handle a serious investigation through outside counsel. This better protects applicable privileges and avoids disruption, leaks, potential conflicts of interest, and intra-office politics.

It is critical that counsel conduct the interviews to trigger the work-product doctrine and the attorney-client privilege. Without counsel involved, these important protections are not available, and in a legal proceeding a third party could likely compel the disclosure of the existence of the investigation and the conduct, impressions, notes and conclusions of the institution’s investigators and administrators. A third party could also try to compel disclosure of this information through open records and sunshine laws, such as the Freedom of Information Act (FOIA). Such requests are easy to make and frequently used by the press. Although exceptions may protect the requested information, those exceptions can be waived, which underscores the need for the immediate involvement of counsel. Even small disclosures can be embarrassing and harmful to the institution’s ability to defend itself.

The institution should appoint a single spokesperson to address inquiries from anyone who might be involved or concerned. This would include inquiries from parents, friends, the community and the press, especially if the situation is or will become public. The spokesperson should plan ahead and stick to an approved script. In some circumstances, it may be wise to retain a public relations firm with experience in crisis management.

Early on, the investigators should identify the custodians of relevant information, where the information is located and how it is stored. The investigators also should issue a litigation hold that follows current best practices. The litigation hold also may involve imaging personal computers and devices, and the timing of the notice and imaging would need to be planned carefully, so as not to provide someone with an opportunity to cover their tracks by destroying evidence. Of course, detailed records of all these steps taken to preserve relevant evidence should be kept. In a perfect world, before a situation arises the likely custodians would have been trained on their preservation obligations, this process and its importance.

Eventually the collected data may need to be processed by an outside vendor and uploaded to a review platform. This might be necessary to allow the information to be searched, analyzed and perhaps produced, especially if litigation or a government investigation ensues.

Once appropriate steps are taken to preserve records, and the investigators understand the legal and business issues, the investigators would begin carefully reviewing written materials, including electronically stored information, and conducting interviews.

Of all the steps involved, interviews are the most delicate. They should usually be conducted by counsel. Care should be taken to issue and memorialize Upjohn warnings to interviewees. In general, this mandatory warning advises the interviewee that the counsel conducting the interview is not the interviewee’s lawyer, but that the interviewee may consult with their own lawyer before the interview begins; the attorney-client privilege applies, but it belongs to the institution, and not to the interviewee; the substance of the interview must be treated as confidential; and the institution may, in its sole discretion and without notice, waive the privilege and disclose information to others. Whatever an interviewee says should be memorialized in a way that maximizes the protections allowed by the work product doctrine and the attorney-client privilege.

After the available information is collected, reviewed and analyzed, the investigator should usually report its findings directly to the institution’s management. Careful thought should be given as to how and in what manner this report should be provided. Written reports may not be advisable in some situations, because there always is the risk that a written report may be discoverable in the event of a FOIA request, litigation or a government investigation.

  1. What can you do to mitigate risk before the need for an investigation ever arises?

An institution can mitigate the risk of an investigation by addressing the risk of the underlying conduct, and there is a lot an institution can do in this regard. Some great approaches to reduce risk include implementing annual, mandatory training on sensitive issues (such as, for instance, discrimination, sexual harassment, and the applicable laws and regulations related to government funding) and routinely updating and revising policies and procedures manuals (including whistleblower and non-retaliation policies), which also should address an individual’s obligations to cooperate with an investigation. Another way to reduce risk is advising people to expect unannounced but periodic audits and actually conducting them. Anonymous hotlines or an online reporting system also could be adopted to help learn of situations as early as possible, and perhaps before a larger problem matures. Establishing a dedicated compliance department can help implement these measures, keep the measures current and make employees aware of their obligations. A dedicated internal audit department can help ensure that these measures are working and detect problems early to allow an institution to get out front and perhaps control how a situation develops. And the “tone at the top” set by the institution’s leaders is critical to creating a culture of compliance with policies, procedures, laws and regulations.

Unfortunately, if an institution does nothing to mitigate risk, it may face enhanced exposure and have difficulty explaining itself later. But a genuine top-down culture of encouraging people to report and disclose, without fear of reprimand, goes a very long way in protecting an institution. A useful and now-familiar phrase embodying that culture might be, “If you see something, say something.”

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