Best Practices in

Personnel Investigations

PANC Fall Conference

October 6, 2014

Jonathan Blumberg—Tharrington Smith, LLP

Glen Buck, HR -Pitt County Schools

Bryan Martin, HR -Wake County Schools

Marvin McCoy, HR - Wayne County Schools

Blunders and Best Practices

Hasty Hires

make

BIG FIRES!

Panel Discussion on Best Hiring Practices

and to Prevent “Negligent” Hiring Decisions.

Blunders and Best Practices

Issue Spotting

Spot the Issue …

A parent calls to say that she was told by a

friend of her daughter that a volunteer coach

was seen on the weekend in his car with a

member of the girls’ softball team. The

daughter has said that there is talk that the

two are having a relationship. What's the

issue?

Issue Spotting Tips …

Is there a policy?

Is this something to investigate? To report?

When in doubt, always do more, rather than less.

If you are not sure, ask for help.

Misconduct

Comes in many types and varieties◦ Sexual misconduct

◦ Drugs and alcohol

◦ Violence/excessive force

◦ Criminal charges and records and other off-campus misconduct

◦ Internet and computer misconduct

◦ Threats

◦ Negligent acts

◦ Willful failure to follow a clear, reasonable directive

◦ Lying, cheating and stealing (including falsification of records, such as Special Education records)

◦ Usually a violation of policy or law

Misconduct Investigations:

Common Blunders

Failing to distinguish

misconduct from

performance cases

Misconduct Investigations:

Common Blunders

Failing to report

◦ Reporting Requirements

Law Enforcement (G.S. §115C-288)

State Superintendent (Title 16 § .0312)

Parents (Seclusion and Restraint Law G.S. § 115C-391.1)

Model Policy on Reporting Information to the Principal

and External Agencies

Panel Discussion on best practices for reporting.

(Remember: When in doubt, report it out.)

Misconduct Investigations:

Common Blunders

Failing to conduct an adequate investigation

◦ Timing of Investigation – immediate

◦ Obtaining and preserving physical evidence (photographs,

video, yardsticks, love letters, electronic records)

Witness interviews

◦ Stress the need for the truth

◦ Pre-set questions with appropriate follow-up

◦ Re-interviews

◦ “The power of cooperation”

Misconduct Investigations:

Questioning Witnesses

Do:

◦ Begin with open-ended questions and narrow

◦ Get lots of detail (where, when, who)

◦ Get names of other knowledgeable people (Who else did you tell? When?) and follow up with them

◦ Be thorough (Any prior instances? Is there anything else?)

◦ Interview “both sides”

◦ Interview the accused

Misconduct Investigations:

Questioning Witnesses

Don’t:◦ Ask leading questions

◦ Question students or other witnesses together

◦ Give up too soon

Misconduct Investigations:

Questioning Witnesses

Other Issues

◦ Presence of other adults during interviews

◦ Contacting parents

◦ Use of student statements

◦ Closing an interview (emphasize confidentiality)

◦ Determining who is telling the truth including consideration of a polygraph

◦ Requests for HR investigation notes

Panel discussion on best practices for obtaining relevant information and questioning witnesses.

Misconduct Investigations:

Appropriate Steps?

Take appropriate action

with respect to

misconduct

◦ Suspending with pay (G.S.

§ 115C-325)

◦ Dismissal

G.S. § 115C-325 – applies to

teachers with career status

G.S. § 115C-325.4 – applies

to non career status

teachers

Misconduct Investigations:

Appropriate Steps?

Disciplinary Measures Short of Dismissal

Disciplinary Suspensions or Demotions (G.S. § 115C-

325(a)(4) & (f)(2)) & G.S. § 115C-325.1 (2) and 115C-

325.5(b))

Removal of duties (coaching, special assignments, etc)

Reprimand/Admonition

Conditional Status (Hope v. Charlotte-Mecklenburg

Board of Ed., 110 N.C. App. 599 (1993))

Resignation (include prospective resignations)

Misconduct Investigations:

Common Blunders

Failing to incorporate into the evaluation process incidents of misconduct that do not lead to dismissal

◦ “Apart from this observation…”

Misconduct Investigations:

Common Blunders

Failing to institute school or system-wide corrective measures during/following any incident—you will be measured best not by what happened, but by how you responded to it.

◦ Safeguards—what protection did you put in place to avoid a repeat?

◦ Checks and balances—how did you improve accountability?

◦ Remedial Measures—how did you seek to assure employees have a better understanding of expectations and are better prepared to meet them?

Teacher Resignations:

Best Practices

DO’s Let individual know it is an option, not a requirement.

Have a witness present, if possible.

Say that when a teacher chooses to resign, he/she is not placed on the “Dismissed Teacher” list at DPI

With a resignation, a teacher is generally eligible to apply for future positions with the school system, but make no promise of re-employment.

Give the employee, if asked, additional time to consider options.

You may say, “Without a resignation, the school system intends to move forward with the termination process” and give a timeline.

Teacher Resignations:

Best Practices

DON’TS

Offer a favorable reference

Offer to change an evaluation

Tell the teacher he or she must decide immediately

Refuse a request to call someone for advice or time to consider options

Tell the teacher he or she will lose a teaching license if he/she doesn’t resign

Say or do anything to suggest an employee has no say-so or choice of options

Complete the entire resignation form for the individual

Negotiate other terms unless with the Superintendent’s approval

Make promises and representations to the teacher without the expressed approval of the Superintendent or designee.

Personnel Misconduct:

Other Blunders

Failure to set clear expectations, or not

consistently enforcing existing expectations

with all staff members

Inadequate, inconsistent, or inaccurate

documentation

Retaliation

Why might an employee engage in

misconduct?

Why might the school system conduct

an inadequate review?

What are the mental excuses that

lead to a blunder?

The anatomy of a blunder

Blunder:

The Same Old, Same Old Blunder

◦ “We have always given our staff the chance to buy

our surplus property before going through formal

disposal procedures. No reason to change, now.”

Best Practice

◦ Continuing to repeat past questionable practices

simply because it has always been done this way in

the past is a recipe for disaster. Reevaluate past

practices and decisions to assure that future actions

are beyond reproach.

Blunder:

The Back Scratching Blunder

◦ “Mr. Taylor has given a ton of money to our athletic

boosters. If he wants to use the cafeteria and kitchen

for his family reunion, there’s no need to ask him to

pay rental.”

Best Practice

◦ While in private business, giving special treatment to

those who do business with you may be effective, in

the school setting you are not at liberty to use public

resources to benefit a private party, even if the party

has scratched the school system’s back in the past.

Blunder:

The Sense of Entitlement Blunder

◦ “I’ve been principal of the school for 17 years. No

one will mind if I load up the mower and take it home

to mow my lawn while mine is being repaired.”

Best Practice

◦ Years of service, extra efforts, dedication, and

distinguished service does not give an employee

added leeway to use school system resources for

your personal benefit or the personal benefit of

others.

◦ Avoid even the appearance of using school system

resources for personal reasons.

Blunder:

“My Kingdom” Blunder

◦ “I know the county does not allow schools to

establish credit card accounts. But I also know my

school. I can’t wait for purchase orders when I could

just set up a credit card with Best Buy.”

Best Practice

◦ Do not develop a mindset that your school or your

department is actually your own kingdom subject to

only your rule, insolated from the authority of the

Superintendent, Board and public scrutiny.

◦ Report any ethical questions to the Superintendent’s

office beforehand for review and an appropriate

decision.

Blunder:

Blind Eye Blunder

◦ “I know female staff complain about Mr. Jones’

flirting. But he’s retiring this year, and his

generation just doesn’t ‘get’ how things are, now.”

Best Practice

◦ Looking the other way is not the right answer. Be

vigilant to any questionable issues, concerns or

conduct, and err on the side of doing more, not less,

in reviewing and addressing a matter.

Blunder:

The Good Neighbor Blunder—The good

neighbor policy applies to neighbors, but not to

school funds/property.

◦ A neighbor lost a tree in his yard, and has a root ball

that is heavy. You happen to have some heavy

equipment at your house and your neighbor wants to

borrow it.

◦ Do you let him borrow it? Sure!

◦ “I don’t have a backhoe. But I’m sure no one would

mind if I borrow one from the maintenance

department.”

◦ Is that OK? NO!

Blunder:

The Good Neighbor Blunder—(continued)

◦ The neighborhood takes up a collection for a

neighbor’s 60th birthday celebration.

◦ Do you contribute? Absolutely!

◦ “My custodian and his wife are celebrating their 50th

anniversary, and I think it would be great to use some

school funds for a gift.”

◦ OK? NO!

Blunder:

The Good Neighbor

Blunder

Best Practice

◦ Use school system

resources solely for

school system

purposes, not for any

private reasons,

however kind or good

neighborly.

Blunder:

The Humanitarian Blunder

◦ “My secretary’s Dad passed away due to cancer. I’m

going to use some school funds to make a donation

to the American Cancer Society.”

Best Practice

◦ While it is kind and humane to help a school

employee who has a personal need or sympathetic

situation, such generosity must be done in a private

capacity, and school system’s resources may not be

expended for this purpose.

Blunder:

The Bad Role Model Blunder

◦ “Mrs. Jackson and her husband’s arrest on insurance

fraud is not related to her work as a cafeteria worker,

so it’s not something we need to deal with.”

Best Practice

◦ Employees are expected to uphold exemplary

standards of conduct in keeping with the duty to be a

good role model at all times.

Blunder:

The Conflict of Interest Blunder

◦ “The athletic department’s golf cart is acting up. My

brother-in-law would fix it cheaper than anyone else.”

Best Practice

◦ Avoid even the appearance of using your position as a

school system employee for private gain.

Blunder:

The “Good Guy”Blunder

◦ “Yes, there are pictures of Mr. Marshall on social

media hanging out with kids all the time. But he’s a

good guy and a super classroom teacher. He’s just

being a mentor for the kids.”

Best Practice

◦ Avoid the “halo effect” of ignoring concerning

behaviors because the employee is likeable and does

an overall good job.

Blunder:

The Team Spirit Blunder

◦ “I’m not going to have people looking at our social

activities. It will be fine to have a separate bank

account for our staff meals, door prizes, etc.”

NO

◦ “I want teachers to look professional. But with the

way they’ve been treated by the General Assembly,

they just can’t afford nice clothes. I’ll give each of

them $100 to use for purchasing new clothes.”

NO

Blunder:

The Team Spirit Blunder

◦ “Third grade is going to visit the State Capitol. It

would be easier for teachers to be visible if they all

had the same T-shirts. I’ll use some local funds to buy

each of them a special shirt.”

YES…if in keeping with local policy

◦ “When teachers do an extra good job, I think they

should be rewarded. When a teacher gets

Distinguished on all standards, I’ll give them a $25 gift

card to Belks.”

NO

Blunder:

The Team Spirit Blunder

◦ “We’ve got an all-day staff development, and there’s

no time for everyone to go out and eat. I’ll have the

meal catered for everyone and pay with school

funds.”

Yes

Conclusion

Panel Discussion Regarding Practices on

Personnel Investigations and “Take Aways”

from the Presentation