INVESTIGATING STAFF SEXUAL MISCONDUCT

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INVESTIGATING STAFF SEXUAL MISCONDUCT

• Employment Law Considerations
• National Institute of Corrections/American
  University, Washington College of Law
• July 7-12, 2002

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CORRECTIONAL INSTITUTIONS AS EMPLOYERS

• In relationship to an employee, managers of a
  correctional institution are
• 1) Invested with the states police power
• 2) (usually) public employers subject to federal
  and state constitutional law
• 3) employer subject to general employment laws

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THE THREE ROLES OF CORRECTIONAL INSTITUTION
MANAGERS

• Police Powers
• Public Employer
• General Employer

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DIFFERENT SOURCES OF LAW

• Police Powers -- Criminal and Constitutional Law
• Public Employer -- State and Federal
  Constitutional and Statutory Law
• General Employer -- Title VII, Common Law, and
  Other Laws

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POLICE POWER
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CRIMINAL LAW vs. EMPLOYMENT LAW

• Garrity - statement compelled as condition of
  employment cannot be used against employee in
  criminal prosecution
• if criminal prosecution is a goal, employment
  issues must be handled differently

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CASE EXAMPLE ONE
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FACTS

• Corrections officer placed on administrative
  leave pending investigation of alleged sexual
  misconduct with an inmate
• Officer informed, by supervisors and employee
  handbook, that if he did not cooperate with
  police and take a polygraph test, he would be
  terminated
• Officer filed motion to suppress
  self-incriminating statement and polygraph
  results because they were made under fear of
  losing his employment

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RESULT

• Trial Court granted motion to suppress and Court
  of Appeals affirmed
• Officer reasonably believed that he had no choice
  but to make statement to police as part of
  internal investigation
• Moral State can either
• Compel answers to job related questions as a part
  of internal investigation, which cannot be used
  in criminal investigation, or
• Choose to prosecute, in which case cannot
  terminate for failure to answer job related
  questions

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STATE V. CHAVARRIA

• 33 P.3d 922 (N.M. App. 2001)

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EXAMPLE TWO
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FACTS

• Correction officer was arrested and indicted on
  charges of 3rd degree rape and other charges
  related to alleged sexual misconduct with an
  inmate
• Officer was ultimately acquitted of all charges
• Officer filed suit against the county and county
  investigator, alleging false arrest and malicious
  prosecution
• Officer argued no probable cause for arrest
  because investigator induced accuser, who had a
  history of mental illness and drug abuse, to
  fabricate accusations

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RESULT

• defendants motion for summary judgment granted
  because
• No evidence that investigator induced allegations
• Questions about veracity of informant doe not
  automatically defeat probable cause
• Investigators found sufficient corroborating
  evidence
• Moral Finding of probable cause defeats a
  malicious prosecution claim

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CORONA v. LUNN

• 2002 WL 550963 (S.D.N.Y. 2002)

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PUBLIC EMPLOYERS
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CONSTITUTIONAL REQUIREMENTS APPLY TO GOVERNMENT
ACTING AS EMPLOYER

• due process rights
• privacy rights

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BALANCING TEST

• Courts will balance employer needs against
  employee rights to some extent in employment
  context

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EXAMPLE

• Facts
• Food Service supervisor accused by a third party
  witness of sexual misconduct with an inmate
• Employee suspended without pay for two weeks,
  pending investigation
• After investigation concludes with accusation
  unsubstantiated, employee reinstated with full
  back pay
• Employee alleges violation of due process rights
  based on lack of pre-suspension hearing

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• Court balanced
• minimal intrusion on employees rights
  Suspension was temporary and lost wages were
  insubstantial, against
• Prisons substantial interest in the
  investigation and safety concerns

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MACKLIN v. HUFFMAN

• 976 F. Supp. 1090 (W.D. Mich. 1997)

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KEY EMPLOYMENT LAW ISSUES

• discrimination
• defamation

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SEX/RACE DISCRIMINATION CLAIMS

• Plaintiff must show treated differently from
  others of same group
• Best defense is to show all people are treated
  equally

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EXAMPLE ONE
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FACTS

• Native American-Hispanic corrections officer
  accused of sexual misconduct by inmate in the
  special needs unit
• Officer was placed on administrative leave with
  full pay, pending investigation
• Officer reinstated and promoted after
  investigation failed to turn up evidence of
  misconduct
• Officer filed suit, alleging administrative leave
  was racially motivated, violating state
  anti-discrimination laws
• Placed on leave, despite exemplary record, as a
  result of accusations by an inmate with
  credibility issues
• Alleged that At least one white officer was not
  placed on leave following similar allegations

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RESULT

• At the trial level, jury found for officer.
  Defendant appealed, claiming results of polygraph
  test on inmate should have been admissible to
  rebut charge of discrimination
• The appellate court reversed the lower courts
  decision
• no racial motivation established, similarly
  situated white officers treated similarly
• also remanded with instructions to allow the
  admission of the inmates polygraph test
• Polygraph, while not admissible as evidence of
  officers sexual misconduct, was admissible to
  establish non-discriminatory motive for placing
  officer on administrative leave

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SUBIA v. RIVELAND

• 15 P.3d 658 (Wash. App. 2001)

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EXAMPLE TWO
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FACTS

• African American Correctional Supervisor was
  fired following an investigation into allegations
  of sexual misconduct with an inmate
• Investigation concluded there was sufficient
  evidence for termination based on DNA evidence,
  witness statements, polygraph
• Officer filed suit, alleging workplace
  discrimination, on grounds of
• Replacement of African American investigating
  officer
• White officer facing similar accusations was not
  terminated
• General atmosphere of racial intolerance,
  particularly following involvement in prior
  action for systemic racial discrimination

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RESULT

• District Court awarded summary judgment to
  employer and Court of Appeals affirmed, because
• Replacement of AA officer was based on conflict
  of interest
• Dismissal of criminal charges had no bearing on
  evidentiary results of internal investigation
• White officer not terminated the two cases were
  factually dissimilar.
• Two white officers facing similar accusations
  were terminated.
• No nexus shown between circumstantial evidence of
  racial hostility and termination decision

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ENGLISH v. COLORADO DEPARTMENT OF CORRECTIONS

• 248 F.3d 1002 (10th Circ. 2001)

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MORAL CONSISTENCY AVOIDS LAWSUITS

• enforcing policies in some cases but not others
  creates a bad evidentiary record
• discretionary action can be made to look like
  something its not
• important to enforce disciplinary and other
  policy rules across the board, without exceptions
  
• important to train supervisory staff on this
  policy

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DEFAMATION
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EXAMPLE
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FACTS

• Prison warden accused of sexually harassing a
  correction officer
• Asked to resign by two County officials, which he
  did a few days later.
• article detailing the sexual misconduct charge
  later appeared in the paper
• Warden filed suit on various grounds, including
  defamation

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RESULT

• Employer wins
• No defamation because article presented fair
  gist of investigation report and there was no
  evidence any official abused their privilege

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OCONNELL v. COUNTY OF NORTHAMPTON

• 795 F.Supp.2d 529 (E.D.Pa. 1999)

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DEFAMATION LAW SOME BASICS

• Defamation covers false statements that damage a
  persons reputation
• But, its better to avoid reaching point in
  litigation where must argue about truth or
  falsity of the statements
• courts have tried to develop rules that shield
  employers from frivolous lawsuits

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PROTECTION AGAINST DEFAMATION CLAIMS

• Even in private sector, qualified privilege
  protects representatives of employers who give
  out allegedly defamatory information for
  legitimate business purpose

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QUALIFIED PRIVILEGE PROTECTION AGAINST DEFAMATION
CLAIMS

• To gain protection of qualified privilege,
  employer must show
• lack of malice
• good faith
• belief in truth of statement made
• legitimate business purpose in making allegedly
  defamatory statement

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BEST PROTECTION IS CONSISTENT, WELL THOUGHT OUT
POLICIES
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PROACTIVE STEPS

• Establish and adhere to policy limiting
  dissemination of information about employee
  investigations
• Limit dissemination of information toNeed to
  know basis
• Implement policies protecting employee personnel
  files and investigative records

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• Implement consistent policy on reference checks
• Avoid and/or carefully word press releases, etc.,
  especially before investigation complete

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SOME OTHER ISSUES
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UNIONIZED EMPLOYEES

• Disciplinary actions governed by terms of
  collective bargaining agreement
• Employee has right to union representation
• Arbitration is key forum for resolving disputes
  about employee discipline

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ARBITRATION

• Both sides have right to legal representation and
  to present evidence
• Employer may not interfere with right of
  employees to testify at arbitration hearing
• Arbitrator is not required to follow finding of
  misconduct in another forum, even a criminal
  court

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PUBLIC SECTOR UNION ISSUES

• Rules regarding union activity by state and
  municipal employees are established by state law,
  not federal law
• State law also defines administrative procedures
  for public employee discipline

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PROACTIVE STEPS IN UNION CONTEXT

• Run training sessions, which include clear
  statement of disciplinary rules
• Give union policy statement on disciplinary
  procedures for staff sexual misconduct
• Review collective bargaining agreement for
  inconsistent terms request modifications if
  necessary

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NONUNION CONTEXTPRIVATE SECTOR

• Most private-sector nonunion employees are at
  will employees who can be fired at any time for
  any nondiscriminatory reason
• Employee personnel manuals can modify the at-will
  rule

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PROACTIVE STEPS NONUNION, PRIVATE SECTOR

• Check personnel manuals, revise or eliminate any
  problematic terms
• Distribute to employees policy statement on
  employee sexual misconduct
• Develop and adhere to consistent procedures on
  access to disciplinary and personnel information,
  reference checks, etc.

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PRIVACY ISSUES

• In public sector, U.S. constitution applies
• basic test is did the employee have a reasonable
  expectation of privacy?
• courts will engage in a fact-specific inquiry

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PROACTIVE STEPS EMPLOYEE SURVEILLANCE

• Provide general notice about employee
  surveillance methods
• Restrict surveillance methods to those reasonably
  necessary
• Use even-handed procedures for selecting
  surveillance targets

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PSYCHOLOGICAL TESTING

• No legal bar under federal law to using, EXCEPT
  as it may indicate discrimination
• e.g., asking about religious views
• Should check with your legal counsel about state
  law bars
• In public sector, privacy concerns re intrusive
  questions may also be issue

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EMPLOYEE POLYGRAPH PROTECTION ACT

• federal law prohibits most polygraph testing in
  private sector but exempts public employees
• Many states have rules limiting or prohibiting
  polygraph testing check with your legal counsel

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IN ALL CONTEXTS

• Document incidents as soon as possible after
  information is received
• Keep clear notes of investigations
• Take and date witness statements
• Assign investigators who do not have personal
  issues with employee being investigated