2. INVESTIGATING STAFF SEXUAL MISCONDUCT Employment Law Considerations National Institute of Corrections/American University, Washington College of Law July 7-12, 2002

3. CORRECTIONAL INSTITUTIONS AS EMPLOYERS 4 In relationship to an employee, managers of a correctional institution are: –1) Invested with the state’s police power –2) (usually) public employers subject to federal and state constitutional law –3) employer subject to general employment laws

4. THE THREE ROLES OF CORRECTIONAL INSTITUTION MANAGERS 4 Police Powers 4 Public Employer 4 General Employer

5. DIFFERENT SOURCES OF LAW 4 Police Powers -- Criminal and Constitutional Law 4 Public Employer -- State and Federal Constitutional and Statutory Law 4 General Employer -- Title VII, Common Law, and Other Laws

6. POLICE POWER

7. CRIMINAL LAW vs. EMPLOYMENT LAW 4 Garrity - statement compelled as condition of employment cannot be used against employee in criminal prosecution 4 if criminal prosecution is a goal, employment issues must be handled differently

8. CASE EXAMPLE ONE

9. FACTS: 4 Corrections officer placed on administrative leave pending investigation of alleged sexual misconduct with an inmate 4 Officer informed, by supervisors and employee handbook, that if he did not cooperate with police and take a polygraph test, he would be terminated 4 Officer filed motion to suppress self-incriminating statement and polygraph results because they were made under fear of losing his employment

10. RESULT : 4 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

11. STATE V. CHAVARRIA 4 33 P.3d 922 (N.M. App. 2001)

12. EXAMPLE TWO

13. FACTS: 4 Correction officer was arrested and indicted on charges of 3 rd degree rape and other charges related to alleged sexual misconduct with an inmate 4 Officer was ultimately acquitted of all charges 4 Officer filed suit against the county and county investigator, alleging false arrest and malicious prosecution 4 Officer argued no probable cause for arrest because investigator induced accuser, who had a history of mental illness and drug abuse, to fabricate accusations

14. RESULT: 4 defendant’s 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

15. CORONA v. LUNN 4 2002 WL 550963 (S.D.N.Y. 2002)

16. PUBLIC EMPLOYERS

17. CONSTITUTIONAL REQUIREMENTS APPLY TO GOVERNMENT ACTING AS EMPLOYER 4 due process rights 4 privacy rights

18. BALANCING TEST 4 Courts will balance employer needs against employee rights to some extent in employment context

19. EXAMPLE 4 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

20. –Court balanced: minimal intrusion on employee’s rights: Suspension was temporary and lost wages were insubstantial, against Prison’s substantial interest in the investigation and safety concerns

21. MACKLIN v. HUFFMAN 4 976 F. Supp. 1090 (W.D. Mich. 1997)

22. KEY EMPLOYMENT LAW ISSUES 4 discrimination 4 defamation

23. SEX/RACE DISCRIMINATION CLAIMS 4 Plaintiff must show treated differently from others of same group 4 Best defense is to show all people are treated equally

24. EXAMPLE ONE

25. FACTS: 4 Native American-Hispanic corrections officer accused of sexual misconduct by inmate in the “special needs unit” 4 Officer was placed on administrative leave with full pay, pending investigation 4 Officer reinstated and promoted after investigation failed to turn up evidence of misconduct 4 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

26. RESULT: 4 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 4 The appellate court reversed the lower court’s decision –no racial motivation established, similarly situated white officers treated similarly –also remanded with instructions to allow the admission of the inmate’s polygraph test Polygraph, while not admissible as evidence of officer’s sexual misconduct, was admissible to establish non-discriminatory motive for placing officer on administrative leave

27. SUBIA v. RIVELAND 4 15 P.3d 658 (Wash. App. 2001)

28. EXAMPLE TWO

29. FACTS: 4 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 4 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

30. 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

31. ENGLISH v. COLORADO DEPARTMENT OF CORRECTIONS 4 248 F.3d 1002 (10 th Circ. 2001)

32. MORAL: CONSISTENCY AVOIDS LAWSUITS 4 enforcing policies in some cases but not others creates a bad evidentiary record 4 discretionary action can be made to look like something it’s not 4 important to enforce disciplinary and other policy rules across the board, without exceptions 4 important to train supervisory staff on this policy

33. DEFAMATION

34. EXAMPLE

35. FACTS: 4 Prison warden accused of sexually harassing a correction officer 4 Asked to resign by two County officials, which he did a few days later. 4 article detailing the sexual misconduct charge later appeared in the paper 4 Warden filed suit on various grounds, including defamation

36. RESULT: 4 Employer wins: 4 No defamation because article presented “fair gist” of investigation report and there was no evidence any official abused their privilege

37. O’CONNELL v. COUNTY OF NORTHAMPTON 4 795 F.Supp.2d 529 (E.D.Pa. 1999)

38. DEFAMATION LAW: SOME BASICS 4 Defamation covers false statements that damage a person’s reputation 4 But, it’s better to avoid reaching point in litigation where must argue about truth or falsity of the statements 4 courts have tried to develop rules that shield employers from frivolous lawsuits

39. PROTECTION AGAINST DEFAMATION CLAIMS 4 Even in private sector, “qualified privilege” protects representatives of employers who give out allegedly defamatory information for legitimate business purpose

40. QUALIFIED PRIVILEGE PROTECTION AGAINST DEFAMATION CLAIMS 4 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

41. BEST PROTECTION IS CONSISTENT, WELL THOUGHT OUT POLICIES

42. PROACTIVE STEPS 4 Establish and adhere to policy limiting dissemination of information about employee investigations 4 Limit dissemination of information to“Need to know” basis 4 Implement policies protecting employee personnel files and investigative records

43. 4 Implement consistent policy on reference checks 4 Avoid and/or carefully word press releases, etc., especially before investigation complete

44. SOME OTHER ISSUES

45. UNIONIZED EMPLOYEES 4 Disciplinary actions governed by terms of collective bargaining agreement 4 Employee has right to union representation 4 Arbitration is key forum for resolving disputes about employee discipline

46. ARBITRATION 4 Both sides have right to legal representation and to present evidence 4 Employer may not interfere with right of employees to testify at arbitration hearing 4 Arbitrator is not required to follow finding of misconduct in another forum, even a criminal court

47. PUBLIC SECTOR UNION ISSUES 4 Rules regarding union activity by state and municipal employees are established by state law, not federal law 4 State law also defines administrative procedures for public employee discipline

48. PROACTIVE STEPS IN UNION CONTEXT 4 Run training sessions, which include clear statement of disciplinary rules 4 Give union policy statement on disciplinary procedures for staff sexual misconduct 4 Review collective bargaining agreement for inconsistent terms; request modifications if necessary

49. NONUNION CONTEXT: PRIVATE SECTOR 4 Most private-sector nonunion employees are “at will” employees who can be fired at any time for any nondiscriminatory reason 4 Employee personnel manuals can modify the at-will rule

50. PROACTIVE STEPS: NONUNION, PRIVATE SECTOR 4 Check personnel manuals, revise or eliminate any problematic terms 4 Distribute to employees policy statement on employee sexual misconduct 4 Develop and adhere to consistent procedures on access to disciplinary and personnel information, reference checks, etc.

51. PRIVACY ISSUES 4 In public sector, U.S. constitution applies 4 basic test is “did the employee have a reasonable expectation of privacy?” 4 courts will engage in a fact-specific inquiry

52. PROACTIVE STEPS: EMPLOYEE SURVEILLANCE 4 Provide general notice about employee surveillance methods 4 Restrict surveillance methods to those reasonably necessary 4 Use even-handed procedures for selecting surveillance targets

53. PSYCHOLOGICAL TESTING 4 No legal bar under federal law to using, EXCEPT as it may indicate discrimination –e.g., asking about religious views 4 Should check with your legal counsel about state law bars 4 In public sector, privacy concerns re: intrusive questions may also be issue

54. EMPLOYEE POLYGRAPH PROTECTION ACT 4 federal law prohibits most polygraph testing in private sector but exempts public employees 4 Many states have rules limiting or prohibiting polygraph testing; check with your legal counsel

55. IN ALL CONTEXTS: 4 Document incidents as soon as possible after information is received 4 Keep clear notes of investigations 4 Take and date witness statements 4 Assign investigators who do not have personal issues with employee being investigated