Mechanics of Confidential Investigations And Determinations of Cause WHAT EVERY AFFIRMATIVE ACTION OFFICER

Mechanics of Confidential
Investigations And Determinations
of Cause
Richard A. Rose, MA, MEP
"He who knows only his
own side of the case,
knows little of that."
John Stuart Mill
On Liberty
Why have a Process?
Role of the Supervisor
Filing a Complaint of Discrimination with the AAO
Initial Meeting with the Complainant
Initial Determinations
The Formal Complaint Process
The Investigation
Drawing Conclusions and Reporting Investigative Findings
Discrimination Complaint
„ The Agency Head
„ Adoption and implementation of the complaint procedure
„ Assuring that sufficient staff is assigned and trained
„ Directing the implementation of corrective action
„ Affirmative Action Officer
„ Coordinating complaint proceedings
„ Conducting or overseeing investigations
„ Overseeing the implementation of corrective action by
administrative units
„ Intake
Complaint process
„ Time frames
„ Confidentiality
„ Retaliation
„ Accessibility
Implementation of Corrective and Final Actions
Document Dissemination and Storage
„ Record keeping
Why have a Process?
Benefits of an Internal Complaint Process
Having an internal procedure gives you ...
„ The opportunity to resolve complaints quickly through the use of
established procedures for their review
„ The ability to identify training needs based on your observation of
behavioral patterns and practices that may lead to discrimination
„ The capacity to identify and prevent potential violations of
Human Rights Law
„ The opportunity to correct violations internally without
unnecessarily subjecting itself to litigation or administrative
Fifth Amendment and 14th
„ The Fifth and Fourteenth Amendments of the United
States Constitution provide protection against
discrimination by federal and state governments.
„ The Fifth amendment prohibits the federal
government from depriving individuals of "life, liberty,
or property," without due process of the law.
It also guarantees that each person receive equal
protection of the laws.
„ The Fourteenth Amendment prohibits states from
violating an individual's rights of due process and
equal protection.
Major Federal Statutes
„ The Equal Pay Act
amended the Fair Labor Standards Act in
„ Title VII of the Civil Rights Act of 1964
„ The Age Discrimination in Employment Act
„ The American with Disabilities Act (ADA)
„ Guidelines pursuant to Federal Executive Order
#11246 require recipients of Federal funds to
establish a complaints procedure to respond to
allegations of discrimination as a component of each
recipient’s Affirmative Action Program.
„ Affirmative Action Guidelines issued by the NYS
Department of Civil Service, pursuant to Executive
Order #6 similarly requires the implementation of an
agency complaint procedure.
Affirmative Action in NYS
■ New York State Constitution - Article 5
(Merit and Fitness)
■ Executive Law - Article 15
(Equality of opportunity)
■ Executive Order No. 6 (as continued)
(Affirmative Action Program)
New York State Constitution
§ 6. “Appointments and promotions in the civil
service of the state and all of the civil divisions
thereof, including cities and villages, shall be
made according to merit and fitness to be
ascertained, as far as practicable, by
examination which, as far as practicable, shall
be competitive; …”
Article 15
„ § 291. Equality of opportunity a civil right.
1. The opportunity to obtain employment
without discrimination because of age,
race, creed, color, national origin, sexual
orientation, military status, sex or marital
status is hereby recognized as and
declared to be a civil right.
Types of Discrimination
Age Discrimination
Disability Discrimination
Equal Pay and Compensation Discrimination
National Origin Discrimination
Pregnancy Discrimination
Race-Based Discrimination
Religious Discrimination
Sex-Based Discrimination
„ Sexual Harassment
„ Sexual Orientation
„ Retaliation
Notification to the Agency Work Force
about the Complaint Process
„ To be effective, it is important that the work
force is notified and reminded about
applicable federal statutes
„ NYS Human Rights Law
„ agency Equal Employment Opportunity policy
and the complaints procedures
„ This notification must be reinforced
periodically to maintain a level of utilization
Notification to the Agency Work Force about
the Complaint Process
Some suggestions for reinforcing information on
federal, State, and Agency Policies are:
Presentation at
orientation sessions for
new employees
Printed material listing
contact person with
phone numbers may
be included in
Orientation Packet
Agency Newsletter/web site
Periodically place
articles about the
purpose of the
Affirmative Action Office
and how to contact it.
Announce or report on
training opportunities or
Write about new laws or
regulations affecting
protected classes.
Notification to the Agency Work Force
about the Complaint Process
Bulletin Board
„ Post your antidiscrimination policy on all
employment bulletin
boards, and …
„ In all public lobbies
Other Activities
„ Include information in
supervisor training and in
„ Periodically reissue
Commissioner’s Affirmative
Action Policy
The Role of the
Prevention and Resolution at the Lowest
Initial Supervisory Role
„ Many potential complaints are handled through the supervisory
„ Informal Procedure – without a formal investigation
„ Whenever possible, discrimination complaints should be
resolved at the lowest level
„ Informal resolution
„ The supervisor or manager should always consult with a
higher level manager
„ Employee knows they have the right to file a complaint
„ If the complainant is not satisfied with the attempts to resolve
the problem, the complainant may seek remedy through the
Affirmative Action Officer or other sources
Potential for Informal Resolution
1. Is the propriety or impropriety of the act obvious?
EXAMPLE: Sometimes when you explain to the parties
why an act is legal or illegal, fair or unfair, they are willing
to drop or correct the matter.
2. Is the aggrieved act reversible or preventable?
EXAMPLE: Hires and promotions, once made, are rarely
reversed. Disciplinary actions can be reversed and
offensive supervisory practices can be changed.
3. Are the parties disposed to resolving the complaint?
EXAMPLE: One or both of the parties may say that they
really don’t feel like going through with the process.
4. Would a discussion between the two parties help to resolve
EXAMPLE: On occasion a complainant’s receiving an
explanation from the respondent on the reasons why
something was done or not done is all that the
complainant wants.
5. Will acquiring an agreement from the respondent to correct or alter
the action satisfy the complainant’s terms of resolution?
EXAMPLE: Sometimes, what the complainant wants to
happen to resolve the complaint is not doable or
„ If the answer is “yes” to one or more of these questions,
try to proceed.
„ If the answer to all of the questions is “no” then a formal
complaint may be the result.
Filing a Complaint of
Discrimination with the AAO
Who Can File a Complaint of Discrimination
with the AAO?
„ Any employee or applicant for employment may file a complaint
who claims to be aggrieved on the basis of race, sex, etc., by any
employment practice, policy, or procedure
„ The individual must be aggrieved
Complaints cannot be filed on behalf of another person or
persons who were aggrieved, although more than one employee,
if affected, may file joint complaints
Someone who is a customer, client, patron or user of your
Agency’s service
Someone who is a contractor, vendor or other service provider
who works with or comes into contact with your employees during
their work
Complaints must be filed in a timely manner from the date the
alleged discrimination took place
Where and When
„ Agency – your policy outlines your process
„ NYS Division of Human Rights
„ New York State Division of Human Rights
Intake Division
One Fordham Plaza, 4th Floor
Bronx, NY 10458
„ may file a complaint within one year of the unlawful discriminatory
„ U.S. Equal Employment Opportunity Commission
„ New York District Office
33 Whitehall Street
New York, New York 10004
„ Buffalo Local Office
6 Fountain Plaza
Suite 350
Buffalo, NY 14202
„ must be filed with EEOC within 180 days from the date of the
alleged violation
„ 180-day filing deadline may be extended to 300 days if the charge 24
also is covered by a state or local anti-discrimination law
How Complaints are Filed
„ Complaints may be filed in person, over phone,
or by mail; however a standardized complaint
form is preferred as it provides needed
information for the investigation
The Agency should have a standardized form for
filing discrimination complaints internally
„ Discrimination complaints filed with the New
York State Division of Human Rights (SDHR) or
EEOC will be sent to the agency as the
“respondent” when the investigation begins
When Complaints are filed with the EEOC or
SDHR, the Role of the AAO is:
any apparent violations or conditions that may warrant
Initial Meeting with the Complainant
The Role of the Investigator
„ Objectivity in investigating discrimination complaints is critical to
the credibility of the outcome of the investigation
„ to be charged with discrimination is often as humiliating as
being subjected to discrimination
„ Purpose of an investigation is to provide for an unbiased review of
the facts relevant to the complaint and necessary for its resolution
„ Courteous and sensitive conduct by the investigator of a
complaint will not only enhance the probability of resolution, but
will also elicit cooperation from the parties involved
„ Your role is not to judge, but to determine whether or not a
particular action was consistent with Equal Employment
Opportunity mandates and regulations and agency Affirmative
Action policy
Meeting with the Complainant
„ The purpose of the initial meeting is to
establish the details of the discrimination
complaint and to aid the complainant in
properly filling out the complaint form.
develop a checklist of information to be
provided to and information to be received
from each complainant
Complaint Intake Checklist
Information to be Provided to the Complainant
„ The complainant must be informed of his/her right to
file with the New York State Division of Human rights,
the Equal Employment Opportunity Commission or the
They must file within one year of the time that the
alleged discrimination took place.
The filing of a complaint with the Affirmative Action
Office does not inhibit the complainant from filing with
Retaliation by the Agency for filing a complaint is
prohibited by law
Complaint Intake Checklist
Information to be Received from the Complainant
„ Name, job title, address, phone number and work
location of complainant
„ Name of supervisor and his/her title
„ Complainant’s title and appointment status at the time of
„ Name and title of person(s) alleged to have committed a
discriminatory act(s) (respondent)
„ Complainant’s perception of the event(s)
Complaint Intake Checklist
„ Description of alleged act of unlawful discrimination.
„ What job was denied? What promotion was denied? What
position was employee terminated from? What was done that
constituted sexual harassment?
„ On what basis was the alleged act of discrimination? (e.g.
race, age, sex, sexual harassment, disability, etc.)
„ What specific statements were made or actions taken that are
discriminatory? (e.g., previous discriminatory remarks made
by respondent, other persons turned down or terminated
under similar circumstances, person hired was no more
qualified, behavior constituting sexual harassment).
„ Any relevant facts related to the decision such as follow up
discussions complainant may have had with respondent or
situations that may have occurred prior to the incident.
Complaint Intake Checklist
„ Date or dates of alleged unlawful act of discrimination or
dates between which act is alleged to have occurred.
A list of supportive witnesses and documents.
The terms of conciliation agreeable to the complainant.
(What remedies are sought?)
Whether or not the complaint has been taken before any
other grievance board, administrative agency or court.
„ If so, where was it taken and what is the status of the
investigation or action?
The complainant should be informed what is the time for
completing the investigation and that (s)he will be
informed of any unexpected delay in meeting this time
Initial Determinations
Jurisdiction and Validity
If true, Is the allegation an act of
Discrimination in Employment
„ Failure or refusal to hire, promote or train any individual
or otherwise treat the individual equally with respect to
compensation, terms, conditions or privileges of
employment on the basis of:
race, color, national origin, creed, age, sex, sexual harassment,
sexual orientation, marital status, religion, mental or physical
disabilities, arrest record, criminal conviction or Vietnam Era
Veteran status
„ To limit, segregate or classify individuals in such a way
as to deprive or tend to deprive an individual of
employment opportunities on the basis of:
race, color, national origin, creed, age, sex, sexual harassment,
sexual orientation, marital status, religion, mental or physical
disabilities, arrest record, criminal conviction or Vietnam Era
Veteran status
Discrimination in Programs or Services
„ Failure to assure all persons an equal opportunity to participate in
programs and activities without discrimination or segregation.
„ Failure to assure services or other benefits to individuals are not
different or provided in a different manner from that provided to
„ Failure to assure individuals are not treated differently in any way in
the enjoyment of any advantage or privilege enjoyed by others
receiving any service.
„ Failure to assure, when determining types of services, that different
criteria or methods of administration are not utilized which has the
effect of subjecting individuals to discrimination or has the effect of
defeating or substantially impairing accomplishment of the objective
of the program on the basis of race, color and national origin.
Applies to all employment activities
„ Hiring
„ Terms
„ Demotion
„ Layoff
„ Benefits
„ Promotion/transfer
„ Firing
„ Evaluation rating
„ Training
„ conditions or privileges
of employment
Determining Jurisdiction/Definition of
Employment Discrimination
„ To be a complaint of discrimination, the complainant
must feel that the action was based on his/her
„ race, color, religion, sex, sexual orientation,
disability, age, marital status, conviction record,
veterans status, national origin.
„ Sexual harassment is considered a form of sex
„ Discrimination based on an individual’s sexual
orientation is also prohibited in New York State (not
necessarily federally)
Is the Complaint a Valid Discrimination
„ Do you have an actual complaint?
„ Is there an identifiable incident or pattern of
„ Are they related to race, color, religion, sex, sexual
orientation, disability, age, marital status, conviction
record, veterans status, national origin?
„ Was the complainant personally aggrieved?
„ Are there other circumstances, evidence, or
knowledge that lends support to the complainant?
„ Draft a letter to the complainant acknowledging
receipt of the complaint and of the timetables for
complaint process
„ Create an initial case file and place copies of all
correspondence in the office complaint file
„ Internal information process – varies by agency
AAO may inform the Commissioner (Agency Head)
and the appropriate Deputy Commissioner
„ Draft a letter to the complainant informing him/her that
the complaint does not come under the responsibilities
of the Affirmative Action Office and advising him/her of
appropriate alternatives (union, labor relations, etc.)
„ Create an initial case file and place copies of all
correspondence in your office complaint file (you may see
this again…)
„ Internal information process – varies by agency
„ AAO may provide information to another office, if
Simultaneous Complaints/Grievances
„ There are occasions when an employment action can
lead to a discrimination complaint and a contract
grievance being filed at the same time.
„ One way of addressing this situation is...
„ To meet with the Labor Relations person to define
which issues each office will be looking into;
„ With the concurrence of the manager over the office
in which the aggrieved action took place, arrange for
separate visits with the parties to conduct your
respective procedures
„ To agree to discuss each office’s finding to insure
consistency of information gathered and to develop
a complete view of the events.
Formal Discrimination Complaint Procedure
Formal Procedure
„ The substance of the investigation will remain
No party or staff member shall disclose the results of
the investigation or parts thereof except when
necessary to assist in the resolution of the complaint.
„ The Affirmative Action Officer will inform all charged
parties of the factual allegations relevant to him/her
and give them an opportunity to respond to charges
and findings.
The Process
„ Any person with a complaint of discrimination should
contact the Affirmative Action Officer and a
discrimination complaint form will be provided.
The written complaint should be made within a
specified number of working days of the occurrence of
the event which gave rise to the complaint.
This should be clearly identified in the Agency
If the deadline is missed because of circumstances
beyond the complainant’s control, the Affirmative
Action Officer will make the determination as to the
reasonableness of requests and may extend the period
to file.
„ The Affirmative Action Officer should advise the
complainant; explain the internal procedure and other
options available to the individual including time
limitations for filing complaints with State or Federal
compliance agencies, and assist in completing the
complaint form.
„ The Affirmative Action Officer should interview the
complainant and evaluate relevant documents.
„ The Affirmative Action Officer or designee should
interview witnesses and further investigate the
„ At each opportunity, the Affirmative Action Officer
should seek conciliation or an informal settlement that
is satisfactory to the parties concerned.
The Affirmative Action Officer is generally responsible
for investigating the feasibility and legality of any
remedies that are proposed with the Agency Counsel
and Employee Relations Office as it appears
„ When the investigation is completed, the Affirmative
Action Officer should prepare a written report
including recommendations for the Commissioner.
„ The Commissioner should issue/approve the final
decision and recommendations in writing to the
parties concerned.
„ The Commissioner’s decision is final.
If the complainant is not satisfied with the Agency’s
attempts to resolve the problem, the complainant may
seek remedy through external sources.
„ At any point in the procedure, the complainant may
withdraw the charge.
„ Any person who participates in the complaint
procedure may do so without fear of retaliation.
„ Executive Management must set the standard in this
Administrative action should be taken against an
employee who attempts to retaliate against any
individual who has filed a discrimination complaint or
participated in a discrimination investigation.
Investigation Techniques and Processes
Investigation Process
„ An investigation is the collection of information to
describe and explain an event or series of events.
In this definition distinguish between DESCRIPTION
and EXPLANATION to the extent that each represents
a different level of understanding about an incident.
„ Information is a term we will use synonymously with
the word “fact”.
The vast majority of the information we collect will be
facts gathered on the basis of individuals’ sensory
perceptions: sight, hearing, smell, taste and feel.
„ From an investigator’s point of view, there can be no
other means of knowing.
„ Evidence is any information collected in the course of
an investigation which has the potential to assist in
describing and explaining the incident under scrutiny.
„ Evidence which has such potential is considered
relevant, even though it may prove in any
particular instance to be unimportant.
„ Irrelevant information is that which, even if true,
would still not have the potential to assist in
describing or explaining an incident.
„ Ultimately there is no intrinsic validity —— no obvious
truth —— to any set of conclusions which may be
asserted by an investigator.
Assuming that the conclusions have been properly
distilled from the evidence gathered, the final question
when reviewing one’s own work is whether the
evidence was gathered properly and to what
conclusions it leads.
„ In other words, IT IS THE WAY IN WHICH WE
Threshold Issues
„ The purpose of an investigation is to describe and explain an
An investigator collects relevant facts (or information) in order to
accomplish this purpose.
Evidence is those relevant facts which would be used in a
hearing to prove if the alleged action occurred and try to
determine why it occurred.
Evidence can be divided into two types: direct and
Evidence emerges in one of four forms: testimonial,
documentary, physical, and demonstrative.
The manner in which evidence is collected will affect the degree
to which people accept it as true.
Types of Investigation
„ Criminal
the reconstruction of a violation of criminal law in order to
identify and locate the perpetrator and gather evidence to
convict him.
„ Labor Relations
„ the formal, thorough examination and evaluation of all facts
relevant to an Allegation of Misconduct to determine if
Misconduct occurred and to assess its extent, gravity, and
„ Discrimination
„ thorough examination and evaluation of all facts conducted,
in such a way as to maintain confidentiality to the extent
practicable under the circumstances, to determine whether
inappropriate conduct has occurred reaching the level of
Organizing and Conducting An
„ The way in which an investigation is organized can be
an important factor in its success.
„ Organization means not just the clear identification of
responsibility and accountability, but also the speed with
which the various actors assume their roles.
„ When we talk about speed, we do not mean that
every piece of the investigation must be hurried to
conclusion; we mean that without a prompt response
to a reported incident or event, the investigation will
result in a series of unanswered or unanswerable
questions which might not otherwise emerge.
„ Finally, the organization of the investigation also
includes consideration of the order in which the parts of
the investigation occur.
Investigation Organizational Issues
„ For a variety of reasons, evidence of all sorts has a very volatile
“half—life”. Failure to begin investigation of an incident
immediately creates increasing possibilities that evidence will
„ Agencies should plan the manner in which investigations will
be conducted in order to save time when an incident is
„ In planning its mode of response, each agency must take a
number of factors into account, including its structure, size,
personnel, and the nature of the issue being investigated
and the location of its facilities.
„ In addition to speed as a goal in structuring an investigation, the
objectivity —— including the perceived objectivity —— of an
investigator is critical.
Organizational Issues
„ Generally investigators collect physical evidence, if any, before
conducting witness interviews.
„ A thorough review of the documentary evidence will usually
take place after the interviews.
„ Investigators should interview individuals associated with a case
in the following order: the person making the report; the victim;
witnesses; the target.
„ If an incident is also a possible crime, the matter should be
reported to the police.
„ If the police indicate that they intend to conduct the
investigation, the agency investigator should insure that the
scene and documentary evidence are preserved, and that all
witnesses are separated —— if possible —— and remain at
Life of Evidence
„ Evidence which might otherwise be available to an
investigator in seeking a valid conclusion can be lost
when an investigation is delayed.
In some cases the loss is the result of inadvertent
causes, in others the result of deliberate manipulation.
„ Delay can only increase the number of problems
associated with the evaluation of conflicting
testimonial evidence in any case.
Testimonial Evidence
„ For many types of investigations, the most common
type of evidence which will be available and
important to the investigator is testimonial evidence:
information given primarily by virtue of one’s
discussions with witnesses to an event or others who
can provide relevant data.
„ In many cases the inability to identify witnesses or
competently interview them can be fatal to the
investigation’s purpose.
Identifying Witnesses
„ The initial problem facing any investigator will be the
identification of those individuals from whom the
investigator will be able to elicit evidence about the
Not all witnesses will be able to provide direct evidence
about an event.
„ Circumstantial evidence may prove critical to drawing
a conclusion when the investigation ends, so do not
be hesitant to interview those who can provide such
Generally, the nature of the incident or event will
determine which type of witness will be critical.
Preparing for the Interview
„ Before speaking with any witness, including the victim, take a
few moments to outline the types of issues you wish to discuss
during the interview.
„ You need not write out the question verbatim, but only list the
areas which, based on what you know to that point, you believe
will be important to discuss.
„ Keep in mind that you should not be bound to that list, for the
witness may be in a position to help you in ways which you will
not always be able to imagine in advance.
Conducting the Interview
„ The failure to provide for privacy will then make it less likely that
the witness will be willing to respond with a relevant message.
„ After listening to the witness’ recollections, it is best that the
interviewer then begin a closer examination of the person’s
„ In addition the interviewer asks appropriate follow—up
„ Failure to be as complete in your examination of a witness can
result in the loss of information, particularly in a case where the
early identification of eye—witnesses can be critically important.
Interviewing Uncooperative Witnesses and
„ In many cases the individual being interviewed will
behave in uncooperative ways which will likely disrupt
the possibility of a successful interview.
A successful interview results in an accurate account of what
the witness knows about the subject of the investigation.
„ All state employees, whether management or rank—
and—file, have an obligation to respond honestly to
all questions asked during an interview as long as the
questions asked regard job duties, actions on the job,
or are job—related.
Even targets of an investigation as defined in the collective
bargaining agreements are obliged to give an honest
account of their activities even where incriminating.
„ Failure to participate in an investigation can result in
discipline against the person whose behavior is
deemed disruptive.
Interviewing A Target
„ Although a properly appointed investigator can
require state employees to participate in a variety of
ways during an investigation, including submission to
interviews, employees who are identified as “targets”
of the investigation must first be offered the right to
be represented by their union representative if
information gathered may play a role in future
disciplinary action.
„ Failure to offer this right appropriately can result in
considerable damage to the investigation.
„ Conducting a discrimination investigation is not an
employee relations “interrogation.”
Once Employee Relations is involved, then the type of
investigation has changed.
Interviewing Complications
„ Never promise a reluctant witness anonymity if he or she at least
gives information “off the record”.
„ As far as your investigation as a state employee is concerned,
all information is “on the record”.
„ An interviewer should always be prepared with a box of tissues
and an extra dose of patience in the event that a witness cries.
„ Do not permit the interview to end because of the crying.
„ Permit the witness ample time to recompose him or herself and
then continue.
„ Never make a deal: testimony for immunity.
„ Regardless of what we read of the criminal justice plea
bargaining system, a AAO investigator’s role does not include
such negotiations.
Key Issues in Interviewing
Plan your interview before you meet with the witness.
Conduct the interview in a private place.
Do not conduct the interview when you are in a hurry.
If the person with whom you speak is the target of the investigation, he or
she is entitled to a union representative (or private counsel) during the
When you begin the interview, be clear about your purpose.
At the outset, give the employee an opportunity to speak in his or her
own words about what he or she knows.
Whenever possible, begin questions of “who”, “what”, “where”, “why”,
“when” and “how”.
Do not ask leading questions, vague questions or double questions.
Do not take notes until you are ready to take the witness’ statement.
Always speak in a calm voice, without sarcasm or anger.
Avoid giving the witness the impression that you believe or disbelieve
what he or she has told you.
Documentary Evidence / Taking
„ Agency investigators ordinarily become involved with
two types of documentary evidence:
statements from witnesses, which the investigators
themselves use as a means of preserving the witness’
information, and
“business records” in which other agency personnel
have recorded a variety of data for use should anyone
ever have to “ask the files” a question, sometimes long
after the information is recorded.
Taking Statements
„ Never take a statement from an individual until the person has been
„ Often agency investigators arrive on the scene and immediately
ask everyone to send him or her statement, believing the
individual’s written version an appropriate place to begin an
„ most individuals who are asked to prepare a statement never
provide the quality and quantity of information available during
an interview.
„ Circumstantial information is almost impossible without an interview
„ Without the opportunity to discuss the matter with the witness, the
witness who does not want to cooperate may more freely be vague
or, in some cases, be more likely to lie than when having to interact
face—to—face with the investigator.
„ After the interview is completed, you must still remain with the
witness during the preparation of the statement.
„ This will insure that the relevant information you discussed
during the interview will actually appear in the statement.
The Statement
„ Ordinarily investigators use one of two methods in recording the
witness’ statement.
The most common method requires the investigator to
go back over the witness’ story, with the investigator
writing his or her words, as might a stenographer.
Alternatively, the interviewer may engage in the same
process with the witness, but ask the witness to write
down each sentence as they proceed.
„ The purpose of taking a statement is to put in writing the
perceptions of the witness, in the WITNESS’ own words.
„ Therefore, regardless of the actual procedures you use in
taking statements, NEVER “edit” a witness’ statement for
“correct” grammar.
„ Your job is never to include in statement information you
believe is correct, but which was not given by the witness,
even if you have reason to believe the witness is lying.
Finalizing the Statement
„ Before asking the witness to sign the statement, ask
him or her to reread it and make any corrections.
„ If there are changes to be made, ask the witness to
initial and date any alterations in the text.
„ Except for identifying information about time and
place of the interview and similar information, the
investigator should make no marks on the original
copy of the statement.
„ The witness should sign and date each page of a
multiple page statement.
Collecting Business Records
„ Business records are documents which are kept by
agencies in the ordinary course of business.
Some are for personnel purposes, such as schedules,
attendance records and leave requests.
Others are related to the agencies’ mission, such as
cleaning schedules, preventive maintenance records,
and service or work reports.
Email and electronic records.
Securing Records
„ Records must be secured immediately to prevent
tampering or the suspicion of tampering.
„ In some cases the records may be removed from
their ordinary location.
they should be photocopied immediately in order to
show their contents at that point in time, since there
may be legitimate need for some official to use the
documents after the investigation begins but before the
materials might be needed for a hearing.
„ When reviewing documents, always look for obvious signs of
„ use of different writing implements
„ different color ink
„ different handwriting
„ changes in the original entries
„ margin notes
„ different styles of notation
„ If discrepancies exist, you will need to deal with that issue as
„ If you need to make notations about a document, do not write on
the original, nor on at least one photocopy made when the
documents are first secured.
„ Your markings will only confuse what was originally on the
document if it is ever to be used as evidence.
„ Never take a statement from an individual until you have first
interviewed him or her.
Regardless of the actual procedure you use in taking statements, never
“edit” a witness’ statement for “correct” grammar or syntax.
You should always be present when taking a statement from a witness.
„ You may take the statement in one of two ways:
„ you may review a witness’ story with him or her, writing his or her words
as you progress; or,
„ You may review the witness’ story with him or her, letting the witness
write his or her words as you progress.
„ Before asking a witness to sign the statement, ask him or her to
reread it and make necessary corrections.
If a witness makes any changes on a document, including cross outs or
margin notes, those changes should be initialed and dated by the
„ Every statement should also include the following identifying
when taken, where taken, by whom taken, the name of the witness, the
title of the witness (if a state employee) and the signature of the
Physical And Demonstrative Evidence
„ Physical evidence is
any object
„ arrangement of objects
„ substance
„ condition of any person’s body
„ which has the potential for describing what occurred or
explaining what occurred
„ All physical evidence should be collected and/or preserved as early
in the investigation as possible.
„ Failure to begin this process early will result in the loss of
physical evidence and/or raise questions about the validity of
what is collected.
„ Photographs of a scene may be necessary to establish the
circumstances of an event.
„ Floor plans, space maps, etc. give a physical representation of a
Physical Evidence - Issues
„ The location at which an incident occurs could be important in
determining what occurred.
„ Investigators should take pictures and draw diagrams of these
„ In order to insure the reliability of the evidence available at the
scene, someone should secure it in a manner which will prevent
other persons from entering until the investigator has finished his
or her work.
„ Any evidence collected in an investigation must be secured in
a manner which will account for its whereabouts until it may be
needed for a hearing.
„ In making evidence secure in this manner, the investigator has
created a “chain of custody”.
Drawing Conclusions and
Reporting Investigative
Evaluation and Writing
Evaluating Evidence
„ Do not attempt to draw conclusions about what
happened and why until you have collected and
evaluated all relevant evidence.
„ Identify each piece of direct evidence you have
„ Direct evidence is the most powerful in explaining
what occurred, although, it is rare that all of the
evidence will be consistent.
„ Make a list of all circumstantial evidence collected.
„ circumstantial evidence can help us understand why
the event occurred.
„ can take us further in helping to resolve discrepancies
in conflicting stories containing direct evidence.
Writing Investigative Reports
„ A description of the manner in which you became
involved in the case.
A brief description of the initial report you received.
A description of the investigative procedure you used.
A summary of the evidence you gathered.
Your conclusions about what occurred.
Your assessment on whether this meets the standard
of discrimination or harassment.
Your recommendations for corrective action.
Final Report
„ After conducting most thorough investigations, you will
need to write your findings in report form.
„ Your report should be written in a fair and objective
It is not a brief designed to prove someone guilty or
Write in clear and concise English, avoiding jargon
wherever possible.
Correct your draft for spelling and grammatical errors.
Do not use sarcasm or include other flippant remarks.
Possible Outcomes
„ The investigation reveals that the event(s) took place
and that it rises to the level of discrimination and a
violation of law or policy.
„ The investigation reveals that the event(s) took place
but does not rise to the level of a violation of law or
„ The investigation reveals that the event(s) did not
occur as the complainant had alleged and therefore
the available evidence fails to support the allegation.
„ The investigation reveals that there is insufficient
evidence to determine the validity of the allegation.
Burden of Proof – AAO investigations
„ Air of Reality
„ can be successful if it is assumed that all the claimed
facts are to be true
„ Balance of Probabilities - "preponderance of
there is greater than 50% chance that the proposition
is true
„ Clear and Convincing Evidence
„ it is substantially more likely than not that the thing is in
fact true (around 75% certain)
„ Beyond a Reasonable Doubt
„ there is no "reasonable doubt" in the mind of a
reasonable person that the defendant is guilty (such as
90% certain)
AAO investigations
„ "ei incumbit probatio qui dicit, non que
negat" (the burden of proof rests on who
asserts, not on who denies)
„ "burden of proof" requires the complainant to
convince the reviewer of fact of the
complainant's entitlement to the relief they
This means that the complainant must prove
each element of the claim, or cause of action
Corrective Action
„ Final Report is provided to the Agency Head
including corrective action steps.
Possibility of disciplinary action
„ Other individual corrective measures
„ Worksite corrective measures
Systems corrections (how we do things)
Worksite corrections (where we do things)
„ Agency Head make a decision on the
corrective action
„ Senior Managers and Administrative offices
carry out the Agency Head’s directives.
AAO should ensure that the Agency Head’s
corrective action is implemented completely.
„ Depending upon agency procedures,
notification is provided to all parties indicating
the conclusion of the investigation and the
„ Ensure that each complaint has its own case
Includes all case documents, interviews,
documentary evidence, photographs, etc.
„ Includes report, implementation requirements
and follow-up (if necessary)
„ Is discrete, from any other case, and kept
„ May provide evidence during arbitration or
Records Retention
„ NYS Records Retention schedule
„ 90215 – AAO Grievance and Complaint Files
90357 – Employee Relations
Minimum - Destroy 3 years after final resolution
OAG recommends retention at least 3 months
after the minimum
Grievance Case Records
Minimum – Destroy 10 years after final resolution
90358 – Employee Relations
Disciplinary Case Records
Minimum – Destroy 10 years after final resolution
Integrity – the final word
„ The integrity of the investigatory process will
be jeopardized if the investigator is perceived
(rightly or wrongly) as partial or sympathetic
to one view or another.
„ In some situations, the conclusion of an
internal investigation and the action it took
based on the investigation will be questioned
either as a “whitewash” or as a pretext for
firing the individual unjustly.
So Ends the Investigation
Are you ready for an appeal?