What is the supervisor’s responsibility when the alleged misconduct is of a non-criminal nature?

In all other cases where there is an allegation of serious (but not criminal) misconduct, the County Manager strongly urges you to contact Employee & Labor Relations for assistance in planning the investigation. Since any disciplinary action that results from the investigation can lead to an appeal to the Civil Service Commission, arbitration, a discrimination complaint with EEOC or DFEH, or a lawsuit, it is imperative that the investigation be conducted as promptly, thoroughly, and professionally as possible. After getting the initial information, the supervisor should:

Contact Employee & Labor Relations for guidance on planning the investigation.

  1. Develop a list of questions or issues that need to be answered in order to fully investigate the allegation.
  2. Make a list of potential witnesses who may help answer those questions.
  3. Make a list of documents (e.g., time cards, work products, written policies) to be reviewed. For instance, if it is alleged that an employee used a County car for personal use after hours, you should review the employee’s timecard and overtime request to determine whether he/she worked overtime that day.
  4. The next step is usually to interview the employee who is the subject of the allegation. This may not always be the best strategy, and your initial consultation with Employee & Labor Relations will cover this aspect of your investigative plan.

Note: The employee who is the subject of the allegation, and any other employees you interview as witnesses, have a right to union representation if they request it.

  1. Maintain a legible and orderly file of all materials assembled during the investigation. This includes your interview notes, documents reviewed, and any written statements from the complainant or witnesses. This file, known as the investigatory file, will form the basis for any disciplinary action that may result from the investigation and will be relied on to support any such action. Do not file your investigatory materials in employees’ supervisory files.

Get the Facts

In the investigation, you will need to separate allegations from facts. You will need to identify what further testimony or data you will need to determine which if any allegations are true. The following will help in this crucial stage of the investigation:

  • Get specific charges: Make sure the charges are specific. Where (what room or what part of the room), when (date and time) and how did the alleged misconduct/harassment occur? What exactly did the person do or say? Who else was present who may have seen or heard the alleged misconduct/sexual harassment? Seek full answers to questions, and remain neutral throughout the interview stage of the process. Inform the complainant that he/she is expected to keep this information and discussion confidential, that the complaint will be handled as discretely as possible, and to tell you immediately if he/she believes there has been any form of retaliation made for his/her coming forward with a complaint.
  • Isolate witnesses: If there are witnesses to the alleged misconduct or harassment, interview the complainant and witnesses in such a manner that they cannot converse between the interviews (e.g., you and another manager can interview two people simultaneously). If witnesses give short, yes and no answers, ask open-ended questions. For example, if the witness answers “yes” to a question about whether he/she witnessed sexual harassment, a good follow-up question would be, “What did you witness?” Take detailed notes during all interviews, and ask follow-up questions depending on the answers you receive. It is a good idea to read back, or summarize each person’s statements at the end of the interview, and ask if they have anything else to add. Although you cannot promise confidentiality, you can state that you will conduct the investigation as discretely as possible. Inform each witness that he/she is expected to keep the subject matter confidential, and to immediately inform you if there has been any retaliation as a result of being interviewed.

If someone won’t cooperate, point out that you will base your decisions on the information you have on hand and you won’t have the benefit of their version of the story.

During the interviews, take detailed notes of the questions asked and the person’s responses. Since these notes may have to be disclosed in the event of a lawsuit or grievance, be sure to keep them factual and free of personal opinions.

  • Interview the alleged perpetrator: Make sure the individual knows that he/she has been accused of misconduct/harassment and that you are conducting an investigation to see if the allegations are true. Tell him/her what he/she has been accused of and ask for his/her side of the story. The interview should be conducted in a neutral, professional manner. Your role in interviewing the alleged perpetrator is not to prove him/her guilty, but to find out if he/she actually committed the misconduct/harassment he/she has been accused of. Resist the temptation to talk too much, add your own views/opinions, or ask leading questions. Inform him/her of the importance of honesty in answering the questions, and that he/she is expected to keep the subject matter of the interview confidential. Inform him/her that there is to be no retaliation towards anyone as a result of this concern being brought forward.