Transcript MS DOE PowerPoint Presentation

Investigation for Administrators
How to Conduct Internal Policy
and Procedure Investigations
Presented by the Mississippi Robert Laird, CFE, CSSD
Division of School Safety
Mississippi Department of Education
COURSE OBJECTIVE
 Participants will become familiar with the
authority, investigative techniques, evidence
collection and documentation relating to
investigation of an administrative nature to
include employee misconduct, student
misconduct, Title IX and discrimination
practices.
Definitions
 Criminal
 Is carried out by a commissioned law enforcement law enforcement
officer.
 Investigates violation of a federal or state criminal code.
 Is targeted to criminal conviction.
 Carries constitutional protection for the subject.
 Administrative
 Is conducted (hopefully) by a person trained to do so.
 Investigates a violation of agency policy, procedures OR state or
federal law.
 Is targeted to obtain information.
 Does not necessarily carry constitutional protection for the subject.
 Results my be used in a criminal trial.
Definitions
 Subject
 The person on whom the investigation is centered as
committing the act.
 The target of the interview.
 Victim
 The person/entity harmed by the subject’s actions.
 Interview
 Personal interaction designed to obtain information,
facts, and evidence.
 Interrogation
 Same as above except it is highly subjective in nature.
Definitions
 Signed Statement
 A statement of facts, observations, and knowledge wherein the
author signifies their authorship by signing the document.
 Sworn Statement
 Same as above except the author takes a legal oath as to the
veracity of the statement.
 Confession
 When a subject admits to prohibited actions; usually obtained
via a sworn statement or signed statement.
 Investigator
 A person assigned to collect facts, information, intelligence, and
evidence regarding an event.
Law, policies and procedures in the
Historical Context
Based on old English common law
Had three specific goals:
Cite mandatory conduct.
Cite prohibited conduct.
Cite negative sanctions for violation of the policy.
“That which is not mandatory, is prohibited.”
H. R. Tolkien
“That which is not specifically prohibited, is permitted.”
Laird
Types of Administrative Investigations
Employee Misconduct
Policy and Procedure Violation
Violation of IDEA
Violation of MDE Accreditation Standards
Violation of MBE/MDE Policies and Procedures
Student Discipline
Title IX US Code (Sexual Harassment)
Discrimination (Civil Rights Act of 1964)
Determination of Cause
Elements of Proof
 Those constituent parts of an action that
would tend to prove it occurred and the
perpetrator was the individual that did it.
Black’s Law Dictionary
Standards of Proof
 Beyond a reasonable doubt: The facts lie by virtue to establish guilt.
 Probable Cause: That a cause of action existed based on what a reasonable
intelligent man would believe.
 Clear and Convincing: More than preponderance and less than beyond a
reasonable doubt.
 Preponderance of the Evidence: That degree of proof which is more provable
than not.
 Reasonable Belief: Knowledge sufficient to induce an ordinarily prudent and
cautious man under the circumstances to believe something has occurred.
Black’s Law Dictionary
“Ye Shall know the truth and the truth shall make you free”
Inscribed of the entrance to CIAHQ
“Abandon all hope, ye who enter here”
Inscribed over the barracks at Camp Perry
Employee Misconduct
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Elements of Proof
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That a violation occurred.
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The employee committed an act in violation of the law.
 The employee committed an act in violation of
policy or procedure.
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The employee refrained from performing an act in
accordance with job description.
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Employee acted with reckless disregard for policy,
procedure, or common sense.
Standard of Proof
Clear and
Convincing_____
Burden of Proof
The appointing authority
“Justice is a virgin often sacrificed to the
god of equality”
Major Robert O'Neal
Violation of IDEA
•Elements of Proof
•Quantifiable evidence of a violation
•Standard of Proof
•Preponderance of the Evidence
•Burden of Proof
•The challenging authority
Violation of MDE Accreditation
Standards
 Elements of Proof
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That the district in question was not compliant with cited MDE
standards of accreditation at set forth in MBE Accreditation
Standards.
 Standard of Proof
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Reasonable belief
 Burden of Proof
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MDE
Violation of MBE/MDE/District
Policies and Procedures
 Elements of Proof
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The policy/procedure did exist.
It was disseminated to staff.
Staff were in a position to know about it.
The subject did violate the policy/procedure.
 Standard of Proof
 Burden of Proof
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On the school district
Hell hath no fury like a
bureaucrat scorned.
Milton Friedman
Student Discipline
 Elements of Proof
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The student was aware the behavior was prohibited.
The student chose to engage in the behavior.
 Standard of Proof
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Reasonable Belief
 Burden of Proof
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On the administrator
The bigger the real-life problems, the greater the tendency for the
education profession to retreat into a reassuring fantasy-land of
abstract theory and technical manipulation.
Tom Naylor
Title IX US Code (Sexual Harassment)
 Elements of Proof
 Intimidating, hostile or offensive work environment.
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Sexual Harassment so severe, pervasive and objectively offensive that it deprives one
of educational opportunities and benefits.
The agency is deliberately indifferent to the harassment.
 The circumstances, such as the nature of the sexual advances, and the context in
which the alleged incidents occurred.
 The victim does not have to be the person harassed but could be anyone affected
by the offensive conduct.
 The harasser's conduct must be unwelcome.
 There are two types of sexual harrassment:
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quid pro quo sexual harassment
hostile environment sexual harassment.
 Standard of Proof
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Clear and Convincing
 Burden of Proof
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On the affiant
Discrimination (Civil Rights Act of 1964)
 Elements of Proof
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Victim must prove member of a protected class.
The victim was discriminated against solely because of their class.
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Said discrimination was the substantial or motivating factor behind the action .
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 Standard of Proof
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Clear and convincing.
 Burden of Proof
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On the affiant.
I favor the Civil Rights Act of
1964 and it must be enforced at
gunpoint if necessary.
Ronald Reagan , Former U.S.
President
Determination of Cause
 To determine who, what, why, when, or how
a condition is generated or continued.
Investigation may be likened to the long
months of pregnancy, and solving a
problem to the day of birth. To
investigate a problem is, indeed, to solve
it.
Mao Tse-Tung
Background Investigations
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References are utterly worthless and unreliable.
Ensure you have a release from the applicant
Specifically ask the applicant if they have ever been arrested, questioned, or convicted of ANY
misdemeanor or felony to include expungements.
If a previous employer advises they only confirm employment dates and eligibility for
reemployment, obtain a statement so stating and write on it that the employer refused to furnish
additional information after being furnished with a lawful release. Do it in plain view of the
employer.
Corroborate derogatory information thru two additional sources.
Interview co workers and supervisors.
Ask questions about character, associates, reputation, loyalty, honesty, integrity, and ability.
(CARLA)
Document all phone interviews.
If an employer wants to say something “Off the record” alarms should sound in your head.
The burden of proof is on the applicant, not the agency.
If the background check is pending, ensure the applicant is notified employment is contingent
upon a successful background check.
(Cite Code
Exercise
 Divide into groups and discuss what types of
investigations you do in your job.
Legal Authority for Investigation
 Mississippi Code of 1972, Annotated
 Section 37-9-14
 Section 37-9-59
 37-3-11
 Executive
 Implied
Qualifications for a Competent
Investigator
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Excellent interpersonal communications skills.
Extremely confident and resistant to intimidation.
Assertive personality.
Extremely high professional ethics.
Intelligence with common sense.
Wide range of experience outside of specialty area.
Solid liberal arts education.
I never give them hell. I just tell the truth and
Inquisitive nature.
they think it's hell.
Harry S. Truman
Detail oriented.
An accomplished investigator measures his
abilities in the quality of his enemies
Robert O. Laird
Famous Investigators
Barriers to Quality Investigations
 Personal agenda on the part of the appointing
authority
 Professional agenda on the part of the appointing
authority
 Incompetent investigator
 Outside interference
“A committee is an animal with nine mouths and no brain.”
Samuel Clemens
Investigative Techniques
The Interview
 Should take place in a non threatening environment but not on
the subject’s turf.
 Place the subject at ease and ID yourself.
 State the nature of the investigation and interview.
 The subject has no constitutional rights in an administrative
investigation.
 Wear dark clothing and sunglasses if you want to establish
dominance.
 Do not advise subject they are subject.
 Do not discuss other allegations unless you’re playing mind
games.
 You are there to get the truth not fulfill an agenda.
Interrogation
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Is generally confrontative in nature.
Affords the opportunity to confess.
Can be cathartic in nature.
Know your subject.
Non-Compliant behavior is ALWAYS a choice the student
consciously and willfully makes.
Question Phraseology
 Short and confined to one topic.
 Should be clear and easily understood.
 Watch phraseology and language. Not everyone speaks the same
language.
 Ask precise questions.
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Calls for specific answer.
What did you do?
Where were you?
What did you observe?
 Use discerning questions.
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Should be relevant to the subject.
Types of Questions
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Extended answer questions.
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Soliciting a “yes” or “no” restricts information.
Leading questions.
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Not really good as it influences the response. Is a trait of incompetent investigators.
Can be used to confirm and clarify information.
Double or triple negatives.
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Didn’t you try to calm the student before restraint?
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Didn’t you know you had to report a teacher molesting a student?
Complex questions.
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Cover more than one topic.
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Require more than one answer.
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Require a complicated answer.
Attitude questions.
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Designed to influence the mood of the subject.
Question Sequences
 General to Specific.
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Generally the most efficient.
Is a natural logical progression.
Seek general information before exploring details.
 Reaching Backward.
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Start with known information and ask questions to fill in the blanks.
 More specific estimates of quantities.
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To provide objective measurable type information.
 Comparison.
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Provide a frame of reference.
Controlled Answer Techniques
 To induce a person to admit.
 To induce a person to agree to give
information
Directing the Interview
• Free Narrative
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Orderly continuous account of something.
Interviewer must control and direct subject.
• Direct Examination
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Brings out a connected account of something.
Begin with non threatening questions.
Ask questions in manner to develop facts in the order of
occurrence.
Ask only one question at a time.
Give subject ample time to answer.
• Cross Examination
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Confirm and “fill in the blanks”.
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Detect evasion, conflicting information, vague answers etc.
Exercise
 Divide into groups of three and have team
members conduct an interview regarding
subject’s educational and professional
background and investigative experience.
Mind Games Subjects Play
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I’m not saying anything without an attorney.
Who told you that.
I have a right to know.
Seduction.
Intimidations.
Threats.
What proof do you have?
Pretending to be dumb.
Pretending to be too smart.
Kinesic Interviewing
Primary Human Motivational Factors:
Money
Ideology
Conscience
Ego
Deception
 All homo sapiens without exception lie.
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Adults: 3 lies per day
Juveniles: 7 lies per day
 Homo Sapiens lie because it is perceived to
be in their best interests to do so.
Why do people lie?
•They think they can get by with it.
•They do not fear punishment for it.
•The risk of discovery outweighs the perceived benefit.
•To protect someone else.
•To further an agenda.
•For the fun of it.
•To obtain money, sex, or power.
Culture
Values
Ethics-1
Ethics-2
Ethics Gap
Artistic Deception
 Tell the truth; but not all of it.
“I did not have sex with
that woman.”
“It depends on how you define sex.”
Artistic Deception
 Tell the entire truth; but in such a way as no
one will believe you.
“If I had killed Nichole; How
I would have done it.”
Artistic Deception
 Ignore the question in it’s entirety and hope
it will go away.
Q.
A.
Q.
A.
Why does the PNA allow HAMAS
to target Israel with rockets?”
“We recognize Israel.”
“Why does the PNA allow
HAMAS to exist as a terrorist group?”
“We have no proof HAMA is a terrorist Group.”
Artistic Deception
 Deny everything; admit nothing; and demand
proof
The Physiology of Deception
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You first need to establish a “base line” of kinesic behavior in order to evaluate the subject
in an interview.
It helps to have a second interviewer just to watch the subject.
7% of communication is via words.
38% of communication is via tone and timbre.
55% of communication is via facial expression and body movement.
Deception causes physical and mental stress.
Stress will be demonstrated by the body.
This is the principal of the polygraph.
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Heart Rate
Breathing Rate
Skin Salinity
Blood Pressure
Proxemics
 The amount of space and types of objects among
interviewer and subject:
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Never interview the subject in their office or classroom.
Make them come to you.
With some subjects a barrier works best.
You may want to put the subject in a covertly uncomfortable chair.
Avoid an overt “Gestapo” environment.
Dominate the interview unless you want to go for a “trap” situation.
 Distance communicates intimacy:
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0-18”: intimate space reserved for family and friends.
08-24”: Personal space for most interpersonal interaction.
4-12’.: Social/consultative distance.
Body
 Indicators of deception
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Sitting in a slouched manner. Particularly when combined with
crossed arms and looking to the right.
Standing too far away for the situation.
Appearance/Dress/Deportment
Leaning away
Tightly crossed arms-discomfort/deception
Loosely crossed arms-defiance/possible deception.
Hands on hips is an attempt to establish dominance.
Eyes
 Indicators:
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Rolling Eyes: Frustration or aggression
Avoidance of eye contact (Careful it may be cultural such as Oriental,
Hispanic, Indian
Staring often means an attempt to establish dominance
Wide open eyes will indicate surprise or a sensitive question has been
asked.
Lidded eyes indicate deception or confidence.
The blink rate may dramatically increase during deception.
Pupils will dialate during deception.
Looking to the left indicates recalling factual information.
Looking the right indicates the mental construction of something. May
be deception.
Face
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Furrowing Brow: Not happy with statement may indicate deception.
Frown: Concentrating or uncomfortable;
Grimace: Doesn’t like what you're saying or you just hit a sensitive point.
Lip Biting: Nervous or feeling pressured.
Pursed lips
Covering mouth
Rubbing nose/animated gestures
Tight facial muscles or lips-Deception
Licking lips
Throat Clearing
Hands
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Wringing hands: Uncompfortable with topic/question.
Exagerated gestures.
Hands on hips: Attempt at dominance
Playing with objects (Pen clicking, car keys, et al.)
Pointing: Aggression possible attempt to intimidate.
+Mandates disciplinary action for students engaged in serious or
violent acts.
 Mandates all employees report.
 Definition of unlawful is any violation of Title 97 Mississippi Code.
 Violent acts are so cited in the text.
Physical Evidence
Evidence that can be seen, touched, smelled, or felt.
Forensic:
Documentary: What is a legal document?
Statements
 Signed: Typewritten in subject’s own words. You draft the
statement and have subject sign it.
 Sworn: Typewritten in subject’s own words. You draft the
statement and have subject sign it in front of an authroized
official. (judge, attorney, district superintendent, etc.)
 Investigative: Your report of a conversation you had with
someone.
Polygraph
 Not admissable in court.
 Is an investigative tool.
 Will tell you how to direct an investigation.
 Is only effective if the polygrapher is a
kinesic interviewer.
 Excellent intimidation tool.
Voice Stress Analysis
 Not admissible in court.
 Is an investigative tool.
 Will tell you how to direct an investigation.
 Is only effective if the polygrapher is a
kinesic interviewer.
 Excellent intimidation tool.
Informant/Assets
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All informants have an agenda.
Is the informant in a position to know the information being presented?
Are they willing to testify to their information.
Can you grant confidentiality?
Well (And not so) Meaning Idiots
 The person that just wants to let you know someone doesn’t have a
reason to lie.
 The person that doesn’t want to get involved but just wants you to
know……..
 The person who had similar problems yet didn‘t report them.
 The person who is investigator, judge, jury, and executioner.
 The person who tells you what your findings will be.
 The person who intimates what your findings should be.
The Investigative Report
 Is the most critical aspect of the
investigation.
 Is a legal document.
 Will establish the credibility of the
investigator.
 Should answer ALL questions.
Legal Authority of the
Investigation
 Should reflect:
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Who is the appointing authority.
What is the legal basis for initiating the
investigation.
WHAT IS THE SPECIFIC GOAL OF THE
INVESTIGATION!
Principal Investigators
 Should inlcude the primary investigator and
all other personnel who have conducted
activities in support of the investigation.
Scope
 Should reflect of the range of the
investigation along with collaborating
agencies and entities.
Synopsis
 A brief summation of important investigative
activities and brief summation of the
findings. Very similar to an executive
summary.
Findings
 Outline in paragraph form the information
obtained from various interviews, sources,
evidence, and statements.
Recommendations
 A statement of recommendations for closure
of the case or further disposition. It is not
always within the purview of the investigator
to make recommendations. Only do so if
asked.
Men occasionally stumble over the truth, but most
of them pick themselves up and hurry off as if
nothing had happened.
Winston Churchill, Sir (1874-1965)
Attachments
 Attach copies of:
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Statements (Sworn and Signed)
Interview summaries
Investigative Inserts
Evidence and explanations
Original notes
Post Investigative Actions
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Additional Investigation/Clarification.
Appointing authority concurs.
Appointing authority non-concurs.
Amending the report:
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Do not EVER change a report in it’s original form without
forwarding a statement that changes have been made in accordance
with the direction of the appointing authority.
If an appointing authority wishes findings changed, submit the report
and allow the appointing authority to do it themselves and you keep
the original copy.
Never, ever, under any circumstances whatever, fail to keep an
original copy in your CYA file
In Summation
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Investigations are fun.
You learn a lot.
It’s fun mess with people’s minds.
Assume you will have testify in court.
If people do not complain about you, you are a worthless
investigator.
 Once your professional integrity is compromised, you
will never get it back.
 CYA
And Finally
Go forth and fight evil in support of Truth, Justice, and the
American Way!
Those who choose not to
confront evil are destined to
become it.
Simon Wiesenthal
References
 Dr. Albert Mehrabian, Psychology Today
 Drs. Gabriel and Nilli Raam, Laboratory for Scientific Interviewing, Tel
Aviv, Israel.
 SA Clint Van Zant, Agent Profiling Course, Behavioral Science Unit,
FBI Academy, Quantico, VA.
 Denied Area Operations Course, Camp Perry, VA.
 The Gentle Art of Interviewing, Robert F. Royal and Steven R. Schutt.