Roughly one year ago—on March 12, 2019—federal agents made dozens of arrests in the nationwide college admissions scandal known as “Varsity Blues.”
Conducting any type of internal investigation into allegations of institutional failures can be tricky. And the stakes only get higher when the allegations concern administrative failures and oversights. The key to tackling these challenges is to, from day one, break the meta-tasks into individual, digestible process steps, while at all times zealously protecting the investigation’s integrity and independence.
Institutions need a well-defined plan and an investigative team that remains independent and focused on the ultimate goal. With these, they can achieve the kinds of robust and reliable investigative processes and findings that best-position them to, if misconduct has in fact occurred, begin the demanding task of re-establishing the broader community trust.
We have identified four guideposts to help colleges and universities steer themselves, and their communities, through such moments of crisis.
1. Critically Assess Independence and Reporting Lines
Select the investigator carefully. Once an institution determines an investigation is justified, it must select an appropriate investigator, as well as a respected but disinterested stakeholder within the institution to oversee—or, more specifically, to empower—the investigator.
Some complaints warrant investigation by institution-internal functions such as human resources, in-house legal, or compliance officials, but in selected cases, the institution should look to hire experienced and independent outside counsel to conduct the investigation.
Counsel’s independence can be particularly important where the allegations involve past or present administrators or board members. Counsel’s ability to demonstrate that they have little prior involvement with the institution can help stave off later questions about whether counsel’s potential conflicting interests (in protecting a long-term client) may have influenced the results of their investigation.
It bears repeating that any issues—actual or perceived—with the investigator’s background, qualifications, and independence will almost certainly be brought to light by victim advocates, plaintiff’s attorneys, and members of the media covering the investigation.
- What type of complaint being investigated (sexual abuse, campus violence, fraud, breach of fiduciary duties, etc.) and does the investigator have the requisite skill set and experience in handling such allegations?
- Be mindful of the positions, personalities, and backgrounds of the people being investigated.
- Realistically, can in-house resources manage an investigation while still managing normal job duties?
- Is there a need to hire a crisis management or PR firm?
2. Establish Clearly Defined Investigative Objectives and Scope
Start immediately with the engagement letter. The optimal time to establish a clear delineation of roles and responsibilities is in the engagement letter. To avoid any ambiguity concerning what falls within the investigator’s purview, the institution should work with outside counsel to develop an engagement letter that clearly defines the investigatory objectives, in terms of the scope of the issues to be reviewed.
It is equally important to clearly define who the client is. Remember that any blurring of lines here can lead to the inadvertent waiver/forfeiture of legal privilege or other work product protections and can, if not appropriately communicated to outsiders, result in confusion over who the investigators are working for and what they are seeking to do.
Create a written, task-based work plan. The level of detail that can reasonably be incorporated into an investigation work plan will necessarily depend upon the availability of requisite detail at the outset of the investigation.
That said, it should always be possible to at least identify categorical investigative tasks to ensure the investigator and institution are aligned in terms of expected methodology, anticipated internal and external outreach, and final investigative product.
- Examine the summary of the issues being investigated.
- Carefully consider the scope and scale of the investigation—date range, entities involved, and employees and vendors of interest.
- What are the sources of evidence? Who may have relevant information? What are the forms of evidence (email, other electronic records, hard-copy files, voicemail, accounting records, policies)?
- Plan for preserving, collecting, and reviewing evidence.
- Prepare for the possibility of document or legal holds.
- Which potential victims and other fact-witnesses need to be interviewed?
- What is the process and format for reporting findings?
- Determine the timing of any announcement concerning whether the investigative findings will be shared (carefully consider legal, “brand,” and other impacts).
- What experts or other service providers are needed?
- Determine confidentiality and privilege requirements.
- Set a tentative investigation schedule.
3. When Possible Don’t Wait to Begin Remediation
Forward-looking changes can often start immediately. In virtually every investigation, the institution will learn of governance/controls/process areas that can be improved. These improvements not only reduce future legal risk, but also result in more efficient and streamlined operations within the institution and signal to the institution’s stakeholders the earnestness of its commitment to doing the right thing.
Publicize availability of support resources. In some cases involving allegations of abuse, it may be possible to reach preliminary findings prior to the formal conclusion of an investigation.
Once even a preliminary understanding of the nature and scope of the harm becomes apparent, it may be possible for the institution to begin marshaling resources and/or take steps to explore a framework that would allow individuals who experienced harm to secure support resources, such as counseling services.
- What are the desires of the complainant or community (including criminal and/or regulatory authorities)?
- Are there any similar violations within the institution/industry?
- What are the institutional goals (deterrence, punishment, restitution)?
- Structure remediation plan around existing policies and procedures.
4. Strive for Transparency While Safeguarding Privacy
If a public report, you must address measures to ensure independence. If the investigation is in fact to be an independent one, it is important that a final report document the investigation’s objectives, structure, and scope, and also explicitly outline the measures taken to ensure that the institution had no involvement in steering/manipulating the investigation, determining investigative strategy, or reaching the investigation’s ultimate conclusions.
Collecting, analyzing, and sharing the investigative findings. It is important to ensure that findings are factually accurate, appropriately limited, and conveyed in a manner that maximizes protection of legal privileges and protections.
- Determine the form of reporting (privilege).
- Is it a written report, verbal readout, or presentation?
- Consider whether findings will be strictly factual or include legal conclusions.
- Carefully document methodology.
- Consider parties involved in the investigation and their roles.
- What was, and was not, reviewed (limitations to the investigative scope)?
- Create a chronology of tasks—complaint, preparation, evidence review, interviews, findings, and remediation.
- Consider the substance of the report—are facts in dispute?
- If facts are conflicting, be ready to present well-documented findings.
- Will the findings be made public?
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
T. Markus Funk, a former federal prosecutor and law professor with a Ph.D. in law (Oxford), is the firmwide chair of Perkins Coie’s White Collar & Investigations Practice. Together with Trombino, he co-chairs his firm’s Educational Institutions & Services Practice.
Caryn Trombino is a former federal ethics attorney and co-chairs Perkins Coie’s Educational Institutions and Services Practice. Together with Funk, she has handled some of the nation’s most sensitive and high-profile university and college internal investigations in recent years.