Conducting unbiased investigations: tips from the Russia probe

With the recent indictments of Paul Manafort and Rick Gates, special counsel Robert Mueller’s investigation into Russian influence in the 2016 election is front-page news once again.  While most of the press and President Donald Trump’s initial tweets focused on whether Mueller could be fair and unbiased in his investigation, the most recent attacks on the investigation focus on whether Manafort and Gates’ pre-election activities were within the scope of the investigation.

As those of you who conduct internal workplace investigations know, a biased and unfair investigation (or even the perception of such an investigation) is often worse than no investigation at all.  And, while you define the scope of the investigation at the outset, often the investigation changes course as you “follow the evidence.”  Here are some tips to make sure your investigations are done correctly.

Determine whether an investigation is needed
When U.S. Deputy Attorney General Rod Rosenstein appointed Mueller as special counsel, former White House Press Secretary Sean Spicer was quick to state that no investigation was needed. President Trump agreed, tweeting that the investigation is “the single greatest witch hunt of a politician in American history!”

So how does an organization make the right decision on whether an internal investigation is warranted? Some problems can be resolved quickly and informally without an investigation, but other issues may take an extensive investigation and a substantial amount of time to sort through. Consider the following factors when deciding whether to investigate:

• Does the law require you to conduct an investigation (e.g., for allegations of harassment, discrimination, or retaliation)?
• Are the issues simple or complex?
• Does the complaint involve one employee or many?
• Does the complaint involve a single incident or a pattern of conduct?
• Is the alleged behavior significant?
• Are the facts necessary for resolution of the problem known and undisputed?
• Is special expertise required to reach a conclusion?

This decision is critical and can prevent or create liability, and it is important not to make the decision for the wrong reasons. For example, be careful not to avoid conducting an investigation simply because it involves allegations against the CEO or another high-ranking employee or poses a risk of harming the organization’s reputation. If we learn nothing else from the Russia investigation, we should know that Rosenstein is not afraid to investigate the top dog.

Select the right investigator
When Rosenstein appointed Mueller as special counsel, he selected someone with a long history of conducting investigations and prosecutions and performing government service. Mueller is a former prosecutor who worked for the U.S. Justice Department for many years. As FBI director, he oversaw the agency for 12 years. In private practice, he has handled investigations for high-profile clients such as the NFL.

While not every internal investigation requires someone with Mueller’s résumé, deciding who will investigate is one of the most important choices you must make when faced with a need to conduct an internal investigation. Consider the following factors when deciding who the proper person for the job is:

• Do you want to conduct the investigation with internal or external resources?
• Does the person have a working knowledge of the business unit involved?
• Does the person have a working knowledge of the law involved?
• Is the person familiar with your employee handbook, policies, and procedures?
• Can the person be organized when gathering evidence, interviewing witnesses, and analyzing facts?
• Does the person have the respect of employees?
• Is the person impartial?
• Who will be the best witness if the matter ends up in litigation?

Plan the investigation
To have a fair, thorough, and unbiased investigation, you must develop an investigative plan. The plan must be comprehensive and set the scope of the investigation. Your investigative plan should have the following components:

• Investigative file. How will documents be gathered, identified, labeled, and maintained throughout the investigation? How will interviews be documented and recorded? Who will build a chronology and create other documents for the file?
• Relevant documents. All relevant documents should be identified, assembled, and reviewed promptly.
• Relevant evidence. Is there evidence that needs to be gathered and preserved—e.g., videos, text messages, e-mails, machinery, phones, or computers?
• Order of interviews. A fair and unbiased investigation will include interviews of the complaining party, the accused, and all third-party witnesses who can add value to the process.
• Other resources. During the planning stage, determine whether the investigation will require additional resources. Additional resources could include (1) outside counsel for legal issues; (2) experts to assist in evaluating evidence; (3) public relations personnel if there is the potential for adverse publicity; (4) law enforcement if the allegations involve criminal conduct; or (5) private investigators if surveillance or an external investigation is needed.

Also, consider whether you should put the employees involved on paid leave until the investigation is complete. There are two primary reasons to consider placing employees on leave with pay. First, although it may be possible to investigate with the employees still at work, they should be removed from the situation if their presence would interfere with the investigation in any way. Second, a prudent employer will take reasonable steps to protect the complaining party. You should always consider whether temporarily removing the subject of the investigation from the workplace is necessary.

Execute
The words of Mike Tyson, of all people, ring true here: “Everybody has a plan until they get punched in the face.” Being able to plan an investigation is one thing. Being able to gather the relevant evidence, adapt your plan to the evidence, and follow the evidence to a conclusion takes talent and skill.

It is challenging to elicit relevant information from the complaining party, the accused person, and third-party witnesses. Generally, most witnesses are reluctant to provide information because they don’t want to get anyone in trouble. The goal is to use open-ended questions to get witnesses to tell you a story with slight guidance to keep them on track—i.e., counseling questions. Counseling questions include:

• Can you tell me more about that?
• Can you clarify?
• Can you give me an example?
• Can you be more specific?
• What did you mean when you said that?
• Is there anything that would help you remember?

Properly executing an investigation also means you have to ask tough questions. You cannot shy away from the guts of the investigation because it makes you or the witness uncomfortable, nor can you allow the witness to dodge your questions. One way to keep the witness on task is to thank him for his answer and repeat the question: “Joe, thank you for your answer. My question was a little different. My question was: Did you send this e-mail to Sue on July 3, 2017?”

Once you ask the tough questions and gather the relevant information, it is time to evaluate the evidence.  You need to determine the credibility of the evidence, and whether the evidence supports the underlying allegations.  You also need to evaluate whether the evidence points the investigation in a different direction—a violation of a different company policy or another employee who violated company policy that was not initially anticipated.  Just like the Mueller investigation started looking into Manafort because he was President Trump’s campaign manager, the evidence lead Mueller to indict Manafort on pre-campaign activity.

Finally, you must reach a conclusion. You must take the difficult steps of weighing the evidence, determining credibility, and ultimately deciding which facts are most likely true or which story most likely occurred. In doing so, you may find that the conclusion that is supported by the evidence is different from what you thought it would be at the outset or is different from what you want it to be.

Bottom line
Conducting an unbiased and fair internal investigation is not easy. You must select the correct person to conduct the investigation, plan the investigation and follow the evidence wherever it might lead. Failure to follow these steps and your investigation will likely not withstand the scrutiny of the courts or, in the case of Mueller’s investigation, the scrutiny of the President’s tweets.

Jason Ritchie is a partner at Ritchie Manning LLP in Billings, Montana, and a member of the Employers Counsel Network. He may be contacted at jritchie@ritchiemanning.com.

Need to learn more? Join us November 15 at the 2017 Advanced Employment Issues Symposium where Employers Counsel Network attorney Charlie Plumb will present Workplace Investigations: Your Action Plan for Probing Complaints, Interviewing Witnesses, Reaching Reasoned Conclusions, and Taking  Action. HR is legally required to thoroughly investigate every complaint of unlawful or potentially unlawful conduct that crosses your desk, even when it seems without merit.  The secret to conducting a successful inquiry is to get your complete investigation plan in place before the complaint ever hits your desk—because as you well know, in HR it’s never a question of if, but when. This 3-hour pre-conference workshop will bring you up to speed on how to conduct efficient, effective, legally compliant workplace investigations.  For more information, click here.