Investigation of a Grievance Process Complant
Investigations pursuant to a Grievance Process complaint include the thorough and impartial collection of all available evidence by one or more impartial investigators, and concludes with the investigator producing and presenting a Final Investigation Report to the parties for their review and preparation before a live hearing.
Investigations are prompt, thorough, reliable, impartial, and fair to both parties, and may involve interviews with relevant parties and witnesses; gathering and presenting available, relevant evidence; and other investigative steps, as needed.
Assignment of Investigator
Upon receipt of a Grievance Process complaint, the EDEC typically appoints one or more investigators from among the OEC staff to conduct an investigation overseen by the OEC staff. Notwithstanding the foregoing, certain instances (such as conflicts of interest, logistical, or other concerns) may cause the University to utilize an outside consultant or expert to facilitate the investigation. In such instances, all policies, procedures, and standards in the Comprehensive Policy will apply.
Gathering of Relevant Evidence
Though investigations vary based on the context of the underlying allegations, parties have a full and fair opportunity to present relevant evidence and to review and respond to all related evidence collected by the investigator, whether or not the evidence is considered relevant and/or will be relied upon by the hearing administrator(s) in making a decision.
Formal rules of evidence as used in a court of law do not apply. The investigator may seek and consider any evidence that is directly related to the allegation(s) at issue, with the following exceptions:
(1) The University may not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that party’s voluntary, written consent to do so for the purposes of the Grievance Process.
(2) The Grievance Process may not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
Interviews with Primary Parties
One of the most critical investigative steps is meeting with and interviewing the primary parties in a case (complainant and respondent). The purpose of these interviews includes collecting relevant information about the details of the allegation(s); asking probing and clarifying questions; providing the opportunity for parties to present inculpatory or exculpatory evidence and/or relevant witnesses, including fact or expert witnesses, to be interviewed by the investigator; and reviewing and exploring available documentation or other relevant physical evidence (including video footage, digital communications, photographs, etc.).
Parties should present all relevant evidence and witnesses during the investigation, or else such evidence and/or witnesses may not be presented at the hearing. This ensures that both parties have an equal opportunity to be aware of evidence that may be referenced at the hearing.
Investigative interviews may be conducted in-person or remotely/virtually, using available audiovisual technology such as Zoom™.
Both parties have an equal opportunity to present relevant witnesses (including fact and expert witnesses) and recommended questions for the witnesses to be considered by the investigator. Upon the presentation of relevant witnesses, parties are asked to explain what relevance the witness has to the allegation(s) under investigation. Investigators are not compelled to interview all presented witnesses, but if an investigator declines to interview a witness for lack of relevance, the investigator must provide a rationale for determining that the witness was not relevant. Witnesses cannot be compelled to participate in any investigation or proceeding under the Grievance Process.
Investigative interviews may be conducted in-person or remotely/virtually, using available audiovisual technology such as Zoom™. Witnesses are interviewed separately. In some cases, witnesses may also provide written statements in lieu of interviews.
Recording of Interviews
No audio or video recording of any kind is permitted by anyone other than the investigator, during any meetings or interviews associated with the Grievance Process. If the investigator elects to audio and/or video record interviews, all parties present are first made aware of and must consent to the recording. If a party does not consent to the recording of an interview, the interview may be facilitated through the exchange of written questions and answers. Transcriptions of recorded interviews are included as part of the preliminary inspection and review of evidence prior to the conclusion of the investigation and may be accessed by parties, hearing administrator(s), or appeal administrator(s) during any hearing or appellate review.
Preliminary Inspection and Review
Prior to the conclusion of the investigation, the investigator provides both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations – including evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source – so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation.
This opportunity to conduct a preliminary inspection and review of all directly related evidence is facilitated by the investigator, who makes the applicable evidence available for review by each party and their advisor (if applicable). The parties then have at least 10 business days to complete the preliminary inspection and review and submit a written response, if desired, which the investigator will consider prior to concluding the investigation. The evidence subject to preliminary inspection and review is also available to both parties at any hearing, such that both parties have an equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination as described in Article 3, subsection XII.
Final Investigation Report
After reviewing and considering any written responses submitted by the parties following the preliminary inspection and review, the investigator creates a final investigation report ("FIR") that fairly summarizes relevant evidence and, at least 10 business days prior to a hearing, is made available for review by each party and their advisor (if applicable) for their review and preparation of any written response (which may be submitted by parties in advance of the hearing, if desired).
When the FIR is delivered to each party, information is provided regarding the live hearing (as described in Article 3, subsection VI) and an opportunity for each party and their advisor to participate in a voluntary pre-hearing conference. The purpose of the pre-hearing conference is to go over logistics of the hearing, including but not limited to, hearing protocols, expectations for order and decorum, confirm scheduling, review technology, and address any procedural questions. Attendance is not required of any party or advisor, but is highly recommended. Failure to attend the pre-hearing conference will not delay or disqualify the hearing from proceeding as scheduled.