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Liability
11/18/2014 12:00 AM

Follow this legal expert’s guidance for the final steps of conducting employee misconduct investigations: making a finding, drafting the investigation report, and wrapping up the investigation.

During the past couple of months, I have addressed the essential elements necessary in preparing for an employee misconduct investigation within your student affairs unit as well as best practices to implement during the discovery process.

This month, to conclude this multipart series involving key considerations that student affairs administrators should address when conducting employee misconduct investigations, we’ll focus on making a finding, drafting the investigation report, and wrapping up the investigation.

  1. Making a finding. As soon as the investigation has been completed and all facts have been collected and analyzed, the investigator should determine the investigation’s findings. When making a finding, the investigator should follow these steps in sequential order:
    • First, note the material facts obtained during the investigation. Don’t draw any conclusions or make any assumptions at this point.
    • Then, analyze the factual findings by reviewing any inconsistent information obtained during the investigation and assessing any witness or document credibility issues that may have been discovered during the investigation.
    • After you have noted the material facts of the investigation and provided an analysis of the facts, you’ll be able to make a finding regarding whether it’s reasonable to conclude that the alleged misconduct actually occurred.
  2. Writing the investigation report. When the internal investigation has been concluded, the factual findings, analysis and assessment should be detailed in a well-prepared and organized investigative report. The investigator should make sure to address the following aspects (at a minimum) in the investigation report:
    • Introduction.
    • Purpose of the report.
    • Chronology of events.
    • Executive summary of the findings.
    • Identities and titles of all involved parties.
    • Overview of the investigation.
    • Methodology used during the investigation.
    • Discovery information (i.e., interview subject names, dates of the interview, location of the interview, document identification with corresponding bates-stamp, etc.).
    • Specific findings and narrative.
    • Corrective actions and penalties.
    • Conclusion.
    • Appendix.

    In addition, during the report’s drafting stages, ensure the report is labeled as “attorney-client privileged.” You also might want to label the report as “work product” if you’re anticipating any litigation. Discuss these considerations with your institution’s general counsel.

  3. Conducting a post-investigation follow-up. Once you have completed the investigation report, any corrective action outlined in the report should be implemented. Appropriate corrective actions in employee misconduct cases may include the revision of existing policies and procedures — or creation of new policies and procedures if none addressing this type of conduct or investigation existed — plus disciplinary action or an educational training program.
  4. Your institution should also follow up with all appropriate parties (e.g., the subject, complainant, etc.) regarding the outcome of the investigation.

    Finally, your athletics department should create a final investigation file that houses all information to keep for institutional records. This file should be based on your institution’s specific policies but may include the following aspects:

    • Communications outlining the steps followed during the investigation.
    • Final investigation report and any supporting documentation.
    • Written communications that took place during the course of the investigation.
    • Final actions taken by your institution following the report and any communications with involved parties regarding these actions.
Advisory Board Speaks
11/7/2014 12:00 AM

If you feel your compliance and regulation responsibilities have become increasingly unmanageable, expensive, time-consuming and overwhelming, you’re not alone. The number of unfunded compliance mandates imposed on student affairs administrators seems only to be growing, further burdening student affairs units already under pressure to accomplish more with less resources.

That’s why we gathered practical tips and strategies from members of the Student Affairs Today Advisory Board. They recently shared advice for making the most out of all this compliance madness. By following their advice, you can learn how to take steps to better manage the increasing compliance tasks at your institution.

If you feel your compliance and regulation responsibilities have become increasingly unmanageable, expensive, time-consuming and overwhelming, you’re not alone. The number of unfunded compliance mandates imposed on student affairs administrators seems only to be growing, further burdening student affairs units already under pressure to accomplish more with less resources.

That’s why we gathered practical tips and strategies from members of the Student Affairs Today Advisory Board. They recently shared advice for making the most out of all this compliance madness. By following their advice, you can learn how to take steps to better manage the increasing compliance tasks at your institution.

Q: How do you keep up-to-date with all the new and changing regulations that impact student affairs?

Shannon E. Ellis, vice president for student services at the University of Nevada, Reno: I rely on professional associations and colleagues. We often call each other and ask, “Hey, what are you doing about the new regulation on this?” It’s not uncommon for one of us to say we knew about one part of the regulation but not about the other. On at least a weekly basis, I also talk to the government affairs staff person (sometimes called a lobbyist) at my institution.

Joan Kindle, vice chancellor for education and training at the Eastern Iowa Community Colleges District Office: In my experience, a government relations position has always been at the cabinet level. Regular briefings at that level are invaluable in keeping on top of the information and communicating about how and what will be done.

Eugene L. Zdziarski II, vice president for student affairs at DePaul University in Chicago: General counsel, public relations and government relations staff. Most institutions’ communications offices have software that can scan the Internet for various regulations being released from the Department of Education or other government entities, or for certain applicable key words or issues, such as sexual assault.

You want staff members — usually your dean of students or assistant or associate deans — to serve as your resident in-house expert and become closer to the issue than you could on your own. It’s better to have a couple of people working on this from different perspectives. Form relationships where you’re collaborating on keeping up with the issues.

Lori Reesor, vice president for student affairs at the University of North Dakota: Designate staff members for different aspects: knowledge or keeping up with policies and regulations, influencing public policy, and compliance or implementation. Match each of those aspects to a staff member with the right skill set and a passion for that task. For larger campuses, make sure you have staff members to help you manage and sift through emails from professional associations and other sources to connect the dots between any gaps or opportunities we have to meet the compliance requirements. For example, if you see something happening in another state, discuss whether that might also happen in your state or if you should follow their lead.

Q: How do you get upper-level administrators to pay attention to compliance mandates that have an impact beyond student affairs?

Kindle: Communication from student affairs has to go to the cabinet level. When those conversations are taking place at the cabinet level, those issues are taken more seriously. So bring the information to the cabinet level and take your place at the table.

Zdziarski: The student affairs VP has to take the issue up to the president and encourage it to become a cabinet-level agenda item.

Ellis: I go to the president and say, “I need you to talk to your direct reports about this.” That should include other VPs of other units, such as the VP of development, and the academic provost because he needs to discuss this with his deans and faculty members. Otherwise, we in student affairs risk being seen as the enforcer or the expert, when that’s not our job or my responsibility. I think we take on too much of an enforcement and information role, and sometimes it’s not our job to do it — it’s someone else’s job. So just think about that for a few minutes before you go down that road. For example, Title IX doesn’t fall under the student affairs unit, so although we need to be educated on this and play a role, student affairs is not the leader in Title IX.

Reesor: All of compliance is not our sole responsibility. It really takes a campus effort. Sometimes it’s appropriate for us to lead and sometimes it’s someone else’s job. I view it as a partnership. I think having support from academic affairs is vital. At times, I like the messages to come from student affairs so others know what we’re doing. But sometimes it needs to come from the department chairs telling their faculty. Although we can try to connect more with department chairs so they can help faculty understand what they need to do and why. Involve some faculty members in the development of your message to help ensure it will be read and understood by all faculty members. Use multiple mediums to communicate your message.

Q: How do you manage the financial pressures of the increase in unfunded mandates?

Ellis: If student affairs takes this on and gets all righteous about it, then you’re the one who has to bring it to the budget committee and find the money for it — and it will eat you alive. No one unit can afford the expense alone. From a budgetary perspective, you want everyone to share a piece of the responsibility, and then everyone sees the need. Otherwise, other units will say, “I’m not going to spend time or money on FERPA or sexual violence — that’s student affairs’ responsibility.”

Zdziarski: During budget reviews, explain that it’s a federal mandate, which ends up getting more attention because then everyone knows it’s required. Just like suddenly Title IX brings attention to health and wellness so people realize we need to fund these areas.

Q: How do you successfully manage compliance training for your staff members?

Zdziarski: Our university created a Compliance Office that monitors all mandates and makes sure everyone receives appropriate training. It’s also a good idea to post information on your website for each regulation, such as campus security reports and FERPA.

Ellis: HR provides all staff members with annual online training in FERPA, sexual harassment prevention, and child protection.

Make sure training addresses the distinction between what’s required and what’s suggested under the laws and regulations. Sometimes, in response to the weight of the government showing up at your door, a staff member might become flustered and give out more than they’re required to provide. So be careful and pay close attention to what you absolutely have to do and what’s required and what’s not.

Kindle: The tendency is to focus on the minimum compliance requirements. However, our actions need to be consistent with the core values of our institutions and true to our ethical responsibilities to our communities. There will be times when we need to question whether the minimum compliance is enough. That can be a hard stance to take, but it might be the one that is needed.

Q: Although many regulations and mandates apply only to higher ed institutions, what role can community partnerships play?

Reesor: Many of these higher ed compliance issues are just one part of larger societal issues. Most of these issues are more complex than just higher ed. So try to partner with others beyond higher ed. For example, students don’t first engage in or learn about sex or drinking when they arrive at college. So we partner with a citywide task force formed by the university president and the mayor to look at cultural issues regarding alcohol. Our university has also partnered with the city on a wellness model that addresses alcohol, mental health and other issues. You can also look into how you can partner with local high schools to educate students about consent and sexual violence.

Zdziarski: Most institutions have town-gown task forces on alcohol, but we can follow suit in other areas, such as sexual assault.

Kindle: Educate and partner with other organizations, such as national fraternities or community groups, who could be helpful in promoting a shift in how we’re all educating on these issues, why we’re doing what we’re doing, and how we might be able to assist each other.

THE BOTTOM LINE: Review checklist for improving management of compliance mandates

Follow these practical tips from our Student Affairs Today Advisory Board members to help you better manage compliance with the growth in unfunded mandates and regulations:

  • Stay updated on new and changing regulations, mandates, policies and laws by staying connected to professional associations, colleagues, general counsel, public relations and communications staff, and government affairs/relations staff and lobbyists.
  • Designate staff members for different aspects, including knowledge or keeping up with policies and regulations, influencing public policy, and compliance or implementation.
  • Bring compliance and regulation issues to your president and ask that they become cabinet-level agenda items.
  • Ask the president to ask other VPs and deans to get the word out about compliance to their staff and faculty members.
  • Clearly convey when mandates are federal requirements so that everyone shares in the financial and implementation responsibilities.
  • Make sure your institution provides annual campuswide training that addresses the distinction between what’s required and what’s suggested by the laws and regulations.
  • Partner with other community and national organizations to provide education on societal issues involved in regulation mandates.
8/26/2014 12:00 AM

You’ve probably heard about the important role personal branding plays in career success. But do you know how to develop a personal brand?

If you find the branding phenomenon confounding, just follow the advice of Elizabeth “Betsy” Alden, president/CEO of Alden & Associates Inc.:

  • Pay attention to professional image. “Doing good work, being professional, serving as a leader, and making good decisions still holds,” Alden said. The three most important areas are your professional appearance, ability to communicate well (written and verbal), and presentation — meaning do you smile and convey a positive aura instead of appearing gloomy. Other important parts of your personal brand include your character, trust in the workplace, knowledge base, ideas, and experience — good, bad and difficult, she said.
  • Maintain a professional online reputation, too. Personal branding now includes your online presence, including social media. Alden’s firm and search committees Google candidates, look at their online images, and conduct background checks. “There’s always one committee member who’s the Google master who’s going to find details about applicants that I didn’t find. We’re going to research you as deeply as we can. We’re going to find the pictures of you at that party. Be aware of your content and presentation,” she said.
  • Customize cover letters. “The cover letter is your golden ticket to getting noticed and the bridge between you and the institution. It’s not the same cover letter you use for every search. The biggest mistake people make is they regurgitate their résumé on the cover letter,” Alden said. Ask questions and understand what institutions are looking for. Take each job qualification they want and use your cover letter to show how you demonstrate those skills in your current position. In one-and-a-half pages, tell why you want to be there and what’s unique and interesting about you. Make it glow. Get help with it if you need it. You want the search committee to say, “Wow, I want to meet this person.” And ensure your titles on your résumé match your cover letter.
  • Review photos. Really look at your photo or ask Alden or another professional for feedback. Have a professional portrait taken and post it on your department’s site, even if you’re the only staff member with a professional photo. It says something about your professionalism and how you view and present yourself, Alden said. “Present yourself in a way that is almost over the top professionally,” she said. Ensure your bio looks good, reads well, is spaced out and isn’t too short. Keep photos and bios consistent between your department’s site and LinkedIn.
  • Prepare for detailed background checks. Many search firms check all educational degrees and conduct criminal and civil background checks, including credit reports, court records, driver’s licenses, and making sure your social security number really belongs to you. When search committees or firms ask if you have any issues in your background, that’s the time to tell them about speeding tickets, financial problems, DUIs, etc. It speaks to the candidate’s character if they don’t admit up front to issues that come out later, Alden said.
  • Develop well-balanced experience. The four cornerstones of athletics administration include: personnel (hiring, firing and disciplining staff), financial (budgeting), and, to a lesser extent, some understanding of compliance and facilities, Alden said. You don’t necessarily need fundraising experience, but you do need to demonstrate the ability to work the room, meet and greet, and make friends.
  • Consider references. Be prepared for search firms to contact non-given references, instead of references you provide. If current or former co-workers or staff members filed grievances or lawsuits against you, tell search firms or committees up front.

For more information, you may contact Betsy Alden at betsy@aldenandassoc.com.

Law and Campus
8/13/2013 12:00 AM

Case name: Gamage v. State of Nevada, No.: 2:12-cv-00290-GMN-VCF (D. Nev. 03/19/13).

Ruling: The District Court denied the defendant’s motion to dismiss, finding the plaintiff had alleged enough facts to allow the case to proceed.

Case name: Gamage v. State of Nevada, No.: 2:12-cv-00290-GMN-VCF (D. Nev. 03/19/13).

Ruling: The District Court denied the defendant’s motion to dismiss, finding the plaintiff had alleged enough facts to allow the case to proceed.

What it means: When a public higher education institution dismisses a student for academic dishonesty, such as plagiarism, it must give the student due process.

And that due process could include permission for the student to be represented by an attorney at a hearing.

Summary: Sujanie Gamage submitted a dissertation to her advisory committee in the chemistry program at the University of Nevada, Las Vegas in February 2011.

A chemistry professor filed a report in June 2011 alleging that Gamage’s dissertation contained plagiarized text.

After a hearing, the university’s academic integrity appeal panel found Gamage had committed plagiarism. She was removed from the program.

Gamage sued, disputing the academic misconduct and claiming violation of due process rights because she was prevented from being represented and/or assisted by an advisor at the hearing.

The university filed a motion to dismiss.

The judge said the Due Process Clause prohibited arbitrary deprivations of liberty.

Noting the complaint alleged UNLV prevented her from returning to the university and effectively from being admitted to another higher education institution, he ruled Gamage had adequately pled a deprivation of constitutionally protected interests.

The judge refused to dismiss the case.

You Be the Judge
8/7/2013 12:00 AM
Christopher Reichert enrolled in Ellzabethtown College in the fall of 2007. He informed the college he had attention deficit hyperactivity disorder, a seizure disorder, and learning disabilities in written expression and reading fluency. Reichert encountered difficulties in his sophomore and senior years.

Christopher Reichert enrolled in Ellzabethtown College in the fall of 2007. He informed the college he had attention deficit hyperactivity disorder, a seizure disorder, and learning disabilities in written expression and reading fluency. Reichert encountered difficulties in his sophomore and senior years.

He allegedly had a heated exchange with a professor when he attempted to drop a course. The professor reported the incident to the department chairman and a meeting was arranged to discuss other complaints against Reichert. The chairman concluded Reichert should be expelled because he represented a threat to others.

The provost overruled the chairman’s decision after Reichert and his parents protested. But Reichert claimed the provost and faculty members devised a multipart plan to force him out. Reichert alleged he was denied further accommodations, rumors were spread about him, and faculty members were told to “make a record of all [his] inappropriate behaviors.”

After a meeting between Reichert and the dean of students, the dean scheduled a disciplinary hearing, which was rescheduled because Reichert had a seizure. Additional meetings were scheduled to discuss Reichert’s professional competency and a plagiarism accusation. Because Reichert suffered a mental breakdown, the college allowed him to take a medical leave of absence but told him he had to face those hearings before returning.

Reichert filed a suit under 42 U.S.C. § 1983 for violations of his civil rights as a person with a disability. He also asserted a claim under 42 U.S.C. § 1985, alleging a conspiracy to violate his civil rights.

Reichert v. Elizabethtown College, et al., No. 10-2248 (E.D. Pa. 04/10/12)

Did the court dismiss the student’s claims?

A. Yes. The court dismissed the claims for violation of civil rights because the university was a private entity and wasn’t acting under color of law.

B. Yes. The court dismissed the claims alleging conspiracy because he couldn’t show that two or more people conspired to have him dismissed.

C. No. The court upheld the claims for violation of civil rights because the university, by virtue of being a recipient of federal funds, acted under color of law.

D. No. The court upheld the conspiracy claim because the allegations were sufficient to establish a possible conspiracy among college officials with the objective of having the student dismissed.

Correct answer: A and D.

The claims under 42 U.S.C. § 1983 were dismissed because Reichert couldn’t show the college was a “state actor.” But the judge noted Reichert’s allegations established the required elements for the § 1985 claim. Because he alleged the individual defendants held at least one meeting to unlawfully remove him and also asserted other allegations of disability-based discrimination, the judge decided not to dismiss the claim.

Editor’s note: This feature isn’t intended as instructional material or to replace legal advice.

Law and Campus
8/1/2013 12:00 AM

Case name: State of Illinois v. Oduwole, No. 5-12-0039 (Ill. App. Ct. 03/06/13).

Ruling: Illinois’ Appellate Court reversed the trial court’s judgment, holding that a Southern Illinois University Edwardsville student was wrongly convicted of attempting to make a terrorist threat.

Case name: State of Illinois v. Oduwole, No. 5-12-0039 (Ill. App. Ct. 03/06/13).

Ruling: Illinois’ Appellate Court reversed the trial court’s judgment, holding that a Southern Illinois University Edwardsville student was wrongly convicted of attempting to make a terrorist threat.

What it means: To prove a charge of attempting to make a terrorist threat, the prosecution must introduce more than just a few writings that appear to be threatening from a student who aspires to be a rap singer, plus weapons without bullets, and the opening of a PayPal account under a pseudonym.

Summary: Olutosin Oduwole, a student at Southern Illinois University Edwardsville, opened a PayPal account under the name “Jeff Robinson” on May 3, 2007. On July 16, the bureau of Alcohol, Tobacco and Firearms informed campus police Oduwole had recently purchased four pistols.

Campus police decided on July 20 Oduwole’s vehicle had been left unattended for more than two days. In accordance with university policy, a campus police officer prepared to tow it away. During a routine inventory of the vehicle’s contents, the officer found bullets in the console.

He also found a piece of paper depicting an inhaler and handwriting. Much of the writing was unconnected words, but it also had the phrase: “SEND 2 to … paypal account if this account doesn’t reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!”

Oduwole was immediately arrested and charged with attempting to convey a terrorist threat. A loaded pistol and nearly 2,000 pages of writings were seized from his room pursuant to a search warrant. A large percentage of the entries appeared to be rap lyrics or writings related to aspiring to have a rap career.

A more thorough search of the vehicle uncovered a knit cap with a ski mask hidden behind the back seat. The searches didn’t yield any indication of plans to distribute a threat or ammunition for the handguns Oduwole had purchased.

A forensic specialist concluded the handwriting on the paper was Oduwole’s.

A Microsoft Movie Maker file was found on the hard drive of his computer, but the file had been deleted. However, some captions remained in a compressed drive and the picture files had names of universities such as Harvard University and Penn State.

At his trial, Oduwole produced evidence he was an aspiring rap artist, and an expert testified the handwriting amounted to the beginning of a song.

Oduwole was found guilty of illegally possessing a firearm and attempting to make a terrorist threat. He appealed only the terrorist threat conviction.

The state argued the handwritten phrase on the paper, the creation of the Movie Maker file, and the opening of the PayPal account either individually or collectively was sufficient to support the conviction.

But the appellate court said there was no evidence Oduwole ever had a plan to disseminate the writing on the paper.

And it said PayPal accounts and Movie Maker files weren’t specially designed for unlawful purposes.

Finally, the court found no evidence Oduwole targeted anyone in whom he intended to instill fear. The panel didn’t mention a fake name on his PayPal account or the ski mask hidden in his car.

The panel concluded the evidence merely showed activities consistent with a variety of scenarios. It reversed Oduwole’s conviction.

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  • Meet the Editor

    Claudine McCarthy
    Editor

    Claudine brings two decades of extensive and varied experience in journalism and publishing to Student Affairs Today. An award-winning editor, Claudine keeps up with the ever-changing world of student affairs by staying in close contact with experts on various hot topics and by attending professional conferences
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