Community Associations Update - October 2011

Date: October 17, 2011

Tips on Conducting Internal Investigations - What Every Board Member and Manager Should Know!
By: Tiffany M. Releford, Esq.

An Association employee comes to the Association Manager complaining that he/she is being discriminated against by another employee. A unit owner complains to the Board that he/she is being harassed by an Association employee. How does the Board or the Manager investigate the complaint?

Foremost, the key to investigating a complaint is to be consistent, have a predefined process in place, follow that process, and understand the objectives of the investigation. A good investigator is one that understands the Association's policies, uses discretion and confidentiality in conducting an investigation, and is fair and impartial. The first thing to do is to determine what level of investigation is needed. Is it a matter of calling the affected parties and interviewing them by phone, or is further action required, such as consulting with legal counsel and having counsel conduct an investigation? If you decide no investigation is necessary, document the decision and the reasoning, and inform the complainant of the decision. If the complainant comes back with more information/detail, review the additional information and determine if an investigation should now be done.

In planning the investigation, determine who will investigate, who will make the final determination, and who will receive a final report. Keep in mind the scope of the investigation. Make sure to understand the issues involved and the proper witnesses who should be contacted. After the scope has been determined, strategize how the interviews will be conducted. Be sure to think about the order of the interviews: do you want to interview the complainant first or the accused? Once you have an order in mind, make an outline of questions and start by interviewing those with relevant knowledge, including the complainant.

It is recommended that the interviews be done in a private location if possible; however, it should be made clear to the parties involved who can be present for the interviews. Before the interview, review all the relevant information such as the complaint and documentation supporting the complaint. Make sure that during the interviews, the individuals are given enough details so that they can respond in a meaningful way. However, be general about the complaint so as not to suggest answers to the interviewees and taint the investigation.

Start off your interviews by identifying yourself as the interviewer, explain the general purpose of the investigation, explain the consequences for failure to cooperate, if any, and ask for and obtain all relevant documents and other evidence. While conducting the interview, in addition to listening to what is being said, pay attention to what is not being said. Note the interviewee's tone of voice, demeanor, pauses, silence, hostility, contradictions, and emotional reactions. Sometimes what is said and what is not said help to determine the interviewee's credibility. Credibility may involve whether the story is consistent, if there a bias, or if the interviewee has a hard time remembering the facts. Your notes should state the date of the interview, who was in the room, what is said, and documents that the witness agrees to provide. As an investigator, you should never express an opinion or judgment but should remain objective. In addition, you should also be vigilant during the interview and not ignore new issues that arise during the investigation. It is also important that when interviewing the complainant, you be supportive but remain neutral. Be sure to tell the complainant that you will get back to them with the results of your investigation. Also remember to review your notes immediately after the interview to make sure you clean up any inconsistencies or errors while the interview is still fresh in your mind.

Once you have concluded your investigation you should come to a conclusion. Often, the individual conducting the investigation is concerned about coming to the wrong conclusion. It is imperative to note that you do not have to be 100% certain of your decision after an investigation; however, you do have to take a position that is reasonable based on all the facts. Use logic and ask yourself, does the story make sense? If, after an investigation, there is not enough evidence to prove the complainant's claims, do not infer that the complainant is a liar but state that there was not enough evidence to prove complainant's claim. Remember, the objective of the investigation is to reach a reasonable conclusion, establish a defense to a harassment/discrimination complaint by showing that an investigation was conducted, and defeat any claim for punitive damages.

Lastly, and most importantly, follow up with the complainant to let them know that you have conducted the investigation and what action, if any, will be taken as a result. Keep a written record of what you said to the complainant and when.

Overall, these issues can be complicated, so always ask for advice from experienced counsel if you are unsure.