Penn State's Selection of Independent Investigator is First Step in Right Direction

Posted on November 22, 2011 by Russell Cawyer

Penn State announced that it selected former federal judge and FBI Director Louise Freeh to lead an independent investigation of all aspects of the University’s actions related to the child sexual abuse allegations that have been reported.  While federal and state (two states) authorities are investigating the allegations, Penn State’s investigation is likely to be more widespread than the criminal investigations as it will also evaluate the University’s governance, controls, protocols and oversight and not just the actions or inactions of school officials.  Penn State’s actions are laudable in that criminal investigations will be designed to prosecute and punish those that have broken the law while the University’s investigation may lead to changes and reforms at the school that will prevent similar kinds of actions from being unreported, undiscovered or unpunished.

I’ve written before about the things an employer should consider in selecting an investigator to conduct an inquiry into employee misconduct.  In selecting an independent investigator in a matter that is of such high profile and subject to intense media scrutiny, it is important that the investigator be truly independent.  While some have already questioned Freeh's independence, according to Penn State, the scope of Freeh’s inquiry “will be expansive, and he is free to take his work to whatever conclusions he deems appropriate. No one at Penn State will be exempt from this review, including the Board of Trustees itself.”

 

Penn State’s decision to appoint an independent investigator like Major League Baseball’s appointment of George Mitchell to investigate the use of steroids in baseball in 2006.  However, Penn State’s inquiry purports to be potentially unlimited in scope and goes further than in that no one will be exempt from Freeh’s review (although some current and former employee may refuse to cooperate for Fifth Amendment or other reasons and the University will have little control over those former employees that decline to participate).  Mitchell, during the time period he investigated baseball, had close ties to the Boston Red Sox; initially limited his inquiry to the time period after 2002 when baseball began testing for steroids; was limited to player’s voluntary cooperation in providing interviews and information; and he (and MLB) had no authority to discipline players (of course where were represented by a union).  That Penn State’s independent investigation appears to provide Freeh with unfettered access to university information and officials and the pronouncements that Freeh may take the investigation wherever it leads shows the University’s commitment to uncovering the truth.  

 

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EEOC and Law Firm go Toe-to-Toe over Administrative Subpoena for Law Firm Documents in Sexual Harassment Investigation

Posted on March 8, 2010 by Russell Cawyer

When investigating a charge of discrimination, the EEOC has the authority to issue administrative subpoenas requiring employers to produce relevant information.  This power, however, is rarely used because most employers voluntarily comply with the EEOC's reasonable requests for information. 

In San Antonio, a law firm respondent is testing the EEOC's powers to require information be produced via administrative subpoena.  In EEOC v. Malaise law firm, the EEOC is seeking the names and addresses of employees working for the law firm as potential witnesses.  The request was made in connection with the Commission's investigation of a claim of sexual harassment.   The firm responded that this information was not relevant, constituted a fishing expedition, and invaded the privacy rights of nonparties   The EEOC persisted in its efforts to obtain the information and ultimately issued an administrative subpoena to the firm.  The law firm filed objections to the subpoena which the EEOC overruled (Yes, the EEOC gets to make the rulings on objections made to its subpoenas).  The law firm still failed to comply with the subpoena and the EEOC filed a Petition to Enforce the subpoena in the U.S. District Court. 

The interesting part about the fact the EEOC had to go to court to get this information is that the Commission's court filing shows some insight into how it goes about investigating charges of discrimination. You can read the EEOC's Petition to Enforce here and the affidavit in support of the petition (with all of the fun-to-read exhibits containing the charge and letters between the firm and EEOC)  here.

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