Kevin’s practice has always included investigative work of some form, whether it was helping his clients determine the facts necessary to respond to an internal or an external complaint, or helping Dartmouth respond to a concern raised by or about an employee, including faculty members and coaches, or a concern raised by or about a student, balancing the needs of the reporting person and the responding person. The #metoo movement has renewed the focus on an organization’s obligation to properly respond to allegations of illegal and/or inappropriate conduct, particularly by leadership. The cases at the center of the #metoo movement often illustrate the critical role an objective, balanced external investigations could have had: An effective investigation, which provides due process to all involved and culminates with an outcome that clearly sets for the facts found in understandable language protects the interests of the reporting person and the responding person and allows an organization to promptly and effectively respond to credible allegations and defend itself from allegations proven to be not credible.
Kevin’s clientele included family-owned businesses, publicly traded companies, and an Ivy League institution. At Dartmouth, Kevin was the in-house attorney responsible for responding to employment related matters, including allegations of misconduct. In addition, he was an important part of the team that responded to reports of sexual misconduct, including assault, involving students as the reporting and responding parties. Throughout his career Kevin has been involved in preparing for litigation, in state and federal courts, before administrative agencies and before arbitrators. This work has helped Kevin understand how to conduct a thorough, credible investigation that leadership can rely on to respond to complaints. Kevin has used this understanding to conduct and supervise several high-stakes investigations, producing effective, reliable results.
Misconduct in the workplace is a significant distraction to efforts of reliable, hard-working employees to do their jobs and creates reputational and legal risk for an employer. An effective external investigation can promptly identify misconduct and the responsible party and allow management to take responsive action. In some cases, a prompt external investigation can reduce or eliminate legal liability.
Organizations often receive allegations of misconduct attributed to individuals who are associated with the organization. An external investigation may protect the interests of the accuser and the accused and provide the organization with information that it can use to determine how to proceed. Failure to respond to the allegations may leave the organization vulnerable to criticism that is indifferent to the allegations. Similarly, an uninformed response to the allegations may unfairly tarnish the reputation of the accused, leaving the organization vulnerable to a claim that it denied the accused due process.
Institutions covered by Title IX of the Education Amendments of 1972 have an obligation to investigate allegations of sex discrimination in the form of sexual assault and sexual harassment. An external investigation by an investigator trained to conduct trauma informed interviews can be an effective tool to meet this obligation. In addition, recently courts have recognized claims by disciplined students that they were denied due process when complaints leading to discipline were investigated by school staff who also served in an advocacy capacity. Institutions that rely on external investigations may avoid claims that an internal investigator was biased against one party or another.
Misconduct, including abuse of authority and sexual assault, by coaches, players, and medical staff in sports programs are unfortunately commonplace and has tarnished programs at the Olympic, collegiate, secondary and youth levels. Leadership often lacks the expertise necessary to effectively respond to reports of misconduct. In additional, internal responses are often viewed as protecting the interests of the program, rather than the parties involved. An external investigation can allow a prompt, balanced response to the allegations, protecting the victims of misconduct and the reputation of the program.
Misconduct complaints arising in non-profits can significantly damage the organization's reputation, interfering with its mission and undermining its ability to meet its goals. An external investigation can provide a board with the information it needs to evaluate the allegations and respond to them, without concern that organizational leadership shaped the information shared with the board.
Responding to allegations of misconduct at colleges, universities and private secondary and elementary schools presents unique challenges. In some cases, tenured faculty enjoy protections not normally afforded to other employees. In other cases, conduct which spills over between the relationship the school has with individuals as employees or students creates confusion about what the school can regulate. Furthermore, the concept of "due process" is a necessary component in faculty and student discipline. An external investigation by an investigator familiar with the context in which the allegations occurred can provide leadership with the information it needs to evaluate the allegations and respond to them and can insulate the institution from claims that it is protecting itself about the interests of students or faculty.