by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry
I often get this question from a faculty member who gets contacted by the Dean of Faculty’s {DOF} office and are told a complaint has been filed against them by a colleague or a student - and that an Investigating Authority {IA} {or some similarly named group - depending on that institutions' rules} has been appointed and will be in contact to get your side of the story. And usually the DOF states the IA will want you to meet with them in a day or two - in other words - right away.
What do you do - besides PANIC? First, get some help. Don’t try to do this alone. I’m not trying to drum up business here. There may be plenty of good non-legal advisors available to you to help formulate a response, but probably your best advisor would be a lawyer who knows something about the Higher Education landscape. Let me start with this admonition: when you build a house you worry over getting a solid/good foundation for the house - knowing that if you don’t lots of problems may well come about after the house is built that could have been avoided. The same principle is true here: consider your response to the IA to be the “foundation” upon which all your story about the complaint against you will be “built.” If you have a lousy foundation, your “house” isn’t going to fare well over time.
Also, be very detailed in your response - don’t assume anything, after all, it takes incredible detail to end up with a well-built house. Recognize that many DOF’s want you to answer all the questions the IA has about the complaint against you, but will often refuse to even give you a copy of the complaint! This is a sure recipe for potential disaster. So rule number one is: don’t answer a complaint you have never seen! Sounds easy doesn’t it? Well, unfortunately it’s way easier to say than to do. That’s when a lawyer may come in real handy for you. The law, even as applied in Higher Education cases, requires that you be given fundamental due process rights - such as to know who is accusing you and what you are being accused of - BEFORE you have to answer anyone’s questions. You would think everyone should know that this must be done and follow the law. Sorry to say - this isn’t often the case. Suffice it to say: do NOT go into a meeting with the IA without seeing the complaint against you first - and days before - just not be given it at the meeting with the IA. If you haven’t seen it and digested it, they will have a real advantage over you and can trap you with their questions.
Rule number two: {don’t go to rule number two until rule number one has been satisfied} be VERY careful what you say in your answers to the IA. Often the meeting with the IA is not recorded and the investigators simply hear your answers and prepare a summary of what you said in their report - and guess what? You won’t get to edit what they write. They may very well write their biases into the summary of what they heard you say! A very good idea is to go prepared to the IA interview with a written response and keep your answers to their questions only within the boundaries of your response you hand them at the meeting. This way you have a decent chance the investigators will not mis-paraphrase an important response of yours.
Why is all this so important? Colleges and universities have been shrinking the amount of due process they give faculty. What is due process? It’s a set of procedures required to protect an accused. It’s also a requirement in the law that shrinks or grows {in the requirements it demands} depending on the circumstances. When it is your job - your professional reputation - on the line, I will guarantee you that you will want a LOT of due process. As I said though, the trend is to give you less due process so that the administration can do what they want with you. They do this planning that you won’t spend the time or money fighting them. And, truthfully, that fight can be expensive and quite protracted - BUT this is your livelihood, your own professional reputation on the line - locally, nationally and even internationally!
Some of my clients want me to jump into court immediately to stop this madness. But the “abstention doctrine” keeps me from doing that. This doctrine, applied by all courts, requires that the administrative process through the college be exhausted first, before being heard in court. The thinking is that courts want to give the employer, the university, the chance to get this right - the resolution of the complaint - before intervening {except in extraordinary circumstances}. This is where it gets difficult because sometimes it isn’t clear to know just what to do. First, you may be IN an extraordinary circumstance that requires court intervention - and may not know intervention is an option. Second, you cannot let limitations periods run on claims against your accusers - because if you do, it isn’t an excuse that you were simply exhausting your administrative remedies, since limitations periods are not tolled - or stayed - just because you are in an administrative process.
Before I close, I want to say a word to complainants who may be the cause for the beginning of an investigation. I have covered this before when I discussed perfecting discrimination complaints with the Texas Workforce Commission Civil Rights Division {TWC-CRD} and the Equal Employment Opportunity Commission {EEOC}. Just because there is an administrative process ongoing in the college, your limitations to file with either the TWC-CRD {within 180 days of the complained of discrimination} or the EEOC {within 300 days of the complained of discrimination} is not satisfied by filing your complaint with the university. To preserve your ability to bring a claim in court later, you must additionally file your complaint within these time limits with these agencies and not wait on the administrative process to be concluded by the IA or the DOF. Additionally there may be other claims that have 2 year statutes of limitations by when an actual lawsuit must be filed to preserve any claim you may have.
Appearing before an IA doesn’t have to spell disaster for you if you will follow a few important guidelines and try to not go it alone. Beginning an investigative administrative process against a colleague may not be all you need to do - it is also important to know the limitations that apply to your claims and file early and often!
Most don’t pour their own foundations to build their own houses - they get help, usually skilled help. Your help need not come from a lawyer - but find someone who can help navigate these challenging issues who understands your options and can explain them so that you can make a decision that fits you!”
“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”
