OSA Code Procedures Section 18: Investigation of a Formal Complaint
The investigation is designed to be timely, thorough, and impartial and to provide for a fair and reliable gathering of the facts. All individuals involved in the investigation, including the Complainant, the Respondent, and any witnesses, will be treated with fairness and respect. The investigation will generally include individual interviews of the Complainant, the Respondent, and relevant witnesses. Upon completion of the investigation, the investigator will prepare a final investigative record and an investigative report. The investigative record is a compilation of statements by the parties and witnesses as well as other evidence gathered by the investigator. The investigative report explains the scope of the investigation and summarizes the information gathered. The investigator does not make any determination or recommendations as to responsibility, other than to make an assessment, in consultation with the Director, as to whether there is sufficient evidence for the case to proceed. The absence of an element necessary to determine responsibility for a subject charge is sufficient cause to decline to proceed on that charge. In the event of a hearing, the final investigative record and report become part of the hearing record.
The Complainant and the Respondent will have an equal opportunity to participate in the investigation, including an equal opportunity to be heard, submit evidence, and suggest witnesses who may have relevant information. Specifically, during the investigation, each party will have the opportunity to:
- be interviewed by the investigator;
- review their own interview statements prior to the statements being distributed to the other party and included in a draft investigative record;
- provide evidence to the investigator;
- suggest witnesses to be interviewed by the investigator;
- propose questions to be asked of witnesses and the other party; and
- review a draft investigative record and comment on it, in writing, before the investigator finalizes the record and prepares an investigative report.
At the hearing, the Hearing Panel will rely upon the final investigative record and report as well as any additional statements and information provided to the Hearing Panel pursuant to the procedures set forth below.
The investigation will be completed as expeditiously as possible, commensurate with its complexity. The investigator will establish reasonable time limits for the various stages of the investigation, including meetings and deadlines for any submissions or responses, and the parties shall comply with these time 689 limits. The parties may request extensions that may be granted, if reasonable, at the discretion of the investigator. Extensions granted to one party will be granted to the other party. Delays simply to prolong the process will not be permitted, and failure to meet deadlines will generally result in forfeiture of a party’s ability to participate in that aspect of the investigation. Subject to a demonstration of compelling circumstances as described in section 16.1, a party who declines or fails to participate in a meeting or interview, provide evidence, or suggest witnesses, waives their right to do so upon the issuance of the final investigative record and report.
The parties have the opportunity to request in writing witnesses they would like the investigator to interview and offer questions and topics they would like the investigator to ask of witnesses, themselves, and/or the other party. The investigator has the discretion to determine the relevance of any proffered witnesses or questions, and, accordingly, the investigator will determine which witnesses to interview and questions to be asked. In general, the investigator will not consider as relevant witnesses who are offered solely for the purpose of providing evidence of a party’s character.
Investigative interviews with the parties and any witnesses may be audio recorded a t the discretion of the investigator. At the start of a recorded interview session, the investigator will inform an interviewee that the session is being audio recorded. Parties and witnesses will receive copies of any audio recordings of their own interviews. The parties will be provided with access to listen to any audio recordings of other witnesses and/or other party interviews upon request during business hours at a secure and private campus location, with access facilitated by the Director. All persons being interviewed, including the parties, are prohibited from recording interviews.
In the event of a failure rendering an audio recording of an interview inaudible in whole or in part, the investigator will either reconstruct the interview with input from the interviewee or re-conduct the interview, as the investigator deems appropriate. The reconstructed interview statement will become part of the investigative record. A recording failure will not constitute grounds for appeal.
The investigator will gather relevant available evidentiary materials, including physical evidence, documents, communications between the parties, and electronic records and media as appropriate. The parties may request in writing the evidentiary materials they would like the investigator to obtain. The investigator has the discretion to determine the relevance of any requested materials, and, accordingly the investigator will determine what materials to seek to obtain.
If the investigator determines that expertise on a topic will assist the Hearing Panel in making its determinations, upon the investigator’s own initiative or at the request of a party, the investigator may include in the investigative record medical, forensics, technological, or other expert testimony and materials (such as writings and recordings) that the investigator deems relevant and reliable. The investigator has the discretion to determine the relevance and reliability of any expert testimony and materials, and, accordingly, the investigator will determine what, if any, expert testimony and materials will be included in the investigative record. Requested expert testimony or materials not included in the investigative record will not be considered by the Hearing Panel. The results of polygraph tests and other “lie-detection” techniques are inadmissible in proceedings under these procedures.
At the request of a party or witness, the investigator during the investigation or the Panel Chair during the hearing process, may exclude and, as necessary, redact the following content:
- Past Findings: During both the investigation and any hearing to determine responsibility, participants in this process may request exclusion of evidence of their own past school disciplinary findings. Such past findings may be probative and thus admissible, however, to demonstrate a pattern of misconduct, at the discretion of the Panel Chair. Such findings are regularly admissible at the stage of the hearing for determining sanctions.
- Mental Health Treatment and/or Diagnosis: Generally, during both the investigation and any hearing to determine responsibility, participants in this process may exclude evidence of their own mental health diagnosis and/or treatment. However, any party who wishes to have the Hearing Panel consider mental health information that the party considers favorable and relevant to their case, must voluntarily share such information with the investigator for inclusion in the investigative record.
- Sensitive Personal Identifying Information and Medical Records: Throughout these proceedings, sensitive personal identifying information, such as Social Security numbers and irrelevant 749 information contained in medical records, will be excluded.
Exclusions and redactions will be noted and thereby become part of the investigative record. Excluded or redacted content not included in the investigative record will not be considered by the Hearing Panel. The parties should make all requests for exclusions and redactions to the investigator during the investigation prior to the issuance of the final investigative record and report.
Upon completion of the investigation, the investigator will prepare and provide to the parties an electronic or hard copy of a draft investigative record. The investigative record is a compilation of the investigative interviews, evidentiary materials, and expert testimony and materials, if any, and includes:
- transcripts (but not audio files) of all interviews by the investigator with the parties and any witnesses, if applicable; and
- copies of any documents, electronic records, and media and photographs or descriptions of physical materials collected during the course of the investigation and not excluded from the investigative record under these procedures.
The parties will have five (5) business days to review the draft investigative record and submit in writing:
- comments about content, including requests for redaction;
- requests for additional meetings with the investigator; and
- requests for the investigator to conduct further investigation or questioning.
The parties may request extensions in the review period that will be granted, if reasonable, at the discretion of the investigator. Any extension granted to one party will be granted to the other party. Delays simply to prolong the process will not be permitted and failure to make submissions within five (5) business days or any approved extensions will result in a forfeiture of the right to do so later.
The parties’ written comments and requests will become part of the final investigative record.
The investigator has discretion whether to conduct any additional requested meetings, interviews, or questioning.
The investigator will issue a final investigative record and an investigative report. In the report, the investigator will explain the scope of the investigation and summarize the information gathered during the investigation. At their discretion, the investigator may identify contested and 785 uncontested facts, highlight inconsistencies, credibility issues and observations and address relevancy of evidence. The investigator will not render an opinion on responsibility, other than to make the determination as to whether there is sufficient evidence to proceed to a hearing.
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