This is a bigger issue than Christine Blasey Ford and Brett Kavanaugh – rights of alleged victims, rights of alleged wrongdoers, witness credibility, evidence, burdens and presumptions, and due process in a time of 24/7 argument, opinions and accusations

I am forwarding the following post from my blog http://auditcommitteeupdate.com

This is a bigger issue than Christine Blasey Ford and Brett Kavanaugh – rights of alleged victims, rights of alleged wrongdoers or perpetrators, witness credibility, burdens of proof, presumptions, veracity of evidence, etc., are all needed in this time of 24/7 social argument, opinions and accusations – due process

For the most part discussions about due process are significantly lacking in this time of 24/7 social argument, opinions and accusations. And as a result, what you end up with are largely subjective arguments and opinions, based sometimes on evidence that appears solid but often based on incomplete facts or assertions, speculation, hyperbole, misinformed or uninformed or unqualified speakers or storytellers, or constructive misrepresentations or fraud.

Whereas, and for good reasons, there are rules to be followed as guideposts in a court of law, clearly that is not true in the case of 24/7 social argument, opinions and accusations. This would be a good time for renewed emphasis on rules and techniques for debate, and legal rules of evidence, burdens of proof, presumptions, rights of alleged victims and rights of alleged perpetrators, in addition to professionalism in journalism (such as the Society of Professional Journalists Code of Ethics  https://www.spj.org/ethicscode.asp).

For example, as general principles:

1.  An alleged victim has to prove his or her case the specified claims of wrongdoing with credible evidence;

2.  An alleged wrongdoer or perpetrator is entitled to know the specific claims and evidence that are asserted against her or him;

3.  An alleged wrongdoer or perpetrator is presumed innocent of the claims made, and is entitled to present her or his case and defenses to the specific claims with credible evidence, and to present evidence to rebut or impeach the alleged victim and his or her specific claims and evidence (and yes, the alleged wrongdoer can become a victim if the allegations made are unfounded); and

4.  Unless there is a law or legal principle that switches the burden of proof, the standard is that the alleged victim is the party who is first required to establish his or her case and specific claims with credible evidence, and, generally, an alleged wrongdoer or perpetrator is not required to establish her or his case or defenses to the specific claims until the alleged victim first sustains his or her burden of proof.

If a party, including an alleged victim or an alleged wrongdoer or perpetrator, presents weaker or less satisfactory evidence when it is within the power of that party to produce stronger and more satisfactory evidence, there is or can be a presumption or an inference that the evidence offered should be viewed with distrust.

In addition to the actual evidence presented (testimony and documents), the credibility of witnesses and evidence (testimony and documents) is of key importance.

See, for example, California Evidence Code §780:

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of her or his testimony at the hearing, including but not limited to any of the following:

(a) Her or his demeanor while testifying and the manner in which she or he testifies.

(b) The character of her or his testimony.

(c) The extent, including causes and symptoms, of her or his capacity or impairment to perceive, to recollect, or to communicate any matter about which she or he testifies – including, for example, the passage of time since the date of the alleged incident, and, in most situations, evidence of a witness’s mental or emotional stability or instability.

(d) The extent of her of his opportunity to perceive any matter about which she or he testifies.

(e) Her or his character for honesty or truthfulness or for dishonesty or untruthfulness.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by her or him that is consistent with her or his testimony at the hearing.

(h) A statement made by her or him that is inconsistent with any part of her or his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by her or him.

(j) Her or his attitude toward the action in which she or he testifies or toward the giving of testimony.

(k) Her or his admission of untruthfulness.

See also Federal Rules of Evidence Rules 402, 608 and 613.

The failure to report an alleged occurrence or to communicate about an alleged occurrence also could imply that an event did not occur or occurred differently and could in that manner attack the witness’s credibility and truthfulness; however, generally the opportunity exists to explain the failure to report or to communicate about an alleged occurrence, and that failure does not create a presumption or an inability to testify, unless, perhaps, there is a requirement that the witness report the occurrence, which in that instance, also could present a per se violation of law. 

Thanks for reading. David Tate

 

 

 

If I was a Special Independent Board member – what I would want The Independent Investigation Summary of Findings re Urban Meyer and AD Gene Smith to address in greater detail:

This is a follow-up to my August 23, 2018, post which included links to The Independent Investigation Summary of Findings and additional personnel file documents.

I have now had an opportunity to further review the 23-page The Independent Investigation Summary of Findings. If I was a member of the Special Independent Board Working Group, the following are issues that I would want the Report to address or further address in greater detail:

1.  Establish that each member of the Special Independent Board Working Group is in fact independent. This is an important preliminary issue, which is not addressed. Investigations have been held to be inappropriate or inadequate if special committee members are not independent. The Independent Investigation Summary of Findings indicates that the Special Independent Board Working Group members are: Jo Ann Davidson (Chair), Alex Fischer (a current Trustee), Janet Porter (a current Trustee), Alex Shumate (a current Trustee), and Craig Morford. The fact that a person is a current Trustee should not by itself preclude independence. Independence or lack thereof is based more on relationships and the ability or inability to objectively and independently conduct due diligence, evaluate, and deliberate and make decisions. Thus, for example, it has been held that even social relationships also can impact and preclude independence. And the question arises: independent only from Urban Meyers and AD Smith, or also sufficiently independent from the University? Thus, if a Special Committee member believes that retaining Coach Meyers is really, really important to the success and future of the University’s football program, is that Committee member sufficiently independent for the purpose of determining fault or liability, in addition to discipline?  

2.  The various standards of care or conduct that were required of Urban Meyers and AD Gene Smith.

3.  The applicable burdens of proof that were applied to determine whether the conduct and alleged conduct by Urban Meyers and AD Gene Smith was wrongful or not.

4.  All of the laws, rules and contract provisions listed at I.A. of The Independent Investigation Summary of Findings including:

A.  All applicable Ohio State University policies and procedures;

B.  All applicable Title IX rules;

C.  All applicable NCAA rules;

D.  All applicable Big Ten Rules;

E.  All applicable Ohio State Ethics laws;

F.  Any other state and federal laws; and

G.  All applicable contractual obligations.

5. Evidentiary presumptions that might apply or that could be relevant. Although presumptions generally would not be included in the Summary of Findings, and the investigation is not in or under the jurisdiction of a court of law, sometimes applicable evidentiary presumptions can be relevant or helpful, such as a presumption that may apply if a witness provides less than the best evidence that is available to establish a fact. Additionally, although not generally included in a summary of findings, and tending to be subjective, it might be relevant to consider intangible matters such as the perceived cooperation, transparency, etc., of a witness. 

6.  Was the fact that no text messages existed that were greater than one year old fully investigated, in addition to the recovery of those text messages and the possible change in settings? This issue is potentially determinative by itself. It can be seriously unlawful to destroy or not preserve evidence after it becomes known that a dispute exists or may exist. The Findings evidence that the possible hiding or destruction of text messages was discussed. On the other hand, text were obtained from other devices. Thus, this issue might have been sufficiently resolved, but I could not make that determination from the Findings.  

7.  Conclusions in the Summary of Findings for which greater support might be needed, including the conclusion that Courtney Smith generally was not believed. I would have suggested a different approach based on burden of proof and availability or lack of availability of evidence.

8.  A discussion about how the Special Independent Board Working Group decided the level of discipline? Whereas this issue would not necessarily be an issue addressed by the investigators in The Independent Investigation Summary of Findings, and there need not necessarily be a discussion of this issue by the Special Independent Board Working Group, nevertheless it would have been helpful to see such a discussion.

That’s all for now. Thanks for reading. David Tate, Esq.

* * * * *

Ohio State University Urban Meyer investigation report and other information

I have provided below a link to a Yahoo.com Sports article about the events and investigation relating to Zach Smith, Urban Meyer, and Athletic Director Gene Smith, and a link to the investigation report and other documents provided by Ohio State University (which was also included as a link in the Yahoo.com Sports article).

I find this information fascinating, although I have only had time to skim some of the materials. It is fascinating for the fact that Ohio State included not only the investigation report, but also employment file documents. Although I have no way of knowing if Ohio State has been fully transparent, objective and independent in its investigation, the University certainly has gone to some length.

I am primarily interested in the investigation and the resulting report, and I will be providing additional comments about those matters in other posts.

I do note, however, something from the Zach Smith personnel materials – his 2017 Ohio State Football Assistant Coaches’ Performance Review (Public Record) under the “General” category “#27. Understands and adheres to University core values” has a “4” rating (meets expectations) which should be sufficient in most situations, but specifically does not contain a “5” rating (exceeds expectations), and I am wondering why it is a “4” and not a “5” – from what I have seen of Ohio State University, I would have expected that the University would have required a “5” rating, or included a comment that category #27 will be improved to a “5” rating. But, I’m also looking at this in hindsight which is a view that can be problematic and subject to error or misunderstanding.

Thanks for reading. More to follow. David Tate, Esq. 

Yahoo.com Sports article link:

https://www.yahoo.com/news/top-takeaways-ohio-states-urban-meyer-investigation-report-040137276.html

Link to the Ohio State University website page (provided in the Yahoo.com Sports article), containing documents pertaining to Zach Smith (including his personnel file), Urban Myer, and the report following investigation:

https://news.osu.edu/public-records-related-to-the-investigation-into-allegations-involving-urban-meyer/

 

EEOC press release re opioid medication and alleged disability discrimination

I have pasted below a June 29, 2018, press release from the EEOC. Keep in mind that the press release is only from the EEOC’s view – thus, the assertions in the press release should not be accepted as true, and you would want to see the employer’s viewpoint.

I am posting this press release not because of the facts of the specific situation (because we don’t know all of those facts) but as a reminder that a medication or drug issue might be a legally protected disability depending on the facts and circumstances. In this instance in relevant part the EEOC alleges that (1) the employee had a prescription for the medication, (2) there is no indication that the employee could not perform the job functions of his position, (3) the employee offered to cooperate with the employer, (4) a doctor of the employee offered to provide information, and (5) the employer is alleged to have not followed up with additional investigation (or whether possible reasonable accommodation was possible or even needed). But again, keep in mind that the press release only represents the EEOC’s viewpoint.

Best to you, David Tate, Esq. 

The following is the EEOC’s press release followed by a link to the press release.

Painting Company Fired Worker Because It Regarded Him as Having a Disability Due to His Drug Treatment, Federal Agency Says

HOUSTON – Steel Painters, LLC, a Beaumont, Texas-based painting company, unlawfully fired a worker because it regarded him as disabled and because of his record of a disability, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today. The employee had been dependent on opioid medication in the past but was in recovery treatment.

According to the EEOC’s suit, a Steel Painters manager recruited Matthew Kimball for a journeyman painter position, and Kimball began work on a project for Steel Painters at a Silsbee, Texas plant on Sept. 19, 2016. Earlier this decade, Kimball sustained a shoulder and arm injury that required surgery and extensive physical rehabilitation. During his recuperation, he became dependent on prescribed opioid pain medication. At the time Steel Painters hired Kimball, he had been in a treatment program for over a year taking a dose of prescribed methadone at night after the work day, and he was gainfully employed in a similar painter position.

On his first day on the job, Kimball took the pre-employment drug and alcohol test required by Steel Painters, and he worked through the rest of the week. The following Monday, Kimball learned that the prescription medication he took caused the drug test to come back “positive.” However, after he provided the laboratory with a copy of his prescription and other documentation about his treatment, the laboratory cleared him to work.

Nevertheless, a Steel Painters human resources manager would not permit Kimball to return to his job. She demanded that Kimball have his doctor fill out a specific form and return it to the company. Kimball provided a letter from his doctor that detailed his treatment, and which invited the recipient to contact the clinic’s offices if more detailed information was needed. The human resources representative declared, “I’m not calling nobody,” the EEOC said. Even though Kimball offered to submit himself to a complete physical performed by a doctor of Steel Painters’ choosing, Kimball was told “you don’t have a job […] we have to terminate you.”

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. The EEOC filed suit in U.S. District Court for the Eastern District of Texas, Beaumont Division (Civil Action No. 1:18-cv-00303) after first attempting to reach a pre-litigation settlement through its conciliation process.

The federal agency is seeking a permanent injunction prohibiting Steel Painters from engaging in any future disability discrimination. The EEOC is also seeking back pay on behalf of Mr. Kimball, and compensatory and punitive damages and other relief on his behalf, including rightful-place instatement to a suitable position at Steel Painters.

“Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs,” said EEOC Houston District Director Rayford O. Irvin. “When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction.”

Houston District Office Regional Attorney Rudy Sustaita said, “Enforcement of the ADA is a top priority of this agency. When an employer regards a worker’s impairment as preventing him from doing the job, but refuses to consult with the worker’s treating doctor and assess the worker’s ability to work, the company should expect that the EEOC will enforce the ADA and defend the employee’s rights.”

https://www.eeoc.gov/eeoc/newsroom/release/6-29-18a.cfm

 

 

Some Guidance For Workplace Investigations

The following are some comments as guidance for workplace investigations. We are seeing ongoing news about situations where investigations did not occur, and situations where investigations have been starting or are in progress, and also apparently where situations of alleged possible unlawful activity occurred or might have occurred but was not reported (although in some situations knowledge of possible unlawful activity might had been known). These issues don’t simply reflect on the accuser and the accused, but reflect on the business, nonprofit or governmental entity at issue, and, variously depending on the situation, elected representatives, executive officers, boards of directors and the board committees, general counsel, compliance and ethics professionals, HR, employees, perhaps internal audit and even the external auditor, etc., and throughout the entire organization or entity.

An employer has a duty to take reasonable steps to prevent harassment, discrimination, and unlawful employment practices, and to correct inappropriate workplace behavior. See, e.g., California Gov. Code §12940(k); and 29 CFR 1604.11(d). An employer can be liable for the failure to investigate, at least if there was underlying unlawful activity. And a failure to investigate can be considered ratification of unlawful activity.

In appropriate circumstances on a claim of wrongful termination, the question can become whether the employer acted appropriately and in good faith after conducting a reasonable investigation and based on a reasonable belief in that investigation – in other words, the reasonableness of the employer’s investigation can become the standard by which the employer is judged for alleged wrongful termination liability purposes.

The following are some of the issues and steps to consider or follow when determining whether an employer’s investigation of the conduct and situation was reasonable, and whether the employer had a reasonable belief in that investigation – did the employer or entity:

  • Take the complaint of wrongdoing seriously;
  • Maintain confidentiality of the situation to the extent reasonably possible;
  • Conduct a timely investigation, promptly after receiving the complaint of wrongdoing;
  • Decide and appoint an appropriate sufficiently independent and qualified person or committee to oversee the investigation, and for decision-making;
  • Consider whether the investigator will be someone in-house or from outside the entity;
  • Have the investigation performed by an investigator who is competent and knowledgeable about the relevant issues, and also how to conduct (and evaluate) investigations, investigation techniques, evidence (including, e.g., credibility, admissibility, and whether the evidence or possible evidence is “A” or “B” or “C” evidence), writing reports and opinions, and oral communications and testimony, and also note issues that might be present if the investigation is performed by an attorney for whom attorney client or work product privileges might be claimed – in short, work these issues out before the investigator is selected;
  • Consider legal counsel and possible other assistance needed;
  • Follow appropriate complaint investigation procedures;
  • Listen to and treat the difference sides fairly and equally;
  • Obtain, evaluate and understand the claims that are being made and possible defenses – including, e.g., claims based on a statute or section of law, a regulation, or a rule, and also claims based on some other standard such as any applicable policy, handbook, code of conduct, contract, collective bargaining agreement, etc. that had been enacted or adopted;
  • Provide the accuser with ample opportunity to offer evidence of his or her claims including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
  • Give the alleged wrongdoer fair notice of the claims being made;
  • Provide the alleged wrongdoer with ample opportunity to offer evidence in his or her defense, including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
  • When appropriate, provide and communicate an appropriate means whereby third parties can provide information that is relevant to the issues and the investigation;
  • Have the investigator conduct a thorough investigation, under the circumstances (note that in some circumstances courts have held that the investigation need not necessarily be perfect, but it should be sufficient, reasonable and thorough under the exigencies and circumstances at hand without the benefit of full discovery or a trial);
  • Have the investigator prepare a well-reasoned report and conclusions, supported by and based on objective evidence;
  • Have the investigator report to the decision-making person or committee;
  • Have the decision-maker or committee prudently and appropriately evaluate the claims, defenses and investigation; and
  • Implement progressive discipline if appropriate?

Of course, each situation is different, and for some of the above points the courts and regulatory agencies have provided additional guidance.

Best to you, David Tate, Esq.

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

California AB 2888 – Gun Violence Restraining Orders – Proposed Law Authorizing Employers, Coworkers, And Employees Of Schools To Petition

New California legislation proposes to amended already existing California Penal Code gun violence statutes to also allow, but not require, employers, coworkers, and employees of certain secondary and postsecondary schools to petition a court ex parte or by noticed motion to obtain a restraining order against a person who they believe, upon sufficient evidence, is a threat to commit violence with a gun. California AB 2888 is proposed – it is not yet law – but it is worth noting anyway.

Although the proposed legislation states that the law would not require such an employer, coworker, or employee to petition for a restraining order, the question still arises whether an employer, or a managing agent employee of the employer, or a managing agent employee of the school, might still be required, upon sufficient evidence, to bring or to cause the employer or school to bring such a petition under employer or school duties to make the workplace and school place safe? More to follow if the proposed law moves forward.

The following is a copy of the portion of the current proposed legislation authorizing the bringing of an ex parte petition. Also note that the applicable statutes do provide additional somewhat detailed guidance and requirements, including the required evidentiary burden of proof. A question or issue also might arise whether an employer or person bringing such a petition might have liability exposure for wrongfully doing so or for bringing such a petition that the court then decides to deny.  Best to you. David Tate, Esq.

 

 

Organizational Values: The Most Underutilized Corporate Asset – forwarding from Eugene Dilan/Dilan Consulting and Next Concept HR Association

I have provided below a link to an discussion by Eugene Dilan of Dilan Consulting – the discussion is posted to the Next Concept HR Association (previously NCHRA) website. As you know from some of my prior posts, from time to time I am covering the developments of “culture” as an area of executive officer responsibility, board oversight, and enterprise risk management (ERM), and the involvement of HR and possibly of internal and external audit, social media, compliance, and legal counsel, in addition to other people. Mr. Dilan comments that organizational values guard culture, but that this is an underutilized corporate asset.

A side issue or comment, this week I also attended a seminar discussion put on by the Rock Center for Corporate Governance and the Silicon Valley Directors’ Exchange at Stanford University. The topic was “The Board’s Role in Innovation and Strategy.” It was also a very good discussion; however, the discussions did not directly cover values or culture. But it is clear that there is no generally agreed upon standard or amount of involvement for board oversight of areas such as innovation, strategy, values or culture. In fact, whereas, for example, some boards already have innovation or new technologies committees, but this is not anywhere near a standard fact or situation. And although there has been a fair amount of recent talk about oversight of organizational culture, again there are no generally accepted approaches to that oversight.

Below is the link for Eugene Dilan’s discussion about organizational values from the Next Concept HR Association (HR West Blog) – it is recommended reading – and best to you, David Tate, Esq.

http://hrwest.org/organizational-values-the-most-underutilized-corporate-asset/

And here is the link for Next Concept HR Association – http://www.nchra.org/