(Regarding OIE’s priorities in
investigations,) that’s a little bit
of a difficult question because I
would say our priority of course
is always to address all of the
matters, right. And as quickly
as possible, which is difficult to
do, especially as we’ve had really
significant increases over the last
couple of years and the number
of reports that we’ve received,
and to do them again in that
fair and appropriate way, make
sure that people are supported.
We are not advocates; we’re
neutral, so we’re not advocates
for anyone, but making sure that
people do have the information
and the ability to connect with
resources that they might need
for support. And then at the same
time, of course, when things
come in, we have to assess things
like, is there an immediate safety
threat? What is the impact on
our community? Is there a risk of
ongoing and continuing harm to
members of the community?
And so we have to look at
that and assess those things.
So of course, that doesn’t mean
that sometimes things come
in that need a more immediate
response. We’re never wanting
to drop anything or let anything
fall through the cracks or drop
off the plate in order to do that.
But that does necessarily mean
that if something comes in and
it’s an urgent, recent (allegation),
there might be an immediate
safety issue. We need to drop
everything we’re doing to call
the police. We might need to
reach out to someone and make
sure that there are appropriately
connected with officers at other
places pretty quickly. There’s
sometimes
some
actions
or
investigations that we need to
move forward because we need
to address potential ongoing
issues.
Jeffery Frumkin: I think we
spend… an appropriate amount
of time in the initial assessment
of the complaint that comes in.
Oftentimes, there’s a third-party
person who’s reporting it. And so
we try to get in touch with the
person that it’s about. They may
or may not want to talk to us.
We still have to go through the
same kind of assessment that is,
is there something that needs to
be looked at further either from
a safety standpoint or from a
policy violation standpoint? So
it’s not as “clean” as, “I feel that
I have somebody has violated
the policy against me and I’m
filing a complaint.” Oftentimes
a complaint comes much farther
down in the process. But yet
there is still work being done
trying to get to that point.
TMD: On campus, you’re
mainly associated with sexual
misconduct
investigation
— that’s where most of the
conversation is. What else does
OIE do?
ES: So the only student
cases
that
we
address
are
the sexual and gender-based
misconduct. But we also do
all of the discrimination and
discriminatory
harassment
complaints related to faculty
and staff. So that would mean
any protected class identified
under
the
University’s
nondiscrimination policy: age,
race, color, religion, national
origin, disability, veteran status,
height, weight, marital status,
all of those protected classes
that are identified if someone
has … all of those things … then
those would be things that we
would look into. And just like
with the student sexual and
gender-based misconduct, that
might mean an investigation.
Sometimes
we
do
climate
assessments
of
particular
areas … if a staff member files
a grievance through the staff
grievance process, they could do
that instead of filing a complaint
with OIE, particularly if they
have
other
concerns
that
might not relate to one of those
protected classes.
TMD: Can you describe the
process once a claimant or
complainant files a complaint
or claim, specifically noting
this increased use of adaptable
resolutions?
The Daily created a flow
chart
summarizing
Seney’s
explanation of OIE’s process.
[insert flow chart]
JF: And how many of these
have we actually been able to do?
ES: One of them has been
completed so far.
JF: So it’s that longer process
as well at the court order last
October.
ES: Well, right. It wouldn’t
generally take that one, but of
course, because we had cases
that were open at the time that
we’ve had to revise the policy
and the court had ordered us to
change the policy including for
those cases.
JF: We had to ramp up for
the new policy. Fortunately or
unfortunately, cases that were in
queue just had to be put on hold
until the new policy was up and
running.
TMD:
How
are
OIE
investigators trained? What is
that process like?
ES: … One of the first things
is to spend some time looking
at case files and reading reports
and going through how an
investigation happens, reading
what the analysis is and why,
going to talk to the investigator
to talk about any questions, or
what about this piece of it, or
they might agree or disagree
or whatever it might be. At
the same time that they’re
doing
that
to
familiarize
themselves with that in a real
case kind of way. They also will
shadow
other
investigators.
So if parties or witnesses are
comfortable, they would sit in
on interviews, they might help
in preparing those statements
and have someone else, the more
experienced investigator look
over the statement. They would
work closely with investigators
that are already in the office
and the assistant and associate
directors and senior director to
walk through cases.
… Then amidst all of this
we have materials that are
a combination of University
policies, some documents that
we’ve put together outlining
what
the
standards
and
principles
are
behind
these
investigations
and
these
processes,
and
things
like
government guidance and all
of that. So people are getting
a well-rounded expertise in
the legal framework, in the
things that have come from
our particular policies and also
our
institutional
values.
So
this might not be written into a
policy, but an institutional value,
obviously, is we want to treat
people with respect. We want
people to feel comfortable when
they’re coming in to meet with
us and to feel like they’re being
heard and to be heard. So we
want to do those things.
… And then there’s lots of
external sources that we use
for training too when someone
starts out, but also on an ongoing
basis. So things like webinars,
attending
conferences,
attending
trainings.
We
might have someone come in
sometimes
to
provide
some
education and some training
or continuing education on an
area of particular expertise. For
example, we had someone come
in related to intimate partner
violence when that became part
of the scope of the policy. So
that’s a lot of what it looks like
at the beginning, but then that
continues as well.
TMD: Throughout this, is
there any kind of sensitivity
training?
ES: There is — I would say
that’s
woven
throughout
it.
So that’s definitely part of
the written materials. That’s
definitely a strong part of the
conversation that when you’re
sitting in, when an investigator
is sitting in and when they are
taking the lead that the other
staff would be talking about the
more experienced investigators,
the assistant director, associate
director would be talking about
those things … So there’s not a
point where we sit down and say,
okay, now for 90 minutes we’re
going to talk about things to say
and things not to say.
… And typically, I mean,
when we’re hiring someone,
they generally — we hope and,
and this has been the case,
thankfully — want to do this
work because they already know
why it’s important and they
think it’s important for it to be
done well. But that’s still not
something that we would just
assume that everyone knows
or is experienced with. This is
a different, again, people have
come from different educational
and
different
professional
experience backgrounds. … But
that’s definitely something that
we talk about at the very outset.
… This is not my original
thought, so I’ll, I’ll credit it to
our last, our most recent senior
director of Pam Heatlie. She’s
said this more articulately than
I probably will. But this really, I
feel like resonates with probably
everyone in the office, is that
you can do this work. And as I
said, it’s compliancy … and you
can do this work in a way that’s
compliant but not done well.
And it’s really important to us
to not just check the compliance
boxes, but to actually do it well.
So I think that’s actually one of
the very initial conversations
about how all of the interactions
need to go.
JF: The interview process
itself involves a small public
presentation. So we get an
opportunity to see how the
individual is interacting outside
of the search committee setting.
In some cases, it has been very
determinative one way or the
other as to whether or not we
think the person can do more
than just what are the facts.
Because you are dealing with
human beings, and at various
levels
in
the
continuum.
Students or faculty and staff
depending on what the case is,
who have a problem, and they
want somebody to help them
with the problem. And we’re
also dealing with people who
are maybe scratching their head
as to why they’re being called
in there. Plus the witnesses in
between. So yeah, it’s important.
TMD: How do you handle
situations
of
investigators
mishandling cases?
ES: So mishandling cases
could mean any number of
things. So, if a concern is
brought to our attention, and
certainly it’s the case that these
are not pleasant things. So no
one is going to be like, “Oh, that
was a great time. I’m super glad
that I got the opportunity to go
through that process.” No one
on any side of it feels that way,
no matter what. It can be done
the best it possibly can and it’s
still not going to be pleasant.
Having said that, of course we
want to do the best we can to
mitigate the extent to which it is
additionally unpleasant, beyond
it’s
an
inherently
stressful
situation. So all of that is to say
that it is not uncommon that
someone might have a concern
or feel sort of unhappy and that
might be general or it might
be about one specific aspect.
For example, if they felt like
someone said something to them
that was offensive or they didn’t
feel respected in an interaction.
That is definitely feedback that
we welcome and want.
I think it’s really important
for us to have the opportunity
to make something right if we
have made a mistake, and to
learn from, if it’s something
that’s applicable. I think people
have different preferences about
different things and there will
be some things that might feel
bad or someone might think
is inappropriate and someone
else might actually find that to
be supportive and helpful and
vice versa. And having said
that, I appreciate if we can get
that feedback so that we can
know about it and address it.
So when those concerns are
brought to our attention, we
look pretty carefully at what
has happened… If we find that
we have made a mistake in some
way, I think it’s hard to answer
to that sort of globally what
we would do, because I think
it depends on the mistake. So
if we’ve made a mistake that’s
impacted a case, that would
certainly be something that we
would need to remedy in a pretty
tangible way. If it’s more about
something that has happened
where an interaction wasn’t as
comfortable for someone as it
could have been, then I think we
would want to address that, but it
would also depend on what they
would want. Would they like
to have a chance to talk to the
investigator about it and express
how they felt about it? Would
they like to just have a different
investigator? Where are we in
the process? So it really depends
on the specific circumstances,
but I would say I think it’s really
important.
JF: I think I’ve had, since
I
started
back
in
October,
probably four, maybe five, either
complainants or respondents,
a request to come talk to me
about some aspect of the of the
process. Each one has its own
circumstances, but they kind of
fall into two categories. One is
procedurally, the investigator
made a mistake. And then the
other one is they don’t like
the
outcome.
Procedurally,
if an investigator has made a
mistake, the investigator and I
will talk about that before the
individual comes in. I have an
operational
standard,
which
is the truth is as bad as it gets.
If we made a mistake, we’re
going to own up to it and we’re
going to admit it. If it’s had,
as Elizabeth said, a material
impact on the case, we’ll go back
and try and correct that and its
implications as much as possible.
And I apologize. Sometimes that
is all that is necessary. Other
times people decide they want
to complain to others in the
University, that’s fine. We have
those conversations face to face.
And usually the investigator is
in the conference with me. The
other one, the other category
is when they say, well, you just
got it wrong. There’s not much
we can do about that other
than to listen. We’re not going
to re-litigate, to use that term,
unless there’s some new material
piece of evidence or information.
And of course we will take that
and look at it. If somebody has
come in to complain that they
have been sexually harassed
or discriminated in some way
and they’re told that whatever
happened, it didn’t rise to the
level of violating our policy, they
don’t like to hear that.
But that’s a responsibility that
we have is that, is to be clear that
if everything the individual has
said to us is absolutely true, and
yet in our judgment, and there’s
… two or three different levels
of review on this. If everything
the person said is true and yet
it still doesn’t rise to the level
of whatever the standard is in
the policy, then we’re not going
to say that the policy’s been
violated. That doesn’t mean that
what happened to the individual
didn’t happen. Those are tough
conversations to have and we
recognize that.
TMD: In general, so not
counting when you had to leave
cases open while you revised the
policy, what is the ideal timeline
of an investigation?
ES: So we have timeframes
laid out in the policy right now
on a student sexual misconduct
policy for whole, start to finish an
investigation, any sanctions, any
appeals, et cetera. I think that
whole process is 120 days. What
we used to have in the policy has
been 60. At one point it was 45,
which was based on guidance
from the federal government
that they felt that schools should
be able to investigate cases,
sanction if there’s a finding of a
violation and hear any appeals in
60 days.
In most cases, 60 days is not
realistic. And so we have had
that in our policy. We would be
transparent with people up front
that that is absolutely what we’re
striving for. It very well may
not be the case. So now we’ve,
we’ve changed those timelines
to reflect that we haven’t taken
anything out of the process and
we have given people longer
to review (the) preliminary
report and evidence file and we
have this whole extra step of a
hearing. And so it’s necessarily,
it’s going to take longer. And this
is one of the things about the
hearing model. That is what it
is. We try not to have to go to a
hearing model as an institution,
and have a ruling that we have to.
So it is longer than that typically.
And I would say we still have
that conversation at the outset
of speaking to people. It’s really
hard and this is, it’s frustrating
for us. I’m 100 percent sure that
it’s much more frustrating for
the people who are participating
in this not as their job like it is
for us, but because it’s stressful
for them, they’re in it, they’re
in the middle of it, it’s their life
and they’re trying to balance all
of the other things going on in
their life at the same time with
this hanging over their head,
whatever their role in it is.
… But we’re still working on
getting caught up in terms of
staffing resources to make sure
that we can handle the case load
that we have. And you know,
certainly with #MeToo, with
Larry Nassar, I think it’s probably
safe to say that’s contributed
to an increase in case load. So
that’s great. We don’t want to
ever say we have too many cases
right now, so we’ll call you back
in three months and then maybe
you can report then. We’ll take
all of the cases. But then that
does mean that they might all
take a little bit longer. And then
in any given case, there might
be
requests
for
extensions
or law enforcement holds or
unavailability of a witness who
has super critical information or
whatever it might be.
So that’s a long answer to a
short question. The short answer
is we’re always driving for 120
days. It’s often going to be longer
than that. We just try to do our
best to stay within it and be
transparent with people about it.
TMD: How frequently do
you keep the complainants and
respondents updated?
ES: So this is part of, I think
something that’s great about
having the OSCR case manager,
is I think that we will able be able
to really improve and make that
better. So we’ve always tried to
do that sort of regular intervals.
If we said we’re striving for 60
days and it’s getting to be 60
days, then we are going to want
to check in.
There’s
regular
check-ins
throughout the process anyway.
At a minimum because of the
process. So I’m sending you your
statement, I’m sending you the
preliminary report, whatever
it might be. We also check in
at points like, “Spring Break is
coming up, if I have something
for you, are you going to be
available? Just want to let you
know where the case is going,”
all of those things. So we try
to do that pretty regularly and
we also encourage people, they
should feel free to reach out to us,
too, even though we’re trying to
proactively keep them involved.
And having said that, there are
times when you’re investigating
a case where there might be
a long period of time where
you’re talking to witnesses and
you’re working on it every day …
I know I’m working on it every
day cause here I am doing it. I’m
thinking about this case all day,
every day and the parties might
be thinking, why haven’t heard
from her in two weeks, what’s
going on? So we try to stay on top
of that… We do try to encourage
people if they want updates to
check in, but we also, the OSCR
case manager will be doing quite
a bit of that now, which I think
might be helpful.
For
parties’
comfort,
in
reaching out to the case manager
that’s a little bit more removed
from the actual investigation
process, and that also might
create a little more space for
some more regular check ins.
Anyone who’s moving right
through
an
investigative
resolution
or
an
adaptable
resolution,
they
have
this
primary point of contact where
they can say, “I need an interim
measure, I need an academic
accommodation. Where is my
investigation? I have questions
about this process.”
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