Faculty Investigations: A Statewide Concern
Around the state, community college faculty unions are experiencing an unprecedented rise in investigations of their members, resulting from accusations of harassment and discrimination. At last month’s meeting of the California Community College Independents (CCCI), CCCI attorneys described startling facts about these investigations.
Bob Bezemek, who along with his law firm partner, David Conway, provides legal advice to the FA, explained that over the last few years, faculty investigations have gone from being an occasional part of their work to “consuming the biggest amount of our time.” As one of the foremost authorities on public employee law, Bezemek advised that these experiences are a telling indicator of emerging statewide trends in faculty working conditions.
Bezemek and Conway described the startling reality of investigations that often begin with unsuspecting faculty members finding themselves suddenly placed on administrative leave. Keys are collected, offices are locked, online accounts are blocked, and the faculty member is often banned from campus and from communicating with colleagues. Though untenured and part-time faculty would seem to be more vulnerable to such treatment, it appears that tenure provides no significant protection when allegations of harassment or discrimination are made.
In cases where a district resorts to placing faculty on administrative leave, they generally do so almost immediately after the accusation is received. That is, they do so before facts are collected and sometimes even before the accuser has been interviewed. In fact, the attorneys explained that it has become routine for districts to place faculty on leave even when the accusations come from a third party.
Most often it appears the faculty member is placed on paid leave, though instances of unpaid leave are not uncommon. In one particularly egregious case, an unfortunate faculty member was placed on unpaid leave for eight years. In the end, the courts found in favor of the faculty member and the district was forced to provide eight years of back pay. It is hard to imagine getting by for eight years without pay, let alone living with the uncertainty such circumstances generated.
During an investigation, the district will at some point in time seek to interview the accused faculty member. According to Conway, some districts deny faculty the right to see the complaint or even know the details of the accusations against them before being interviewed. The interviews are often conducted by attorneys or private investigators who use techniques designed to lead the accused faculty member to incriminate him or herself.
What the heck is going on here!?
We don’t have a good answer for this, though some of our CCCI colleagues argued that there is a tendency on the part of leaders from different districts to align their practices with those of other districts. They point to regular, statewide meetings of organizations that bring community college administrative leaders from around the state together to discuss “best practices”—including organizations like the Chief Executive Officers of the California Community Colleges (CEOCCC), California Community College Trustees (CCCT), Association of Chief Human Resource Officers (ACHRO), and Association of Chief Business Officials (ACBO). Not surprisingly, a frequent topic at these meetings involves methods of averting protracted legal problems like discrimination complaints that bring negative attention to a college. The end product, some claim, is an example of “groupthink.” Of course, the approach they take is undoubtedly fueled by the litigiousness of our culture resulting in many community college districts becoming more concerned about preventing legal payouts than about the reputation and well-being of the accused faculty member.
Surely this can’t be legal?
Bezemek and Conway contend that community colleges are overreacting and that placing faculty on leave should occur only when a “legitimate and weighty” reason for doing so exists. Additionally, the barring of faculty from campus during an investigation is highly questionable as college grounds are public property. It is also important to realize that districts do have a legal right to bar faculty from their offices, computers, and email accounts during an investigation, and they can search all of these as they wish.
Also note that as a member of the CCCI organization, the FA is contributing to the effort to pass legislation that would provide faculty with additional legal protections. Assembly Bill 1651, which is co-sponsored by CCCI, would ensure that faculty under investigation are provided details of the allegations prior to an interview. It would also raise the legal standard under which a district could place faculty members on paid leave. Thanks largely to the CCCI, this legislation has made it out of committee and onto the Assembly floor. While there is no guarantee of passage, this is an important first step in providing some protections for faculty facing an investigation.
Are Faculty at MCC Being Investigated?
The FA has been involved in three separate investigations over the course of the current academic year. Our district leadership has informed us each time that there has been an investigation and let individuals under investigation know how to reach FA leadership. While we have not received all of the information requested prior to interviews, we have nonetheless been able to effectively represent our colleagues. Thanks to those who financially contribute to the FA, we have been able to assist faculty members under investigation, providing them with representation during interviews and with advice from our attorneys. We maintain strict confidentiality so there is little more that we can say about these cases, but we are pleased to be able to say that we have provided critical assistance that helped our members get through very challenging times.
What Should I Do If I Find Myself Under Investigation by the District?
The attorneys emphasized that a faculty member has the right to representation during an investigation process and that faculty should immediately consult with the FA for assistance.
Your FA leaders—in particular your ombudsperson and your president—have had extensive training in assisting faculty under investigation. Furthermore, as FA leaders we have legal rights not afforded to others in representing MiraCosta faculty. The FA is entitled to “relevant and necessary” information from the district concerning any investigation of those we represent (all full-time faculty), and an FA representative can be present during faculty interviews. The information received not only allows us to help prepare accused faculty members for investigatory interviews and obtain proper legal advice, but it also allows us to identify and address patterns of accusations that may emerge.
It is difficult to imagine receiving the notification that you are being placed on administrative leave due to a complaint that has been alleged and must be investigated. However, know that you have a strong faculty organization ready to assist you through this most distressing time.
For More Information:
During fall Flex Week, we will facilitate a workshop to provide more information on investigations and other situations in which the FA can provide faculty with assistance.
MiraCosta’s Board procedures for addressing harassment and discrimination complaints are found in AP 3435: http://www.miracosta.edu/officeofthepresident/board/downloads/3435AP-DiscriminationandHarassmentComplaintsandInvestigations.pdf
For more on the CCCI’s efforts to reform investigative practices, see: https://legiscan.com/CA/text/AB1651/2017
All Articles in the May 2017 Newsletter: