ILLINOIS PARKS & RECREATION
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Investigations of Employee Misconduct:
Do Them Right, or Be Prepared to Fight... in Court
by James D. Wascher

The president of your board of park commissioners receives an e-mail message from a male lifeguard who works at your park district's swimming pool, charging that a female lifeguard has been sexually harassing him for the past six weeks. He says that her behavior has made working for the park district intolerable, and that he intends to resign and go to your local newspaper if something isn't done immediately. What should the park district's response be? You must investigate promptly.

Here are some things you should know before starting your investigation:

• You may be required to give the female lifeguard notice and obtain her consent before you can conduct any investigation.

• The female lifeguard may be entitled to have a co-worker present when your investigator interviews her.

• If the alleged sexual harassment includes physical contact, the female lifeguard may even have the right to assert her constitutional privilege against self-incrimination ("plead the Fifth") in response to specific questions during the interview.

In order to avoid liability for sexual harassment, an agency must take immediate and appropriate corrective action as soon as it receives a complaint of harassment. Courts agree that a prompt, thorough investigation is usually required. There are numerous other types of employment-related misconduct or wrongdoing, which, if alleged, would also warrant an investigation, including misappropriation of funds, threats or acts of violence in the workplace and alcohol or drug use while on duty.

In some instances, it may be appropriate for an administrator or manager of your agency to conduct an in-house investigation of workplace harassment or other alleged misconduct. Depending on the circumstances, however, an agency may conclude that it is better to retain an outside firm to conduct the investigation, particularly if the complainant or others may have reason to doubt the objectivity or neutrality of the administrator or manager who might be called upon to conduct the in-house investigation.

Finally, your agency might determine that it is necessary or appropriate to request the police or other law enforcement officials to become involved, especially it if is clear that a crime has been committed. One drawback to this approach is that your agency would lose control of how the matter is handled, both substantively and from a public relations perspective. Of course, your agency could — and probably should — still conduct its own investigation, either in-house or through an outside firm, that could proceed in tandem with law enforcement efforts. After all, there is a significantly lower threshold for disciplining an employee than there is for bringing criminal charges, much less obtaining a conviction. •

James D. Wascher is a former Cook County Circuit Court Judge. He currently is on attorney with the law firm of Friedman & Holtz, PC., which is general counsel to 20 park districts in the Chicago metropolitan area. He has conducted independent investigations of alleged employee misconduct.

February 2004 | 27