By Jason Abel, JD
“The pessimist sees difficulty in every opportunity. The optimist sees opportunity in every difficulty.” —Winston Churchill
The weight of undertaking an internal investigation is one that most public safety managers would understandably wish to avoid. Fraught with possible legal, human resource and public relations concerns, internal investigations have the potential to not only alter the career trajectory of the employee or employees under investigation, but may also affect their respective families and the organization as a whole.
Mindful public safety leaders can not only prepare in advance for investigations that may have to be undertaken within their own organizations, but use findings to improve an organization moving forward.
1. Set your organization up for success before investigations are necessary
Preemptive planning for investigations requires leaders to have an accurate picture of different internal and external factors. An organization’s culture is one of the most important factors in its success.
- Does your organization promote learning through just culture?
- Are there clear and understood expectations for members of your department on and off duty?
- Are officers quick to assume blame or place it on others?
- Is doing the right thing supported in scenarios that are gray?
Peter Drucker, considered by many to be the father of management thinking, said “Culture eats strategy for breakfast.” Is your department’s culture a liability or asset when it comes to creating situations that give rise to investigation?
Successful leadership also must realize the importance of effective policy drafting not only with respect to how prospective policies may be implemented or followed, but how these policies may affect employees and the organization with respect to potential investigations.
- Are your organization’s policies vague or draconian?
- Do they give providers room to operate with prudent judgment, or do they leave them in ill-defined situations with muddled guidance?
- Do policies that are authored in a discretionary tone need to be altered to reflect a ministerial posture (EtCO2 monitoring may be used in respiratory distress patients vs. EtCO2 monitoring shall be used in respiratory distress patients)?
Leadership must also have a clear understanding of the laws, regulations and pertinent labor contracts that affect workplace investigations. While some matters may be discretionary with respect to initiating an investigation, matters related to harassment, discrimination, retaliation or abuse claims should always be promptly and thoroughly examined.
2. Have a plan to implement when investigations are required
Having a plan that outlines the basic framework of the investigation process affords proactive leaders more time for decisions and policy improvements. In addition, affected personnel are afforded a prompt, yet thorough investigation when leadership has built the basic infrastructure to accomplish fact-finding tasks.
Having access to legal professionals, human resources professionals, medical direction and subject matter experts better ensures leadership and affected personnel are part of a thorough, objective and unbiased investigation. Coordinating a plan of investigation with these resources will better ensure investigations are conducted in a manner that respects not only the integrity of the investigation, but also the rights of the individual under investigation.
Public employees are afforded basic rights under the Fifth and Fourteenth Amendments with respect to limits on self-incrimination and due process. The rights of public employees with respect to compulsory self-incrimination were further clarified in 1967 with the U.S. Supreme Court’s opinion in Garrity v. New Jersey. Between the subsequent changes to Garrity Rights and the more recent trend of state legislatures adopting Public Safety Bill of Rights legislation, legal counsel familiar with controlling state and federal caselaw is a vital asset.
Finally, leadership should have the ability to quickly retrieve any pertinent data, such as electronic patient care records, vehicle telemetry, department mobile device data, and department medical equipment. Finally, have a plan for how to conduct interviews. An unaffiliated, third party legal counsel knowledgeable in fire and EMS operations may provide the most objective means of obtaining testimony.
3. Be objective and consistent
Objectivity with respect to workplace investigations starts with a clearly defined method for complaints to be reported. Employees that bring forth multiple complaints should be afforded the same level of respect and objectivity as an individual bringing forth matters for the first time.
Consistency and objectivity from investigation to investigation is critical, as both aspects influence not only the credibility of the investigation, but also prior workplace investigations. While maintaining consistency from one investigation to the next is crucial, leaders must know when to apply non-quantitative analyses to a problem. Former Secretary of Defense James Mattis’ leadership teachings note that leaders who apply non-quantitative analysis “too early are lazy, and too late are mechanistic.“ Finally, while an investigation must be thorough, accomplishing workplace inquiries must be done in a prompt and expeditious fashion.
4. Applying the findings of workplace investigations
Upon conclusion of any workplace investigation, potential disciplinary actions must be made in accordance with controlling contracts, SOGs, or employee rules and regulations. Such actions must also be in substantial conformity with prior similar incidents so as to ensure uniform application of department policies and expectations. Finally, proactive leadership should consider how to apply the findings of concluded investigations to improving department performance. Are there deficiencies in training, department processes, hiring procedures, or culture that contributed to the matter? If so, how can these factors be improved to prevent future problems?
While workplace investigations can be daunting and bring forth serious consequences for employees and organizations, planning, implementing proactive policies, and fostering a culture of excellence within your organization can ensure future workplace investigations proceed as smoothly as possible.
Read next: It’s coming from inside the house: Internal intentional misconduct in public safety
About the author
Jason Abel, JD, is a project consultant with the public safety consulting firm Fitch & Associates. In addition to a law degree, he holds a Master’s degree in Healthcare Administration and is an active EMT-P. Contact him at jabel@fitchassoc.com
