Investigation Influence on Decision (Response 6/23/2020)

Filed Under: Investigation Report
Question:

We understand that the decision-maker need to make the finding/determination, but we’re wondering if they can be influenced by the investigators, and if so, how much?

  1. Can the investigation report make findings that an incident occurred as described by the complainant, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?
  2. Can the investigation report make a determination that an incident occurred as described by the complainant and that it violates policy, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?
  3. (If not) Can the investigation report make non-binding recommendations about the finding and/or determination, as defined above?
  4. Can the investigator testify about their finding/determination opinions at the hearing? Can they volunteer, or only share if asked?
  5. Can the investigator and decision-maker have off-line conversations about the investigator’s finding/determination opinions outside the hearing, as long as the decision-maker is not bound to follow them?

Where is the line between the investigation function and the decision-making function is really what we are seeking to understand.

Answer:
  1. Can the investigation report make findings that an incident occurred as described by the complainant, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?2. Can the investigation report make a determination that an incident occurred as described by the complainant and that it violates policy, as long as the decision-maker is free to come to their own conclusion on that based on the hearing?3. (If not) Can the investigation report make non-binding recommendations about the finding and/or determination, as defined above?

OPEN Center Response to #1-3:

The Title IX Rule obligates the decision-maker (who must be a different person from the investigator) to reach the determination regarding responsibility, and the decision-maker has an independent obligation to objectively evaluate all relevant evidence. See § 106.45(b)(7), § 106.45(b)(1)(ii). In the Preamble to the Rule at pages 1031-32 the Department states:

The Department does not wish to prohibit the investigator from including recommended findings or conclusions in the investigative report. However, the decision-maker is under an independent obligation to objectively evaluate relevant evidence, and thus cannot simply defer to recommendations made by the investigator in the investigative report. As explained in the “Section 106.45(b)(7)(i) Single Investigator Model Prohibited” subsection of the “Determinations Regarding Responsibility” subsection of the “Section 106.45 Recipient’s Response to Formal Complaints” section of this preamble, the decision-maker cannot be the same person as the Title IX Coordinator or the investigator and must issue a written determination regarding responsibility, and one of the purposes of that requirement is to ensure that independent evaluation of the evidence gathered is made prior to reaching the determination regarding responsibility.

(emphasis added).  Nothing about the Rule prevents a Title IX Coordinator or investigator from making recommendations regarding facts at issue in the context of a formal complaint, the question of responsibility, or the appropriateness of remedies or disciplinary sanctions.  However, a decision-maker—whether an employee of the recipient or an employee of a third party, such as a consortium of schools—is precluded from deferring to these findings or recommendations, and must make their own independent evaluation of the evidence.

  1. Can the investigator testify about their finding/determination opinions at the hearing? Can they volunteer, or only share if asked?

OPEN Center Response:

In the Preamble to the Rule at pages 1055-56, the Department contemplates that an investigator might be a witness:

The Department further notes that § 106.45(b)(6)(i) already contemplates parties’ equal right to cross-examine any witness, which could include an investigator, and § 106.45(b)(1)(ii) grants parties equal opportunity to present witnesses including fact and expert witnesses, which may include investigators.

Note, however, that in the context of a hearing held by a post-secondary institution or on behalf of a post-secondary institution by a consortium or other third-party, an investigator may not testify as to statements made by others, including the complainant or respondent, if the individual who made a statement does not subject themselves to cross-examination. 106.45(b)(6)(i).

  1. Can the investigator and decision-maker have off-line conversations about the investigator’s finding/determination opinions outside the hearing, as long as the decision-maker is not bound to follow them?Where is the line between the investigation function and the decision-making function is really what we are seeking to understand.

OPEN Center Response:

Nothing in the Title IX Rule prohibits an investigator and decision-maker from conversing about the investigator’s opinions or recommendations, so long as such discussions do not interfere or inhibit the decision-maker from making an independent, objective evaluation of all relevant evidence in reaching a determination regarding responsibility. Both the investigator and decision-maker also must not have a conflict of interest or bias for or against complainants or respondents generally, or with respect to an individual complainant or respondent, pursuant to § 106.45(b)(1)(iii).

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