Part 5: It Really Is About Confidentiality and Trust in the Investigation

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Well, Brent, you raise some tough questions—what do complainants have the right to know about the progress of an investigation and what is the effect of trust issues with leadership?

First, what do complainants have the right to know? They have the right to know that you are investigating promptly and thoroughly. Letting them know that you are taking the complaint seriously and have begun your investigation is wise.

One of your first interviews should be with the complainant. You would think this would go without saying, but make sure that your assigned investigator reaches out to the complainant. Statements like, “We assigned an ombusdsperson to that complaint, and you could have contacted them,” are not going to play well in litigation (I don’t even need to make this stuff up). The complainant can give you the names of follow-up witnesses as well.

But you’re right—the complainant doesn’t get a full report from you on what everyone said, or have the right to see your notes. The other extreme on confidentiality is that you will be tempted to tell everyone you interview to keep the matter totally confidential. This isn’t a good idea, now that the National Labor Relations Board frowns on blanket confidentiality requirements. You want to analyze confidentiality on a case-by-case basis and determine whether to ask for witness confidentiality for one of these four reasons:

  1. protecting witnesses;
  2. preventing destruction of evidence;
  3. preserving testimony and thwarting false testimony; or
  4. preventing a cover-up. Then document your reasons before requiring or requesting confidentiality.

At the end of the investigation, the complainant should get a brief summary report of your findings, such as whether the complaint was verified, and whether action was taken. Whether the complainant gets any of the details may depend on the nature of the complaint, whether he or she continues to work with the alleged offender, and so on.

Your second point is perhaps more important. How the complainant sees the leadership is a huge part of whether this investigation goes well. If leadership has the reputation of being reliable, of doing investigations promptly and well, and so forth, the complainant (and others) will tend to assume the best. If there is a poor track record, the reverse may be true. This is all about personal relationship.

In your hypothetical, there is already a lack of mutual trust. Tom and Sally are seen as being perpetual complainers. And your mission leader isn’t consistent. He “usually” investigates and doesn’t have a methodical approach, as he investigated “to the best of my ability.” If the complainant doesn’t like his decision, he “talks” to the person. Sounds like some of his previous complainants who didn’t like his decisions even left the mission. Tom and Sally obviously did not have much faith in his findings, as they accused him of cover-up. Would this have happened if he had a more formal procedure in place? Perhaps, but perhaps not.

Disclaimer: not official legal or psychological advice or opinion

Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations