Are Faith-Based Investigations Required to be “Independent”?
What is the legal standard for conducting investigations?
Our boutique regularly does faith-based investigations around the country for Protestant and Catholic organizations (humanitarian orgs, churches, schools, etc.).
Given past abuses by churches and the use of lawyers to engage in cover-ups, there is a bias by some against allowing organizations to conduct investigations with attorneys retained by the organization. In making their objections, advocates make it clear that they want an “independent” investigation.
Independence—a Standard with No Legal Support
Unfortunately, there is no uniform definition or legal standard that such advocacy organizations point to as to what an “independent” investigation means.
Given the lack of agreed-upon definition of "independent," we have heard a variety of definitions for "independent" in the context of faith investigations. We have heard folks identify “independent” to include a variety of factors such as that the investigation:
Be conducted by an outside firm or non-profit with no prior professional relationship with the organization;
Where no payment is made to the investigator by the client;
Where the investigation has to be made public regardless of privacy concerns of individuals involved;
Where the investigation is not conducted by an attorney; and
Where there is no time, geographic for witness limit as to scope.
While this may be a preference some people have, there is no legal basis or governing authority for such a position.
The Legal Standard for an Investigation: Prompt, Thorough and Objective
The legal standard for investigations that actually exists does not instead use the vague term “independent.” Instead, the legal standard for an investigation that exists requires that an investigation be: prompt, thorough, and objective/fair.
The Federal Equal Employment Opportunity Commission and California's Civil Rights Department make clear that a "prompt, thorough and fair investigation" of complaints is needed. (EEOC: https://www.eeoc.gov/employers/small-business/harassment-policy-tips/CA; CA Civil Rights:https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide-1.pdf.)
It is a standard that is taught through the Association of Workplace Investigators (AWI), which is the leading investigation training organization in the country on workplace related investigations. AWI's guideline says, “Guiding Principle: The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation.” https://cdn.ymaws.com/www.awi.org/resource/resmgr/files/publications/AWI-Guiding-Principles-Broch.pdf
While some in the advocate faith-based community argue that an investigation has to be “independent.” Independent is simply not a term used in the law or through the governing organizations focused on harassment/discrimination and workplace investigations. In fact, this is a term that is almost exclusively used in faith communities by advocates.
Attorneys and Internal Investigators Routinely and Properly Conduct Investigations
It bears noting that nothing in case law we have seen states that someone with a professional relationship with an organization cannot, per se, be impartial or objective.
In fact, AWI guidelines say, “Employers may choose to use an internal investigator. In such a case, the hierarchy of the organization should be considered in order to avoid the fact or perception of bias or compromised objectivity.” As such, most investigations are conducted by attorneys, HR professionals or private investigators. See, Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101 (1997) (regional sales manager and personnel manager); Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256 (1998) (HR rep trained by in-house counsel); Jameson v. Pacific Gas & Elec. Co., 16 Cal. App. 5th 901 (2017) (lawyer conducted investigation).
Further, if a conflict emerges as to the people involved, outside lawyer investigators are brought in. In Jameson, the defendant-employer hired an experienced lawyer to investigate a complaint regarding workplace retaliation against an employee who reported safety violations. When the investigator concluded that no retaliation had taken place, the employee attacked the investigation, claiming the process itself had been unfair.
The court underscored that the investigator had extensive experience, had interviewed 10 witnesses and provided reasons for not interviewing several more, and had produced a detailed report with her analysis and conclusions. It also noted the employee had been directed to speak to the investigator early in the process. Even though the investigator had conducted investigations for this employer in the past, the court found she could properly be deemed a neutral party and that her investigation was both thorough and fair. Jameson v. Pac. Gas & Elec. Co., 16 Cal. App. 5th 901 (2017).
As for the notion that an attorney conducting an investigation will create an inherent bias in the investigation outcome, we turn to the rules of professional conduct. Just because an attorney represents a client doesn’t mean an attorney condones a client’s past conduct. Model Rule 1.2(b): “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.”
Attorneys are Duty Bound to Be Candid and Not Engage in Unlawful Conduct
When doing investigations, attorneys are required to be candid with client about bad facts. Model rule 2.1: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”
While there have been bad-apple attorneys that have engaged in cover-ups and furthering of misconduct, those are the exceptions and not the rule. Frankly, it is arguable that those attorneys were engaged in improper and unprofessional conduct. It is clear that attorneys are duty bound not to perpetuate unlawful conduct. Model Rule 1.2(d): “d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”
To further ensure objectivity, engagements with investigating attorneys can make it clear the role of the attorney as conducting an impartial investigation of factual findings. As such, if retained to conduct an impartial investigation, not being impartial would be a breach of the attorney’s ethical duties.
What is a Good Investigation?
It bears noting that, according to case law, what makes good investigations is not focused so much on who conducts the investigation, but the process undertaken. For example, good investigations include:
Promptness. Complainant and relevant witnesses interviewed promptly. See, Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101 (1997) (“textbook investigation”).
Due Process. Respondent was notified of the charges against him and afforded the opportunity to present his version of the incidents. Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256 (1998)
Unbiased Questioning. Questioning is open ended, non-leading to elicit facts. (id.)
Confidentiality to Prevent Undue Influence and Protect Privacy Concerns. Confidentiality protected by conducting some interviews off of the premises or by telephone. (id).
Documentation. Memorialized witness interviews. (id)
Thorough Review of Documents. Documents reviewed. Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101 (1997)
In Casenas, the court described a “textbook example” of how to respond appropriately to an employee’s harassment complaint. Plaintiff Bernadine Casenas alleged that her district manager had sexually harassed her and then retaliated against her by issuing an unfair performance review.
The investigation was conducted by Denis Ison, a regional sales manager, and Barbara Sheiman, a personnel manager.
They interviewed Casenas as soon as she was available, interviewed the district manager, and interviewed the district manager’s other current and former direct reports as well as a manager from a related corporate enterprise.
Five people re-reviewed Casenas’ performance review, including Fujisawa’s president.
Using the company’s statistical data, they found that her rating of “highly commendable” but not “outstanding” was reasonable based on her sales performance compared to other employees.
They further found Casenas’ 7% salary increase was at the very top of the merit increases recommended by the district manager and did not indicate retaliation.
However, Ison and Sheiman concluded that the district manager had engaged in inappropriate statements and actions.
Accordingly, they issued the district manager a formal reprimand and directed him not to discuss Casenas or initiate any contact with Casenas.
Because Casenas declined a face-to-face meeting, Ison and Sheiman issued a letter summarizing the investigation findings and advising her of the actions taken regarding the district manager.
Although Ison continued to respond to additional concerns raised by the employee and met with her personally at length, Casenas refused to accept these findings and resigned.
In affirming summary judgment to Fujisawa, the court described the company’s conduct as “exemplary.”
Even Scripture Makes Clear that Faith-Based Investigators Are Not Disqualified Because of Prior Affiliation
Law aside, to the faith community, it is instructive to review what the Scriptures shows about the first investigation ever conducted.
Luke was a physician and disciple of Paul and Jesus Christ. He was an "insider" but more importantly, a thorough and fact-based investigator who conducted the most important investigation ever conducted— who was Jesus?
He made his process clear, “With this in mind, since I myself have carefully investigated everything from the beginning, I too decided to write an orderly account for you, most excellent Theophilus, so that you may know the certainty of the things you have been taught.” Luke 1:3-4
Guided by the law and the example of the Apostle Luke, we are confident that an investigation can be conducted by an attorney or internal investigator so long as it is a prompt, thorough and objective/fair investigation.
Before joining C+H, San Diego Partner Juan Castañeda spent years in Big Law and with the Department of Justice as a federal prosecutor. Juan has handled investigation for faith-based organizations and corporate clients as well as represented complainants, third party witnesses, and respondents in investigations throughout the United States.
For more information on his background and experience, please visit https://ch-llp.com/about-juan-castaneda.