February 13, 2013

Internal Investigations at Educational Institutions: 10 Key Points

Holland & Knight Alert
Daniel I. Small

Knowing how to properly conduct internal investigations is becoming essential in academe. From the Freeh Report on the Penn State tragedy to more recent incidents and scandals, administrators, trustees and other leaders at educational institutions are continually reminded of the need to respond appropriately and effectively to an ever-widening range of concerns and potential problems. Those in positions of responsibility must be prepared to implement best practices gleaned from experience — theirs and others'. We look here at 10 key points for conducting internal investigations.

  1. Breathe. The triggers for an internal investigation — a whistleblower, subpoena, etc. — can bring on a range of emotions, including anger, fear and frustration. Find the time for thoughtful evaluation, consultation and review of the triggers, the history, the issues and the path forward.
  2. Build. Build the team needed to conduct the investigation, asking the following four questions:
  • Who is in charge? There must be clear responsibility and structure for directing the investigation.
  • Is it best to rely on inside or outside counsel? There are pros and cons to both approaches. Consider which choice would best avoid potential conflicts, which would best provide independence (real and perceived) and which counsel has the necessary resources and experience.
  • Are forensic investigative services needed? Accounting, computer forensics or other specialized expertise may be necessary, but should be retained through counsel to protect the opportunity to assert a privilege against public disclosure.
  • Who represents the witnesses? Consideration should be given to pooling legal counsel and expenses for witnesses to ensure that they are represented appropriately, and taking other steps as needed.
  1. Plan. If you already have a compliance program that includes a written plan for internal investigations, you are ahead of the game. If not, move quickly to develop one that includes a charter from the Board, management or other authority defining the nature and scope of the investigation; a list of critical personnel; key documents; and a detailed account of internal policies and procedures, external regulations and laws. Your program should also consider potential collateral consequences.
  2. Communicate. Deciding whether, when and how to communicate can have a major impact on how your institution navigates treacherous waters. Internally, damaging rumors and speculation can spread fast. It is often important to reach out early within your institution to explain the situation, request cooperation, require preservation of electronic and paper documents, and prepare for government and internal interviews. Externally, consider how and when to communicate with all constituencies (e.g., parents, alumnae, donors, prospective students, leagues, local police and government officials) and with the general public and the media. What can and should be said, and who should say it?
  3. Listen. Investigations are rarely static: they expand or change dramatically with new information. Keep an open mind — be careful of preconceptions and assumptions — and listen carefully to all sources. Don't pigeon-hole and dismiss things too quickly as rumors or speculation — they are often valuable leads, in some form. Be careful not to retaliate against the bearers of bad tidings.
  4. Witness. Develop a plan for who should do what. Interviews and other key steps in the investigation should not be handled by one person. At a minimum, a second team member as a witness results in a better interview and better notes and helps avoid one-on-one situations, which can later become swearing contests that turn counsel into a contested witness.
  5. Document. In an internal investigation, everything is on the record. The standard is simple: weeks, months even years from now, outsiders — whether government, auditors, media, plaintiff's counsel or whoever — will judge the investigation based on the paper record. This is particularly true of interactions with witnesses. Document (almost) everything. (Good counsel can explain what does not need to be documented.)
  6. Follow Up. The decision to begin an internal investigation is a commitment to follow wherever it leads, which can be in unexpected and uncomfortable directions. Witnesses, documents, emails and other electronic media can be full of surprises. One of the worst things an institution can do is to uncover a surprise but then ignore it.
  7. Report. Look to the end. How will the institution report the results of the investigation? Consider who should draft the report, who should deliver it and when. Should there be interim disclosures or just a final assessment? Consider the audiences for your report, including management, your Board, auditors, the government, supporters and complainants. Reporting is sometimes required, but even when it is not, taking the initiative can be an important step in telling the story effectively, limiting damage and controlling or at least slowing the momentum of speculation and misinformation. Accuracy is crucial. Recognize and prepare for the possibility that reporting may trigger what you hoped to avoid: lawsuits, government intervention, negative publicity, etc.
  8. Act. Conducting an investigation is only the first step. It must be followed by meaningful corrective action that addresses the conduct at issue, the individuals involved, the policies and procedures that may have contributed to the concerns, and the changes needed to minimize risks or help prevent recurrences.


Conducting an effective internal investigation is challenging but well worthwhile. When done properly, internal investigations help institutions turn a mirror on themselves. They can lead to new insights and perspectives on best practices, as well as lower legal risks and increase protection for students and employees. For institutions to achieve the best results from this difficult process, it is important to understand and apply these fundamental points.

For more on this topic, Dan Small will be speaking on "Outside Investigations: When to Recommend Them and How to Survive Them," in June 2013 at the National Association of College and University Attorneys (NACUA) annual conference. He will also speak that month on “Internal Investigations in the Post-Penn State Era” at the Society of Corporate Compliance and Ethics (SCCE) Higher Education Compliance Conference.

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