Investigating Alleged Misconduct by Elected Officials
At Van Dermyden Makus, many of our attorney investigators have experience conducting investigations into allegations of misconduct made by employees against elected officials. These investigations present unique challenges and require special skills to navigate. Elected officials are not employees of a public agency. Therefore, they cannot be compelled by an employer to participate in an investigation into complaints made against them. Nor can they be disciplined by the public agency. Nevertheless, California employers have a legal obligation to take steps to prevent harassment, discrimination, and retaliation against employees. An employer can be held liable for not promptly and thoroughly investigating employee complaints of harassment, discrimination, and retaliation, even when those complaints are brought against an agency’s elected officials. For this reason, it is in an employer’s best interest to retain an independent investigator to investigate the allegations. Further, as a practical matter, most elected officials will choose to participate in the investigation in order to provide a response to the allegations and attempt to clear their name.
Remedial Action. Whether or not any remedial action can be taken against the elected official at the conclusion of the investigation will depend on an agency’s charter, ordinances, or municipal code. Many elected governing bodies set forth procedures for the governing body to censure their fellow elected officials if they are found, after an independent investigation, to have engaged in misconduct. But even when censure measures are not applicable, an employer is still legally obligated to take steps to protect its employees from harassment, discrimination, and retaliation, and must honor that obligation in order to ensure a workplace free from harassment, discrimination, and retaliation. By hiring an independent investigator to conduct an investigation, an employer may be able to take action to protect its employees from mistreatment by an elected official, even though they have no authority to impose discipline against the elected official. For example, the employer may be able to limit the interactions the employee is required to have with the elected official. The employer may also be able to set expectations with the elected official concerning what it considers to be appropriate behavior toward employees. The investigation will also likely allow the other elected officials of the governing body to be aware of problematic behavior by their colleague, and the other elected officials may be able to take action to attempt to stop the behavior.
Sources of Evidence. When conducting investigations into alleged misconduct by elected officials, an invaluable source of evidence for the investigator can be found in records related to public meetings of the governing body. Employees who bring complaints against elected officials often have complaints related to how an elected official behaved during public meetings. Publicly available video recordings of the governing body’s meetings, agendas, documentation attached to agendas, and meeting minutes provide a wealth of information for the investigator to review and analyze. For example, a complainant may allege that they were bullied or otherwise mistreated during a public meeting of a city council. By watching the video recording of the meeting in question, the investigator can make an independent assessment as to whether the complainant’s characterization of the elected official’s conduct is accurate. The agenda-related documents also provide an investigator with extensive information pertaining to the topics under consideration and voted upon by the governing body, which is often directly relevant to the complaint. By accessing publicly available information, the investigator can obtain the most reliable evidence of what occurred during meetings of the governing body and the issues considered by the elected officials, and is not solely reliant on witness testimony, which may not be as reliable or unbiased.
Confidential Closed Session Meetings. An investigator also needs to be aware of the provisions of the Brown Act (Cal. Govt. Code § 54950 et seq.). The Brown Act prohibits local government bodies from disclosing confidential information that has been acquired by being present in a closed session meeting of the governing body to a person not entitled to receive the information, unless the governing body formally authorizes disclosure of the information. Thus, an investigator conducting an investigation into allegations related to discussions that occurred in closed session meetings must confer with the appropriate public agency officials to find out if the governing body will waive the closed session confidentiality privilege.
Potential Public and Media Attention. An investigator must also keep in mind that complaints against elected officials can attract public and media attention. Thus, handling the investigation professionally, with discretion, and in compliance with best investigative practices and applicable laws is essential to ensure a fair and neutral investigation, and to avoid politicizing the process.
If your agency requires an independent investigation into allegations made against elected officials, contact Van Dermyden Makus to connect with one of our many attorney investigators experienced in conducting investigations involving elected officials.
