Ref_4_Guide_to_Conducting_Management_Inquiries.pdf

This guide is developed as a standardized tool and reference for conducting management inquiries into potential misconduct and/or allegations of harassment. Everyone involved in the inquiry process should read, use, and follow this guide when conducting any

Management Inquiry. Questions about management inquiries and this guide’s contents should be referred to Employee Relations (ER). A link to ER contacts is included in this guide.

Guide to Conducting a Management Inquiry

September 2016

Guide to Conducting a Management Inquiry

Table of Contents

Guide to Conducting a Management Inquiry

Introduction What is Misconduct and/or Harassment?

Misconduct

Harassment

What are the critical roles for supervisors, managers, and line officers when making the decision to conduct a Management Inquiry?

Employee Relations Role

Inquiry Official’s roles and responsibilities

Creating a plan

Confidentiality

Collecting available evidence

Preparing for interviews

Conducting the Interviews

Basic interview tips

Open-ended question examples

Tips for concluding the interview

Taking written statements

Preparing written report summarizing findings

The report is finished – now what?

Frequently asked questions

Index

#1- Plan for Conducting Interviews

#2- Management Inquiry Report (Sample)

#3- Management Inquiry Statement (Sample)

Guide to Conducting a Management Inquiry

Introduction

When potential misconduct or allegations of harassment occur in the workplace, it is essential to gather the facts in order to determine an appropriate course of action. Management Inquiries will answer questions such as:

Who was involved?

What happened?

When did it occur?

Where did it take place?

How was it done?

Why did it happen?

By answering these questions, we determine if the potential misconduct or the alleged harassment complaint is substantiated and whether (and what type) administrative or corrective action is necessary.

The purpose of this guide is to explain the required procedures and processes for conducting Management Inquiries when looking into potential misconduct and/or any allegation of harassment. It is important to understand that, while the procedures for conducting Management Inquiries into potential misconduct and alleged harassment are the same, there are specific timelines that must be met for inquiries into harassment allegations.

Required inquiry timelines for harassment allegations are defined in Forest Service Manual (FSM) 1700, Section 1765 – Anti-Harassment. A copy of this FSM can be found using the following link: https://ems-portal.usda.gov/sites/fs-orms/orms-directives/_layouts/15/WopiFrame.aspx?sourcedoc=/sites/fs-orms/orms-directives/Directives_1000/wo_1760_amend_2016-1.docx&action=default.

What is Misconduct and/or Harassment?

Misconduct

Misconduct typically involves any violation of workplace standards, rules, regulations, or statutes. There is no complete listing of all types of misconduct that occur in the workplace.

However, examples of the most common types are found by looking in Departmental Regulation (DR) 4070-735-001 – Employee Responsibilities and Conduct. This DR can be located using the following link: https://www.ocio.usda.gov/document/departmental-regulation-4070-735-001.

This regulation includes infractions related to: Unauthorized absences (AWOL); conducting personal business during duty hours; misuse of government property to include computers and vehicles; discourteous or disrespectful behavior; fighting, threats, or threatening behavior; lying about official matters; false or malicious statements about others; hostile work environment;

falsifying documents; under the influence and/or consumption of drugs or alcohol while on duty;

and off-duty misconduct resulting in arrest or conviction.

https://ems-portal.usda.gov/sites/fs-orms/orms-directives/_layouts/15/WopiFrame.aspx?sourcedoc=/sites/fs-orms/orms-directives/Directives_1000/wo_1760_amend_2016-1.docx&action=default https://ems-portal.usda.gov/sites/fs-orms/orms-directives/_layouts/15/WopiFrame.aspx?sourcedoc=/sites/fs-orms/orms-directives/Directives_1000/wo_1760_amend_2016-1.docx&action=default https://ems-portal.usda.gov/sites/fs-orms/orms-directives/_layouts/15/WopiFrame.aspx?sourcedoc=/sites/fs-orms/orms-directives/Directives_1000/wo_1760_amend_2016-1.docx&action=default https://www.ocio.usda.gov/document/departmental-regulation-4070-735-001

Harassment

Generally, there are three types of harassing behavior:

Sexual Harassment – Examples include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Equal Employment Opportunity (EEO) Based Harassment – Examples include unwelcome intimidation, ridicule, insults, comments, verbal or physical conduct that is based on race, color, religion, age (40 years or older), disability (physical and mental), national origin, reprisal, sex/gender (whether or not of a sexual nature), sexual orientation, or genetic information.

Other Workplace Harassment (includes Bullying) – Examples include any form of unwelcome, pervasive, persistent, and unsolicited verbal, non-verbal, written, or physical conduct that is so objectively offensive that it alters the victim’s terms and conditions of employment.

Note: Refer to FSM 1700, Section 1765 – Anti-Harassment, for more comprehensive definitions see the FSM at the link included above in this guide.

What are the critical roles for supervisors, managers, and line officers when making the decision to conduct a Management Inquiry?

For allegations of potential misconduct unrelated to harassment, any supervisor, manager, or line officer may conduct the inquiry (becoming the Inquiry Official themselves). In most cases, there is no requirement or need for supervisors or managers to assign a separate Inquiry Official. Typically, it is the first or second line supervisor of the employee who engaged in the alleged misconduct that conducts the Management Inquiry. However, before initiating a Management Inquiry into potential misconduct contact your servicing Employee Relations (ER) Specialist to discuss the issue(s), the processes/procedures, and receive their recommendations and feedback.

For allegations of harassment, an Inquiry Official must be assigned by an appropriate supervisor, manager, or line officer. In this instance, an appropriate supervisor, manager, or line officer is an individual who is not implicated in the alleged harassment, has authority to appoint/assign an Inquiry Official, and can authorize a Formal Misconduct Investigation.

Prior to designating an Inquiry Official and beginning an inquiry into alleged harassment, the appropriate supervisor, manager, or line officer must contact their servicing ER Supervisor to discuss the issue(s) and receive their advice, guidance, and recommendations to ensure required steps and timelines for inquiries into harassment allegations are followed.

Employee Relations Role

No matter what type of issue(s), it is important to remember to work closely with Employee Relations (ER); your servicing ER Specialist (for inquiries into potential misconduct) and your servicing ER Supervisor (for inquiries into harassment allegations). They are valuable resources who will provide technical assistance and support while ensuring compliance with applicable policies and regulations throughout the inquiry process.

A list of current ER Supervisors and Specialists can be found on the HRM website at:

http://fsweb.asc.fs.fed.us/HRM/employee_relations/staff/ER_Contact_List.xlsx

Inquiry Official’s roles and responsibilities

An effective Inquiry Official must be objective and not personally biased for or against the subject(s). They must not set out to justify a preconceived outcome and should avoid assumptions of guilt or innocence. They must ensure to get both sides of the story and not engage in game playing, deception, or intimidation.

An Inquiry Official must be at a grade level and position equal to or greater than the subject of the inquiry. They cannot be a bargaining-unit employee (BUE) or implicated in, or party to, the alleged harassment or potential misconduct

An Inquiry Official’s role is to:

Create a plan on how to proceed with the inquiry;

Collect available evidence;

Conduct interviews;

Take written statements; and

Prepare a written report summarizing the findings.

Creating a plan

Developing an effective plan starts with the Inquiry Official assessing how they are going to gather the facts and evidence to prove or disprove the potential misconduct and/or alleged harassment. This means Inquiry Officials should have an idea of what they need to know and what information or supporting evidence must be gathered to form an evidence-based opinion.

The plan (see Index attachment #1) should include:

The specific issues or allegation(s) that is the basis for the inquiry. The allegations cannot be general allegations of harassment; they must be specific acts of misconduct.

The names and titles of the individuals to be interviewed.

Identification of documents or other evidence to be collected.

Identification of relevant regulations, policies, rules, etc.

Questions they will use when conducting interviews. And, Location for the interviews.

Note – Refer to the frequently asked questions section of this guide if the inquiry will include interviewing bargaining unit employees (BUEs).

http://fsweb.asc.fs.fed.us/HRM/employee_relations/staff/ER_Contact_List.xlsx

A solid inquiry plan centered on determining what needs to establish and who they need to talk to before starting will make the task of uncovering the facts and evidence progress more effectively. As more facts are obtained, the Inquiry Official may delve into new areas of inquiry, be required to clarify previous statements, connect with new sources, and review additional documents. Just remember that the plan is a living document and may need to be reviewed, revisited, and revised.

Confidentiality

Management inquiries must always be handled in a confidential manner. Only individuals involved in the inquiry (and their representatives, if one was requested) and those involved in determining corrective actions subsequent to the inquiry have a need to know. Inquiry Officials should remind everyone that the process is confidential and that they should not speak about their involvement with others (even if these other individuals are also involved).

Likewise, Inquiry Officials will protect the privacy of everyone involved and will not share their findings, conclusions, or recommendations with anyone who does not have a need to know.

Collecting available evidence

The Inquiry Official must ensure that all available information relevant to the allegation(s) is collected. Examples include: time and attendance records; travel receipts and expenses;

supervisory notes; written warnings for conduct or performance issues; accident reports; emails;

text messages; and security videos. Gathering this evidence is critical in minimizing the “he said/she said” allegations, particularly in allegations concerning harassment.

The Inquiry Official must also ensure the evidence is stored in a safe/secure location during the inquiry process.

Preparing for interviews

Organize the material: Before the interview, organize the material so any records, documents, or other evidence to be discussed is readily available. Should you need to show a piece of evidence to a witness or subject of the inquiry, you should use a copy. Maintain your originals in a safe and secure location.

Prepare an outline: Draft a line of questions to be asked during the interview. It may be necessary to refer to these questions during the interview. Before the end of the interview, be sure all relevant questions have been asked. It is a good practice to anticipate what each witness’s role is and what information they will likely provide.

Decide the order in which the interviews will be conducted: The accuser should always be interviewed first and the subject of the alleged misconduct or harassment is typically interviewed last. The order of the witnesses depends on their significance. It may also be necessary to interview all witnesses to include the accuser/accused more than once.

Provide for privacy and place for interviews: The location of the interview is important. It should be conducted in an office that allows for privacy but is not isolated. Open offices or cubicles will not suffice. It is important to maintain privacy and limit disruption to the workplace to the extent possible.

Conducting the Interviews

The Inquiry Official will use questions that elicit the “who, what, where, when, why and how” of the situation. Questions should be open-ended to allow the interviewee to respond or elaborate. For example: Describe what happened; tell me what happened next;

provide specifics of the situation. The emphasis should be on facts and observations, not on opinion, which can be flawed or biased. They should also ask whether the interviewee knows of other witnesses or others who have relevant knowledge.

Basic interview tips

The Inquiry Official should always open an interview with an introduction of who they are (if necessary/applicable) and the purpose of the interview.

Be prepared to explain employee’s rights (i.e. Bargaining Unit employee’s rights to representation). Contact LR or ER for advice when BUEs ask for representation.

Ask the interviewee if there are any other witnesses.

Use open-ended questions (see below for examples).

Let the other person do most of the talking.

Be a good listener.

Keep an open mind.

Resist distractions and stay focused.

Maintain eye contact and positive body language.

Keep questions short, simple, and direct to avoid confusing the interviewee.

Analyze each answer to see if it’s responsive to the question, accurate in light of known information, and is complete. If not, then ask follow-up questions.

If the interviewee references documents, ask for copies.

Open-ended question examples

“What did you see/hear/experience?”

“When did the incident occur?”

“Where did the incident occur?”

“Who was involved?”

“Was anyone else present or witness the incident?”

“Why do you think you were accused of harassment?”

“How did it happen?”

“Can you tell me more?”

“Why did you decide to come forward?”

“Do you know of anyone else who might have information?”

“Do you know of any evidence or documentation relating to the incident?”

“Is there anything else you would like to tell me?”

Don’t ask: “Why did you pressure Mary to date you?”

Instead ask: “Did you and Mary discuss dating?” “What did each of you say?”

Don’t ask: “Did you hear Johnny tell Sally dirty jokes?”

Instead ask: “Did you hear Johnny and Sally talking last week?” Tell me exactly what you heard.

Don’t ask: “Why did you report to work at 12:00?”

Instead ask: “What time did you report to work?”

The Inquiry Official will often need to ask clarifying questions to ensure they have a thorough understanding of the interviewee’s response. Examples include:

“Let me make sure I have this correct…you said that you…?”

“Do you mean, for example, that…?”

“In other words, this is what happened…?”

“A few minutes ago, you said…and just now, you said…which is correct?”

If a witness says, “She disrespects me and talks down to me,” follow up with, “What do you mean, please explain?” or “Specifically, what did she say?”

If a witness says, “He cusses, yells, and calls employees names all the time and management knows about it but does nothing” follow up with, “Specifically, what has he said? What words did he use? Do you have dates? Who are the other witnesses? Who in management knows about this alleged misconduct?"

Tips for concluding the interview

Be sure all items in the plan/outline have been covered.

Be alert for additional leads. The Inquiry Official might be taken down another line of questioning and cannot just stick to their list of prepared questions.

Always ask interviewee for any information that has not been discussed.

Leave the door open for the interviewee to contact the Inquiry Official if additional information develops.

At the conclusion of the interview, remind interviewees that they cannot discuss the inquiry or their interview with anyone other than their representative (if they have one).

Taking written statements

While the Inquiry Official is interviewing, they will also be taking notes of the interviewee’s responses. While taking notes, it is not necessary to capture every word the interviewee says.

Instead, summarize what they say by capturing the main, important points. This summary will become the interviewee’s written statement.

At the conclusion of the interview, the Inquiry Official will sign the summary/interviewee’s written statement (see Index attachment #3) and provide it to the interviewee. The interviewee will be allowed a reasonable time to review, make necessary corrections, and/or add anything missed.

The interviewee will be asked to sign the statement at the conclusion of the interview. If they refuse to sign, the Inquiry Official will note the refusal on the document.

If the interview is telephonic, the Inquiry Official will email the statement to the interviewee and ask them to review it, make necessary corrections, and/or add anything missed. If the interviewee agrees with the statement, they need only to state this in an email back to the Inquiry Official. This email confirmation happens at the conclusion of the interview and a copy should be included in the final inquiry report.

Should the interviewee request a copy of their signed statement, the Inquiry Official provides it.

However, the Inquiry Official cannot provide copies of anyone else’s statements or any parts of the collected evidence. As a reminder, Inquiry Officials should always remind those who are interviewed they cannot discuss the inquiry or their statement with anyone other than their representative (if they have one).

Preparing written report summarizing findings

Once the interviews are complete, the Inquiry Official’s next step is to organize the information obtained into a written report summarizing their findings (see Index attachment #2). The findings should focus on the specific acts of misconduct, and not the general allegation of harassment. For example, “did the employee make remarks of a sexual nature?” not, “did the employee sexually harass another employee?”

The Inquiry Official should also refrain from making any recommendation for disciplinary action.

This recommendation will be made by Employee Relations (ER) in collaboration with the appropriate supervisor, manager, or line officer. As such, the report needs to contain sufficient information to allow ER and the appropriate supervisor, manager, or line officer to evaluate and decide on a course of action.

The report must cover the issues in an impartial, concise, understandable, and accurate manner. It should document the relationship between the exhibits and the allegations prompting the inquiry. The record should tell the story of what happened, who was involved, when and where it happened and why it happened. As outlined previously in this guide, the complete story answers: who; what; when; where; how; and why.

The report should not include assumptions or speculations. Conclusions should be based on facts and evidence and should take applicable policies, regulations, and directives into consideration. The report should not contain false or unrelated information.

Reports will vary in length depending on the complexity of the issue(s) and number of witnesses interviewed. In some cases, a short inquiry report will suffice. For example, only collecting a statement from the person making the allegations and a statement from the individual alleged to have engaged in the misconduct or harassment may not be sufficient to tell the complete story.

In others, a longer inquiry report will be necessary.

The report is finished – now what?

For inquiries into potential misconduct, the supervisor or manager will forward the Management Inquiry report to their servicing Employee Relations (ER) Specialist.

For allegations of harassment, at the conclusion of the inquiry, the Inquiry Official will provide a copy of their final report and all supporting documentation and evidence to their servicing ER Supervisor and the individual who appointed/assigned them.

Inquiry Officials must retain an additional copy of the inquiry report and supporting documents/evidence in a secure and confidential manner. After 1-year, the Inquiry Official should contact their servicing ER Specialist who will help them determine final disposition of this additional copy. Normally, at that time, ER may recommend the copy be destroyed since the copy that was previously sent to ER upon completion of the inquiry is the official copy. ER will maintain the official copy in accordance with agency records retention policy.

Once ER receives the inquiry report, they will work with the appropriate supervisor, manager, or line officer to assess the case and provide recommendations. They will ensure all required steps and procedures of the ER process are followed.

Frequently asked questions

Q. Are federal employees required to answer questions during an inquiry, even if doing so might put them at risk of disciplinary or adverse action?

A. In accordance with Departmental Regulation (DR) 4070-735-001, “Employee Responsibilities and Conduct”, Section 20c, Miscellaneous Conduct Provisions, employees have an obligation to participate and cooperate in official administrative investigations and inquiries. Agency employees are obligated to give information to authorized representatives of the Department, when called upon, if the inquiry relates to official matters and the information is obtained in the course of employment or as a result of relationships within the Agency employment. The only situation in which federal employees have the right to remain silent is when they are asked about a matter that could render them liable to criminal charges or penalties. Inquiries;

however, do not involve criminal issues and employees have no protected right to remain silent.

Q. When is an employee entitled to have union present during an inquiry interview?

A. When the employee:

is a member of the bargaining unit;

could reasonably fear disciplinary action might result; and asks for a representative

These rights are commonly referred to as Weingarten Rights. Note that the employee does not have to be the subject of the inquiry in order to invoke their Weingarten Rights.

Q. What does the Inquiry Official do if an employee requests union representation at their interview?

A. If, at any time point during the interview, a bargaining unit employee requests representation under the Weingarten provision, you have the option of postponing for a reasonable amount of time to allow the employee to obtain a union representative, or you can cancel the interview.

Q. To what extent can a representative participate in an inquiry interview?

A. The representative is entitled to take an “active” role. Under current Federal Service Labor Management Relations (FLRA) case law, this generally means the representative can confer with the employee before and during questioning, and can also ask questions that may help to elicit relevant facts and information. The representative is not entitled; however, to disrupt the interview or to answer questions for the employee.

Note: For a full list of negotiated procedures relating to inquiries, refer to your collective bargaining agreement and consult with your Labor Relations Specialist. For bargaining unit employees covered under NFFE, refer to procedures in Article 4 of the FS/NFFE Master Agreement.

Q. Do employees have to sign their statements after their interview?

A. Employees are actually required to sign their statements; however, if they refuse, the Inquiry Official can simply annotate the refusal.

Q. Can a witness remain anonymous or confidential?

A. Not in a Management Inquiry/investigation. Witnesses are often hesitant and fearful to share information, but they must be reminded they are required to report actions by other employees they know, or have a reasonable basis to believe, are violations of law or regulation. They can also be reminded they are protected from retaliation for cooperating with the inquiry. They should report any claims of retaliation immediately.

Q. What if, during the course of the inquiry, the Inquiry Official obtains information which they believe points to a criminal act?

A. Stop the inquiry and contact law enforcement. You must also inform Employee Relations of the situation.

Index

#1- Plan for Conducting Interviews

PLAN FOR CONDUCTING INTERVIEWS

What are the allegations? In other words, do you know what you are trying to find out? This needs to be very clear and specific before you proceed.

Example: On June 1, 2016, did supervisor Billy Gruff kiss subordinate Red Riding-Hood in the breakroom at the ranger district? On June 2, 2016, did Billy Gruff text Red

Riding-Hood asking her to have sex with him?

What do you need to prove this?

Eyewitness statements, copy of the text message, possibly Billy Gruff’s time and attendance records (to determine if he was actually at work on June 1, 2016), Billy

Gruff’s admittance, etc.

Whose statements are required (accuser/accused/witnesses)?

What questions need to be asked during the interview?

What order will the interviews be conducted?

Where will the interviews be conducted?

What documents are needed? (Policies/regulations, etc.)

Is this a bargaining unit? If yes, has the union been contacted?

Have witnesses been notified?

#2- Management Inquiry Report (Sample)

Allegations of Inappropriate Conduct:

For example:

1. Did acting supervisor, Billy Gruff, send an email to a subordinate employee, Red Riding-Hood, requesting that she meet him away from the workplace on her personal time?

2. Did acting supervisor, Billy Gruff, repeatedly send Red Riding-Hood text messages requesting that she go out with him?

3. Did acting supervisor, Billy Gruff, approach Red Riding-Hood in the workplace and question her about failing to respond to his text messages requesting that she go out with him?

Relevant Additional Information (if any):

For example:

1. The accused employee is currently working on detail to Region 20 during the period of 10/1/2016 through 12/1/2016.

2. The accused employee was a seasonal employee when the alleged misconduct occurred and his current appointment expired on 9/1/2016.

3. The accusing employee is not a Region 19 employee. She works for the Bureau of Land Management and shares a common workplace with the accused.

List of Witnesses Interviewed (Include job title, series, grade, and the employee’s work unit)

MANAGEMENT INQUIRY REPORT

Location where alleged misconduct occurred:

Date(s) when the alleged misconduct occurred:

Example: Region, Forest, Ranger District, JCCC

Identification of the accuser: Name, Title, GL-xxxx-00, work unit

Identification of the accused: Name, Title, GS-xxxx-00, work unit

Designated Inquiry Official:

For example:

1. Cinder Ella, job title, series, and work unit

2. Rumple Stiltskin, job title, series, and work unit

3. Snow White, job title, series, and work unit

4. Jacob Grimm, job title series, and work unit

List of Documents Reviewed:

For example:

1. Text messages from Billy Gruff to Red Riding-Hood

2. Witness statement from Snow White

3. Red Riding-Hoods last 3 performance evaluations

4. June 2016- 1700: Creating a Work Environment of Equal Opportunity and Free of

Harassment from the Chief Thomas L. Tidwell

Summary of Findings:

Note: If there is more than one allegation, then list each allegation separately and summarize the statements and findings for each one.

(Signature of designated inquiry official and date)

LIST OF EXHIBITS

Example:

Exhibit No. Description Page Introduced

1 Email from xxxx to xxxx dated xxxx, 2016

(Do not duplicate emails)

2 Text messages from xxx to xxx dated xxx, 2016 2

3 Departmental Regulation 4070-735-001 dated

October 4, 2007

4 Forest Service Anti-Harassment Policy letter dated xxxx

5 Statement from NAME dated xxxx 2016 5

6 Statement from NAME dated xxxx 2016 6

#3- Management Inquiry Statement (Sample)

Management Inquiry Statement of: Red Riding-Hood Date: October 1, 2016

1. What were the dates you worked on the Anytown NF this fire season? She worked from May 1- September 30, 2016.

2. On September 29, 2016, you reported to District Ranger Yosemite Sam that your supervisor, Billy Gruff, sent you an email requesting that you meet with him away from the workplace on your personal time.

a. Do you have a copy of that email? I didn’t save my emails before I left for the season.

b. Do you know the approximate date the email was sent? Did you respond to Mr. Gruff’s email and/or did you show it to anyone else in the work unit? I believe it was sent in June. I didn’t respond; however, I did show my co-worker, Snow White.

3. On September 29, 2016, you also reported that Mr. Gruff repeatedly sent you text messages requesting that you go out with him.

a. What are the dates of the text messages and did you keep them? He started text messaging me in June and the last one was at the end of August. I brought my phone to show you the texts and I made copies, as well.

b. Did you respond to the messages? No, and when I didn’t, he threatened to not bring me back next season. He started saying things like if my performance didn’t improve, he would not be rehiring me.

c. Tell me how he communicated his concerns about your performance? Were they included in an email or text message? No, he just talked to me about them.

d. Do you know if anyone else heard him make these comments to you? No, there was never anyone else around.

e. When did he start making comments about your performance? At the end of August, right after the last text message from him.

f. So, what I hear you saying is that prior to the texts being sent to you, Mr. Gruff never mentioned your work performance; it was only after you failed to respond to his texts to go out with him? Yes, that is correct.

g. Tell me about the performance rating you received this year. Mr. Gruff never gave me a performance rating.

h. Tell me about your past performance ratings. I have worked for the Forest Service for 3 fire seasons. I received superior performance ratings the 2 years prior to this season. Mr.

Gruff was the only supervisor who has made negative comments about my performance.

4. Do you have anything else you want to add or that I should know? No

The above is a summary of my interview with Red Riding-Hood.

(Signature of designated inquiry official and date)

I have read the statement above and have been given the opportunity to make additions and corrections and it is true and complete.

______________________________________Signature of interviewee and date)