Investigators are frequently called upon to conduct investigations of complaints that involve a particular statute, such as California’s Fair Employment and Housing Act, the Family and Medical Leave Act, California’s Whistleblower Protection Act, or Labor Code section 1102.5. A recent Court of Appeal decision highlights the care that must be taken by the investigator who is conducting such an investigation to thoroughly understand the legal requirements of the statutory scheme, including the definition of terms used within the statute at issue, and to appropriately apply those requirements. A failure to do so may invalidate the investigator’s findings and leave the client who relies upon the investigation open to liability.
The Facts and Findings of Ohton
Ohton v. Board of Trustees of the California State University (2010) 180 Cal.App.4th 1402 involved a trainer who worked for the San Diego State University Athletic Department. In February, 2003, Ohton responded to an Athletic Department audit by submitting a confidential report asserting that members of the Athletic Department had violated National Collegiate Athletic Association rules and engaged in other inappropriate conduct. Among his allegations were that he had heard rumors that the head football coach had gotten seriously drunk before one away game and had been seen walking out of a strip club at 1:00 a.m. the morning of another game.
In August, 2003, Ohton filed an internal complaint with the school, claiming that the football coach and other members of the Athletic Department had retaliated against him because of his report in violation of California’s Whistleblower Protection Act. He claimed the football coach obtained a copy of his confidential report and circulated it to other members of the Department. Ohton claimed he had been retaliated against when the Interim Athletic Director informed him that the football coach wanted a different strengthening and conditioning coach. He was thereafter relieved of all responsibilities for the football team, and his schedule was changed.
CSU retained an attorney to investigate Ohton’s complaints. The investigator concluded that Ohton was removed from the football program because he reported “personal and program-related” improprieties, not because he reported NCAA violations. As to the schedule change, the investigator concluded that the change was punitive and was made because of Ohton’s perceived antagonism towards the current football program, as illustrated by some of the allegations and accusations in Ohton’s report. However, with respect to Ohton’s allegation regarding the football coach’s public drunkenness, the investigator concluded that, while the allegation was arguably one of gross misconduct or incompetence, the evidence relied upon by Ohton was hearsay and was fully refuted. Moreover, the investigator noted that the accusation appeared in only two sentences on the 98th page of a 103 page document. Based on this, the investigator concluded that the accusation was not intended to “blow the whistle” on specific conduct and was not a “protected disclosure” as is required to support a claim for whistleblower retaliation.
CSU forwarded the investigator’s report to Ohton and he responded to it. The investigator was then given an opportunity to comment on Ohton’s response, which he did, as follows:
Regardless of [Ohton’s] subjective intent, the statute requires a finding of “good faith” disclosure. The comments that contributed to Ohton’s reassignment and hour restrictions were not good faith disclosures; rather, they were personal attacks based on faulty or incomplete information, improper assumptions or innuendo, and/or were accusations that did not involve improper governmental activities. [¶] It is my opinion that Ohton’s accusation that Head Coach Tom Craft was intoxicated in public was a factor in the timing of and the decision to remove Ohton as the Strength and Conditioning Coach, and that such accusation was not made in good faith.
Finally, the investigator noted that a separate investigation had been conducted by another investigator regarding the allegation of public drunkenness by the coach. During that investigation, Ohton claimed that he heard the allegation from one Booster, who had in turn heard it from two others. The “two others” were interviewed and denied the incident had occurred, as did the coach. Ohton’s source did not confirm it either. The investigator concluded that Ohton had related the very serious accusation due to disrespect for the coach and that Ohton’s false assertions of purported fact were not made in good faith.
CSU sent Ohton a final letter of determination resolving his complaint, in which it stated that it disagreed with the finding of the investigator that Ohton’s written report was not a protected disclosure. However, CSU concluded that the particular disclosure relating to the coach’s public drunkenness was not a protected disclosure because it was not made in good faith. CSU agreed with the investigator that the accusation was false and was motivated by Ohton’s personal and vindictive agenda against the coach. CSU concluded that Ohton was removed from the football program for independent legitimate, non-retaliatory reasons but that the restriction of Ohton’s hours was retaliatory. As a result, CSU rescinded the instructions regarding the limitation of Ohton’s work hours.
Ohton filed a petition for writ of mandate, requesting a determination of whether CSU had satisfactorily addressed his internal complaint within the meaning of Government Code section 8547.12. The Court of Appeal concluded that CSU had applied an incorrect definition of good faith and that the result it reached was contrary to law.
The Court first analyzed the determination that Ohton did not act in good faith in reporting the football coach’s alleged public drunkenness, because that determination led to the finding that his disclosure was not protected. The Court determined that CSU had applied an incorrect definition of good faith and had, therefore, reached a result that was contrary to law. Specifically, the Court noted that Government Code section 8547.2 defines “protected disclosure” to mean “any good faith communication . . . that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity or (2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.” While “good faith communication” is not defined, the Court noted that an employee may file a written internal complaint only with a sworn statement that the contents of the complaint are true, or are believed by the affiant to be true under penalty of perjury. Accordingly, a finding of good faith, or its absence, involves a factual inquiry into the complainant’s subjective state of mind. Did he/she believe the action was valid? What was his/her intent or purpose in pursuing it? The Court noted that a subjective state of mind will rarely be susceptible of direct proof; usually it will be inferred it from circumstantial evidence. However, “the phrase ‘good faith’ in common usage has a well-defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.” The Court noted that, although the investigator questioned Ohton’s motive for disclosing the allegation that the coach was seen drunk in public, the investigator did not conclude that Ohton had been knowingly dishonest. Furthermore, CSU did not dispute the investigator’s finding in that regard.
The Court went on to criticize the good faith analysis on other fronts as well. Specifically, the investigator had concluded that Ohton did not act in good faith because his disclosure was based on hearsay and was fully refuted. The Court disagreed that a whistleblower’s reliance on hearsay precluded a finding that the complaint was a good faith protected disclosure, noting that improper governmental activity is frequently difficult to uncover and whistleblowers will often need to rely on hearsay evidence. The Court also concluded that it could not be the case that a lack of good faith could be imputed simply because an investigation ultimately concluded the allegation was false. Whether the disclosure is made in good faith, the Court noted, is properly determined based on whether the complainant believed it was true or had reason to believe it was true at the time it was made. It is then the investigator’s role to ascertain the truth or falsity of the complaint. A post-investigation conclusion that the complaint was unfounded does not necessarily mean the complaint was made in bad faith.
Finally, the Court noted that, even if Ohton’s report had been motivated because of a personal and vindictive agenda against the coach, it did not follow that the complaint was made in bad faith. Government Code section 8547 does not require the impossibly high standard that the complainant’s motives be pure and untainted. Rather, the statute merely requires an honest belief in the truth of the allegations. The Court further criticized the fact that, even though one Booster identified by Ohton acknowledged seeing the football coach drunk in New Mexico, that fact was omitted from CSU’s final determination letter because the Booster stated he did not wish to be involved. The Court found that the omission of that fact undermined the conclusion that Ohton did not make a good faith report.
Lessons from Ohton
Ohton provides several valuable lessons to workplace investigators. First, if you are conducting an investigation that involves a particular statutory scheme, it is imperative that you understand the legal terms used in the statute. Achieving such understanding may involve conducting legal research or otherwise assuring yourself that you are applying the appropriate legal standard. This is particularly important where terms used within a statute may be subject to a lay understanding which is different from that imposed by law. It was unclear in Ohton how the investigator came to his definition of “good faith.” There is no suggestion in the Court’s opinion, however, that the investigator defined how he was using the term, or that he cited to any authority for the definition of good faith he used. In the event a legal term is central to your finding, as was the case in Ohton, it may be appropriate to not only research the proper definition of the term, but also to cite your sources when referencing that term. In Ohton, the employer’s entire determination ultimately unraveled because of an incorrect standard applied by the investigator.
The Court in Ohton also pointed out another error: selective omission of contradictory information. Specifically, one Booster identified by Ohton as a source of information confirmed that he had seen the coach drunk in New Mexico. However, that Booster said he did not want to be involved in the investigation. CSU excluded that information from its determination letter, undermining its conclusion that Ohton’s report was not made in good faith. Although it is unclear from the decision whether that omission was made by CSU or the investigator, the lesson to be drawn is clear. Where an investigator comes across information which refutes one of the investigator’s findings, it is important to address that information head on and explain why the conclusion stands in spite of the information. Disregarding the information implies either a sloppy report or an inability to reconcile the findings with the contradictory information. In either event, should your investigative report be relied upon by your client and litigation results, you can be sure you will be vigorously cross-examined on any omission of or failure to account for information that contradicts your findings.
Finally, be clear in your findings. In Ohton, the investigator questioned Ohton’s motive for disclosing the allegation that the coach was seen drunk in public, but did not specifically conclude that Ohton had been knowingly dishonest. Given that a finding of dishonesty was a prerequisite to a finding of bad faith, this omission proved critical. While not every investigation requires specific findings of honesty or dishonesty, most investigations do involve conclusions regarding witness credibility. Your determination regarding whether a witness is honest or dishonest will impact the amount of weight you give the information you receive from the witness. If you are going to disregard a witness’ testimony because you believe he is not credible, make sure you include such a statement in your findings. Likewise, if you are giving one witness’ testimony more weight than another’s, explain why that is so. Do not leave your reader guessing as to your conclusions regarding witness credibility where you have, in fact, made such conclusions. Of course, where you have not made such conclusions, you may wish to include a statement to that effect as well. Most importantly, however, where you are conducting an investigation in which the complainant’s good faith (or lack thereof) is central to your findings, make sure you specifically address whether you find the complaint to have been made in good faith or not and explain why you made that finding. You should cite to the specific evidence upon which you have relied so that the basis for your finding will be obvious to anyone reading your report. In the event your client is required to establish that it acted reasonably in relying on your report, your transparency will make that task easier. Your client may not be the only one to benefit, however; in the event litigation ensues and you are called to testify many months or even years later, you will be able to easily refresh your recollection as to the facts you relied on when you made your findings.
