STATE OF HAWAII
BOARD OF EDUCATION
Queen Liliuokalani Building
1390 Miller Street, Room 404
Honolulu, Hawaii 96813
Thursday, September 6, 2018
Denton stated that IA found that the Department’s process does include some of these characteristics; however, some weaknesses were noted. IA observed that investigations are not always free, both in fact and appearance, from potential impairments to independence, and information is not maintained for analysis and reporting.
Denton noted that IA’s recommendations for the Department to address impairments to independence include, to create and implement an independent process for complaint intake, review, and assessment. Management should consider creating guidelines for the use of an independent reporting method so that employees know when and how they should use this option; determining who can and who should review and assess the complaints submitted through the independent reporting option; consolidating or centralizing complaint intake functions at the state office level; and updating policies and procedures to provide clarity and guidance to the field. Denton stated that management submitted an action plan. He noted that the Office of Talent Management will work with the hotline intake team to revise the process for review and assessment of complaints received through the Department’s Fraud and Ethics Hotline. The hotline intake team will review complaints involving allegations of serious or egregious misconduct, to determine whether an investigation is warranted and make a recommendation to the appropriate Complex Area Superintendent (“CAS”) or Assistant Superintendent that an investigation be initiated, if deemed necessary.
Denton detailed that to ensure that internal investigations are assigned to investigators who are independent in fact and appearance, IA recommends that management should consider increasing staff at the district level and state office level to conduct investigations; transferring investigation duties to other employees; outsourcing for investigations; and updating policies, procedures, and guidelines for the assignment of investigators. He stated that management’s plan includes that the Office of Talent Management will continue to request three permanent investigator positions in the biennium and supplement budget requests until the positions can be obtained. The Office of Talent Management will also initiate discussions with CASs and recommend that a permanent complex area personnel specialist be hired in each complex area.
Denton stated that for the second observation, IA noted that there is no consistent practice or system for managing investigative information, a lack of policies and procedures for managing investigative information, and the only investigations tracked for review and analysis are the ones in which employees are placed on leave. He stated that IA recommended that management create and implement a process for recording and maintaining investigative information, and store information in a manner that allows effective retrieval, reference, and analysis, while ensuring the protection of sensitive data. Management should consider determining what information should be tracked and analyzed, documenting complaint intake and complaint resolution, standardized forms and templates, computer applications, creating requirements and guidelines for managing investigative information, and updating policies and procedures to provide clarity and guidance to the field. IA also recommended that management consider conducting analysis of investigative information to identify recurring or systematic workplace issues and to assist with determinations for resource allocation, training needs, program development, and process improvements. Denton noted that management’s action plan includes that the Office of Talent Management will research case management software and will follow up with the necessary tasks to procure the case management software. As an interim measure or temporary means of collecting information related to investigations, the Office of Talent Management will develop a spreadsheet for schools, district offices, and state offices to complete and return to the Office of Talent Management to consolidate on a semi-annual basis. Denton stated that IA feels that management’s action plans adequately address IA’s concerns.
Committee Member De Lima asked if IA reviewed other school districts to determine how other districts conduct independent investigations. Denton explained that IA reviewed the top 20 school districts based on size and found that different districts use different methods, such as having multiple offices to address complaints and investigations. He noted that some districts have a similar process to the Department’s.
Committee Member De Lima asked if in other school districts, an individual could call a different office to investigate a complaint if he or she brings it to the principal’s attention and the principal does not investigate. Denton stated that for some school districts, this is part of the procedures, and for other school districts it is not.
Committee Member De Lima asked if certain offices investigate specific allegations in other school districts. Denton explained that some districts have specific areas or agencies, such as police departments, that investigate specific allegations. For example, if there is alleged criminal activity, district police would investigate this complaint.
Committee Member De Lima stated that not all complaints are going to be addressed in the same way. He noted that it is appropriate for a principal to manage a category of complaints, and for investigators to investigate certain types of complaints at the school-level. Committee Member De Lima stated that it might be difficult for the Department to receive more positions. He stated that IA should work with the Office of Talent Management to review how to find the right balance so that its requests to the Legislature are vetted with information. He noted that the Department needs to further review how to conduct investigations.
Committee Member Kawano asked for more detail regarding the investigative process. He asked what happens when the Department receives a complaint, where it comes from, who the source is, and who the complaint is assigned to. Committee Member Kawano asked if the Department always assigns complaints to principals. Denton detailed that IA’s materials include a chart that shows the complaint intake structure.
Committee Member Kawano asked for more detail regarding the process in between which office complaints are reported to and which office complaints are referred to. He asked for more detail regarding referral determinations. Denton explained that a complaint could come into any office. The Department assigns complaints based on the location related to the complaint.
Committee Member Kawano asked what the next step is for a principal after he or she receives a complaint. Denton stated that IA’s materials include a depiction of the Department’s investigation process. He detailed that once the Department intakes a complaint, it reviews and assesses the complaint to determine whether or not an internal investigation is warranted.
Committee Member Kawano asked how a principal determines whether he or she handles a complaint or whether he or she should refer a complaint to a different office. He stated that he is trying to understand whether principals make their own determinations or whether there is a process that principals follow. Denton stated that he is unsure how consistent principals are across the state. He explained that the principal makes the decision to refer or not refer a complaint after he or she reviews and assesses the complaint. If the complaint is related to class discrimination, principals refer the complaint to the Civil Rights Compliance Office (“CRCO”) for review.
Committee Member Kawano commented that it appears as though there are no policies or procedures for principals to follow upon complaint intake and principals determine what to do with a complaint. Denton stated that principals make the determination, but they have guidance to make a decision. Committee Member Kawano asked if principals have written guidance. Denton stated there is no written procedure on how to handle it. Yoshida explained that the determination that a principal makes to handle it as a management issue or an investigation or refer a complaint to a specialized area office, such as labor or civil rights, is not something that was tested. She noted that Cynthia Covell (Assistant Superintendent of Talent Management, Office of Human Resources) could better address Committee Member Kawano’s questions.
Committee Member Kawano suggested that IA expand its audit to review this process. He stated that IA is recommending a new intake process and suggesting an alternative intake process without understanding the current process. Yoshida explained that the alternative reporting method is not a replacement for the current practice of reporting to immediate supervisors and administration. She noted that IA’s audit reviewed the investigation process, including the intake process and how complaints are resolved on the backend. She noted that this is why IA is completing its decision-making review next. Committee Member Kawano stated that he is speaking to the step in between and its relevance. He noted that IA is reviewing the intake and disposition component and he is asking about what happens in between. Yoshida explained that the investigation process is what IA reviewed. Committee Member Kawano suggested that IA expand its review to determine whether the Department has policies and procedures in place so that individuals follow an agreed-upon process once a complaint comes in. He stated that if principals make determinations and the Department assigns complaints based on location, the process may not be consistent. Committee Member Kawano noted that some principals may refer complaints if they have too much on their plates while other principals may not refer complaints out of bias or need to protect individuals.
Christina Kishimoto, Superintendent, explained that the Department provides principals with extensive training and has guidance for principals to refer complaints if complaints are related to protected classes. She detailed that Covell’s staff assists in investigations and provides technical assistance on difficult cases. Kishimoto noted that complaints regarding behavioral issues are related to how staff is getting along and are handled by principals. She detailed that other complaints may be more complex and in these instances CRCO and investigative teams help walk principals through the process. Kishimoto clarified that principals do not make their own determinations because they want to conduct their own investigations. She highlighted IA’s recommendation for the Department to use technology to facilitate documentation regarding the processes it has in place so that it is clear and easy to account for. Kishimoto stated that in some instances, the Department engages in a more independent review and is ensuring that these instances are captured in its processes as well. Kishimoto reiterated Committee Member De Lima’s earlier comments and stated that the Department has processes in place to assign complaints for independent review in certain scenarios.
Committee Member Kawano asked if IA has tested the policies and procedures that Kishimoto detailed. Denton clarified that Kishimoto described guidance, not policies and procedures. Committee Member Kawano asked if IA tested the Department’s guidance. Denton confirmed that it did. Committee Member Kawano asked if all principals are following this guidance. Denton stated that principals make determinations at their own discretion based on their training and guidance. Committee Member Kawano commented that the Department’s procedures are merely guidelines so principals can follow them if they want to. He stated that these are not procedures.
Committee Vice Chairperson Takeno asked if the Department has checks and balances in place to ensure that principals are following the processes that Kishimoto described and referring complaints to the correct offices upon initial intake. Committee Vice Chairperson Takeno noted that complaints could have many facets, such as protected areas and legal areas, and certain offices may need to be involved. He asked if the Department has coordinated efforts to ensure checks and balances. Committee Vice Chairperson Takeno echoed Committee Member Kawano’s sentiments regarding whether principals could determine that they would handle a specific complaint even if guidelines direct them to refer to a different office. Denton stated that this is possible and noted that this is the risk of the Department not having independent options for reporting. He explained that current decision-making goes up the management chain. He detailed that principals make a decision and receive approval from CASs. He noted that this is not organizationally independent. Denton detailed that checks and balances appear later down the road after a principal makes a determination. He stated that part of the checks and balances process is that employees have rights and could undergo the grievance process. Denton stated that if a principal makes the determination to not investigate a complaint, the Department does not have checks and balances in place. He noted that IA found that this is a weakness and addressed it in its report. In order to mitigate this weakness, the Department needs to implement independent reporting methods.
Committee Member Kawano stated that it does not make sense for IA to recommend that the Department keep its current process in place if that process is potentially flawed. He stated that it does not make sense for the Department to implement a new process that is independent and unbiased while keeping its current process. Denton explained that IA’s recommendations are based on risk. He further explained that there is not enough risk for IA to recommend that the Department overhaul its entire procedure to mitigate this weakness. Denton noted that an overhaul of its entire process would cost hundreds of thousands of dollars and the current risk does not warrant that based on IA’s review. Denton stated that IA identified this risk as a moderate risk and rated its review as marginal because it is a lower risk. He explained that it is reasonable for IA to suggest that the Department add another component in order to mitigate the risk that IA found. Denton detailed that the Department’s process includes all complaints and all complaints go to management to be addressed.
Committee Member Kawano asked how many complaints principals chose not to investigate that they should have investigated. He asked if IA tested for this. Denton stated that IA attempted to test for this, but does not have enough information to do so. He explained that the Department has not maintained this information so IA could not conduct an analysis.
Committee Member Kawano asked how IA determined that the weakness it identified is a low risk. Denton detailed the structure of IA’s review and noted that risk explanations are included in IA’s materials. He stated that the risk in this instance would be money loss due to lawsuits or wrongful termination. He noted that it is difficult to quantify and that amount does not satisfy the requirements for a higher observation risk or a rating of unacceptable.
Committee Chairperson Payne stated that individuals at the school-level depend greatly on the professional judgement of school leaders. She detailed that school leaders undergo extensive training to understand if complaints are related to protected classes or criminal issues, and which offices to consult in what instances. She highlighted that there are many checks and balances in place. Committee Chairperson Payne noted that the daily intake of minor complaints is high and most of these minor complaints are handled by professionals at the school-level. She stated that school leaders most likely do not document every issue because it would be very time-consuming to do so.
Committee Member De Lima stated that the Committee has been dealing with investigations and policies as they pertain to directed leave and has been monitoring various aspects of decision-making, investigations, and timelines first on a monthly basis and currently on a quarterly basis. Committee Member De Lima detailed the impetus for IA’s review and described how the Department spent resources to decrease time periods for investigations, determined whether or not appropriate reviews were being conducted to place an individual on Department Directed Leave (“DDL”), reviewed policies from other school districts, determined the analysis regarding whether employees should be placed on DDL or if other alternatives existed, and sent the review out for comment. Committee Member De Lima asked if IA solicited input from unions in regards to its investigation process review. Denton stated that IA did not contact unions. He detailed that IA reviewed bargaining union agreements when it searched for criteria for processes.
Committee Member De Lima stated that in the past, one of the challenges in the Department concluding investigations had to do with meeting with the employee because it placed the employee on leave. The Department also had difficulty scheduling meetings with union representatives. Committee Member De Lima stated that it would have been helpful if IA had solicited comments from union representatives regarding their thoughts on the Department’s current investigation process. He stated that principals need to be able to make their own decisions regarding the use of their resources, but it would have been beneficial to review general guidance principals receive pertaining to investigations. Committee Member De Lima stated that the Department has a lot of data regarding complaints that rise to the level of DDL analysis. He stated that there is no data regarding complaints that do not rise to that level. He asked if it was necessary to spend time and resources on these kinds of complaints. Committee Member De Lima commented that principals have too much on their plates as it is, but stated that he needs more time to review IA’s report. Committee Member De Lima suggested that the Committee review IA’s report again and suggested that the Human Resources Committee also review IA’s report. He suggested that IA take advantage of what it learned regarding how other school districts manage complaints and review whether the Committee and Department need to propose policies to address systemic issues. He also suggested that IA discuss what data the Department needs to collect so that it could successfully advocate for positions and funding from the Legislature. He emphasized the importance of vetting information completely and thoughtfully prior to requesting positions and funding from the Legislature.
ACTION: Motion to defer the Department’s investigation process review to the Human Resources Committee for the Human Resources Committee and the Office of Talent Management to conduct further review prior to being returned to the Audit Committee for the Audit Committee to take action (De Lima/Kawano). The motion carried unanimously with all members present voting aye.