Mandatory Reporting Failure Investigation Procedures

Scope
1. These procedures are to be used when OCR initiates an investigation of a potential violation of the Mandatory Reporting for Relationship Violence, Sexual Misconduct and Stalking Policy (RVSM Mandatory Reporting Policy) by a Responsible Employee, Volunteer, or Undergraduate Student Employee.[1]
2. Failure to report under the RVSM Mandatory Reporting Policy is not a potential violation of the Relationship Violence and Sexual Misconduct and Title IX Policy; grievance procedures applicable to that policy do not apply to potential mandatory reporting failures.

Definitions
1. Prompt report- generally means as soon as practicable based on the circumstances. The online public incident reporting form is available for reporting outside of regular business hours.
2. Relevance- Evidence is considered relevant if it has a tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in making a determination.

Procedures for Investigation
1. Start of an Investigation
  1. When OCR becomes aware of a potential mandatory reporting failure, it will assign the matter to an investigator to investigate and issue a memorandum setting forth the relevant facts and circumstances, as well as a determination on whether or not the Responsible Employee violated the RVSM Mandatory Reporting Policy.
  2. In reviewing the circumstances, OCR will generally seek to understand:
    - when and how the Responsible Employee became aware of the conduct that may be prohibited by the RVSM and Title IX Policy;
    - what details of the prohibited conduct the Responsible Employee became aware of;
    - why the Responsible Employee did not report, delayed reporting, or did not report all details known, to OCR;
    - whether the Responsible Employee sought clarification or guidance regarding their reporting obligations, and if so, from whom, and what guidance they were given;
    - the severity of the prohibited conduct and whether it presented a potential safety risk.
2. Notice to the Responsible Employee
  1. OCR will send written notification to the Responsible Employee when they are the subject of an investigation for a potential mandatory reporting failure.
  2. The notice will include a summary of the potential mandatory reporting failure, that OCR is investigating a potential violation of the RVSM Mandatory Reporting Policy, that the Responsible Employee has the right to meet with the investigator and may bring a support person or advisor to any meeting (including Union representation) with OCR.
3. Notification to Responsible Employee’s Unit/HR
  1. OCR will notify the Responsible Employee’s unit and the applicable HR unit of the mandatory reporting failure investigation.
  2. The Investigator will continue to provide regular updates to the Responsible Employee, the Responsible Employee's unit, and the applicable HR unit until the conclusion of the investigation.
4. Acceptance of Responsibility
  1. If after receiving notice of the investigation, a Responsible Employee accepts responsibility for failing to comply with the RVSM Mandatory Reporting Policy, OCR will prepare a memorandum summarizing the matter, including that the Responsible Employee has accepted responsibility.
  2. OCR will send the memorandum to the Responsible Employee, the Responsible Employee’s unit, and the applicable HR unit to review and take any follow up actions.
  3. If the Responsible Employee does not accept responsibility, the investigator will make findings of fact and determinations on violation of policy based on the information gathered.
5. Participation
  1. The University strongly encourages participation from employees and students in OCR investigations. However, participation is not required. If the Responsible Employee fails to respond in a timely manner or chooses not to participate, the investigation will continue based on the information available to OCR.
6. Evidence Gathering
  1. The Investigator will gather evidence relevant to whether or not the Responsible Employee fulfilled their reporting obligations under the RVSM Mandatory Reporting Policy.
  2. The Responsible Employee will have an opportunity to speak to an investigator and provide information.
  3. Statement Review – After an interview with the Responsible Employee, OCR will send a draft of the statement to review for accuracy and completeness. The Responsible Employee will have three (3) business days to review their statement and provide written feedback. If the Responsible Employee fails to respond timely, OCR will consider the statement to be complete and accurate.
  4. The Responsible Employee may identify other individuals who have relevant information. The Investigator has the discretion to decide not to contact such individuals (e.g. if it is believed that the information they would provide would not be relevant or would be duplicative of information already collected).
7. Sequencing
  1. OCR has discretion to coordinate the mandatory reporting failure investigation with any related investigation into the underlying conduct that is being investigated under the Relationship Violence and Sexual Misconduct and Title IX Policy, and not release the mandatory reporting memorandum until the underlying investigation concludes. However, this coordination will not always be feasible as not all underlying conduct will go through a formal investigation process, and such a delay may create an undue burden on the Responsible Employee awaiting resolution under this process.
  2. The case number for a mandatory reporting failure case will be noted in the case file for any related cases.
  3. To the extent information is obtained during a mandatory reporting failure investigation that is relevant to another investigation, OCR will document and consider the information in the separate investigation.
8. Presumption of Non-Responsibility and Standard of Evidence
  1. An individual is presumed to be not responsible for the reported conduct until a determination regarding responsibility is made at the conclusion of the investigation process, or if the individual accepts responsibility. The presumption may be overcome only where a preponderance of the evidence supports a finding that the individual is responsible for violating this Policy.
9. Decision
  1. The potential outcomes after an investigation include:
    1. Insufficient Evidence to Show a Failure to Report- after investigation, OCR concludes there is insufficient evidence to show by a preponderance that the Responsible Employee failed to report in accordance with the RVSM Mandatory Reporting Policy.
    2. Failed to Report- after investigation, OCR concludes there is sufficient evidence to show by a preponderance of the evidence that the Responsible Employee failed to report in accordance with the RVSM Mandatory Reporting Policy, or the Responsible Employee accepts responsibility.
    3. Failed to Report with Explanation – after investigation, OCR concludes that there is sufficient evidence to show by a preponderance of the evidence that the Responsible Employee failed to report in accordance with the RVSM Mandatory Reporting Policy, or the Responsible Employee accepted responsibility, and there are mitigating circumstances surrounding the failure to report. A non-exhaustive list of examples that may constitute reasonable mitigating circumstances include:
      - The Responsible Employee was told by their supervisor or office that they were not required to report;
      - The Responsible Employee reported to the wrong office;
      - The Responsible Employee has accepted responsibility for failing to report.
10. Memorandum
  1. At the conclusion of the evidence gathering phase, the Investigator will issue a memorandum which will include a summary of the relevant evidence gathered by the Investigator and a determination regarding whether or not the Responsible Employee violated the Mandatory Reporting Policy.
  2. The memorandum will be sent to the Responsible Employee and the Responsible Employee’s unit and the applicable HR unit to review and take any follow up actions.
  3. OCR’s investigation concludes after the memorandum is sent.
11. Sanction
  1. If a Responsible Employee is found to have failed to report, OCR will refer the matter to the appropriate process for discipline or corrective action facilitated by the Office of Employee Relations, Faculty and Academic Staff Affairs and/or unit leadership to determine the appropriate personnel action or other corrective measure.
12. Advisor/Support person
  1. The Responsible Employee is permitted to bring an Advisor and/or Support person of their choosing to any meeting with OCR.
  2. The Advisor/Support person cannot have a conflicting role in the process. The advisor/support person should not be a witness or otherwise have any conflicting role in the process.
  3. An advisor or support person who is verbally abusive; disruptive to the investigative process; or persists in trying to substantively interfere with the University process after a warning to cease and desist may be asked to leave and may be precluded from attendance at future meetings or conferences.
13. No Appeal
  1. There is no right to appeal a memorandum. OCR’s decision is final.
14. Documentation
  1. OCR will document mandatory reporting investigations and maintain such records for a minimum of seven years.

Personnel File
1. The employing unit determines whether the memorandum report will be placed in the personnel file in accordance with HR’s Personnel File Policy.

History
1. The procedures were effective on September 8, 2023.

[1] While these procedures refer primarily to “Responsible Employees”, they also apply to any potential failure to report by Volunteers or Undergraduate Student Employees who are obligated to report under the RVSM Mandatory Reporting Policy.