Forum: Commissioning an Independent Review

Considerations for Trustees

By Kathleen B. Rogers    //    Volume 31,  Number 1   //    January/February 2023

It is not unusual for colleges and universities to find themselves in situations in which actions taken (or not taken) on their campuses lead to questions about their integrity and their commitment to professed ideals. These questions may come from within the institution, from regulatory bodies, or from the media or general public. And although most universities have robust internal processes for investigating and responding to such situations, there will be times—because of conflicts of interest, the involvement of very senior officers, or the sheer magnitude of the problem—when calling in outside help to establish facts, assess responsibility, and recommend remedial action may be the best way forward.

At such times, trustees are often asked to participate in the decision of whether to hire outside investigators, to assist with the investigation itself, or to receive and respond to resulting recommendations. What follows are some thoughts that I hope may be of help in thinking through these issues.

When Should You Consider Commissioning an Independent Review?
The decision to seek help in an investigation from outside the institution is sometimes relatively straightforward and uncontroversial. Two recent cases involving well-known universities required the analysis of a huge amount of data (32,000 documents in one case, 60,000 emails in the other) and prompted both institutions to hire outside investigators, who, in turn, contracted with subject matter experts to sift through the material. The volume of work to be done was simply beyond the capacity of internal staff.

More often, however, the decision is complicated by the concerns of those who recoil at the prospect of inviting someone “outside the family” to come in and look around. They worry about losing control of the narrative, about exposing lapses in judgment by senior administrators, or about creating expectations for transparency at a level that feels uncomfortable to them. All of these concerns are understandable, but none is particularly compelling.

If you are considering commissioning an independent investigation, it is because something has gone very wrong and the institution needs to put it right. An outside investigator will find it easier to ask difficult questions and deliver unwelcome messages—and will have less reverence for campus sacred cows. More-over, the results of an independent review will have more credibility than a self-examination. Rightly or wrongly, skeptical stakeholders will consider a report from an independent investigator more trustworthy, which is especially important if the report is favorable to the institution.

Considerations like these may have been in the minds of decision-makers when a school in the Southwest found itself facing a range of allegations of misconduct within the university’s football program. Given the importance of football to the university and the seriousness of the allegations, it was decided to hire a retired judge to review the charges. After completing his review, the judge recommended further investigation of two especially troubling allegations.

The outside law firm that conducted the follow-up investigation concluded that while some players felt pressured to play when they didn’t feel ready, there was no evidence that members of the coaching staff forced any player onto the field before the medical staff had cleared him. The law firm also found no conclusive evidence that the university’s football coaches or staff obstructed criminal investigations or engaged in retaliation or intimidation when the police or university investigated alleged misconduct.

It is doubtful that an internal investigation could have effectively addressed the widespread concerns of current students, athletic recruits, and parents that players were being fielded against medical advice. The external report was an important step in absolving the coaches and the university of bad judgment and restoring public confidence in the football program.

Who to Hire?
Once you decide to commission an independent investigation, the next question is who should perform the work. A law firm is the typical choice. A nationally or regionally known firm with an established higher education or corporate investigation practice is a good place to start. It is probably not a good idea to hire a firm that has represented your institution in the past; and especially avoid hiring a firm with personal or business ties to board members or senior management.

You should not hire a prominent alumna or alumnus for the job. You can and should confer with distinguished alumni for advice and referrals. Good lawyers know other good lawyers, and it is entirely appropriate to use alumni connections to arrange introductions to firms. But having alumni actually perform the work will reintroduce the very skepticism you hoped to quiet by choosing an independent reviewer.

If you nevertheless decide to stick with your regular outside counsel because they know your school and because trustees are comfortable with them, consider taking the approach of one eminent university that hired a nationally known firm it had never done business with to oversee the work of the legal team who conducted the investigation and who regularly advised and represented the university.

Some schools make a conscious decision to hire a firm located well beyond their campus gates. That’s what one university did when it hired a well-known East Coast law firm to investigate misconduct at a state university on the other side of the Rockies. Putting geographical distance between your campus and the primary location of the law firm may strengthen the perception that your investigators are neutral and unbiased.

Trustees may also want to consider hiring a team consisting of two firms, each bringing particular expertise to the table. A private college in New England did just that when it commissioned an independent investigation into an incident involving its students, staff, and campus security when there was speculation that race played a role. The school hired a partner in a local firm with experience in higher education and a lawyer from a national firm in Boston with deep experience in government investigations. Together, these two lawyers produced a comprehensive, persuasive report that explained what had happened and why.

But law firms are not the only possible choice. Schools have launched successful investigations combining external fact-finding with internal assessments of those facts to identify wrongdoing or missed opportunities. One of the most famous reports employing this approach is the widely disseminated 2012 report that investigated the pepper-spraying of its students at a California university by its own campus police. This university hired an internationally known security firm to ascertain facts and interview witnesses. The firm’s findings were then transmitted to a cross-functional team of faculty, alumni, and students, led by an experienced state judge who was also a faculty member. Including on this team constituencies who were personally interested in understanding how it was that students were injured by their own campus police made for a report that could be credited by all.

An outside investigator will find it easier to ask difficult questions and deliver unwelcome messages—and will have less reverence for campus sacred cows.

Determining the Scope of the Investigation
While not every independent investigation begins with a formal charge, my sense of best practice suggests that most should. A clear charge to the investigative team is your opportunity to establish the scope of the inquiry and to set guardrails for the investigators—to make certain that the investigation answers the questions you are most interested in and that it doesn’t wander into other areas.

When a Big 10 school found itself in the midst of a very large scandal that included allegations against a storied athletic coach, trustees established a select committee to oversee the independence and work of the law firm conducting the investigation. This small working group of trustees was responsible for ensuring that the law firm thoroughly answered three specific questions on personal knowledge and responsibility that had generated widespread media attention and to do so in a manner that would generate confidence in the university community and the public about the process and the outcome.

The group that determines the actual substance of the charge should consult widely and reflect the wisdom of many. Your board’s executive committee along with the
president, chancellor, and in-house counsel are likely to be a good forum in which to discuss the contours of the investigation.

The Report Itself
Once the charge is set, more questions follow. How should the report be organized and what exactly should it include? These questions are more complicated, and more important than you might think. As the client, boards have broad discretion to determine the style of report it wants, and trustees should feel comfortable sharing their expectations before the work begins. Should the report have a statement of objectives? Should it describe the process followed or the methodologies used to reach the findings or conclusions? Would you like to see charts, graphs, or tables if that would aid the reader? Would you prefer that the report be footnote-free? You can and should express your preferences so your board receives a report in the style that trustees prefer, not what the firm typically delivers. Here are some thoughts on common elements of investigative reports.

An Executive Summary. Effective reports begin with a succinct statement of the outcome of the independent review. The report on the pepper-spraying incident offers a fine example of this principle:

“The overriding conclusion can be stated briefly and explicitly. The pepper-spraying incident that took place on November 18, 2011, should and could have been prevented.” An independent report on Title IX failures at another university opened in similar fashion: “[the [u]niversity’s] efforts to implement Title IX were slow, ad hoc, and hindered by lack of institutional support and engagement by senior leadership.”

An executive summary that reports uncomfortable results upfront affirms the effectiveness of your board and your commitment to truth and transparency. A well-constructed executive summary, including a summary of key findings, can also serve as the document to be shared with community members and the public.

Findings of Fact. Thoughtful, unambiguous findings of fact are at the heart of a good investigative report. Getting to the truth is where lawyers will spend the most time and your school will spend the most money. This is not where your institution should cut costs or skip steps. Expect that the findings of fact will be examined thoroughly by many, including faculty, alumni, lawyers for potential plaintiffs, and the media. With that in mind, findings should be accurate, straightforward, and succinct.

Credibility Assessments. Investigators routinely assess credibility when they construct their findings of fact. It is a necessary part of the process. Whether such determinations are detailed in the final report, however, is more a matter of style. When the investigation is focused on the actions or inactions of particular university personnel, a determination of credibility may be of value, particularly as the board, president, or chancellor determine next steps. Retaining a senior administrator even though he or she made a grievous but honest mistake can be defended; but keeping an administrator who has been found to be untruthful or uncooperative may not.

Conclusions. Conclusions come in all sizes. I have seen reports of more than 100 pages in which the conclusion was expressed in a single paragraph. I have seen far shorter reports in which the conclusions extended to multiple pages. Often there is more than one important conclusion to be reported, particularly after a long and involved investigation. Deciding how to structure the conclusions should be left to the good judgment of the investigator. What trustees should insist on, however, is that conclusions be expressed so that they are both easily understood and appropriate to be communicated by the board to the wider community.

Contributing Factors. Some independent investigators offer valuable insights that do not fit neatly into findings or conclusions. One widely available report devotes three of its seven pages to what it terms “Contributing Factors.” The school’s work culture, management style, and the elimination of a faculty committee formed to ensure data integrity were all found to have contributed to wrongful reporting to a ranking organization. By identifying these broader concerns, this investigation shed light not only on what happened, but on why it likely occurred. For a school seeking to correct its processes, this section contains valuable information and may alone be enough to justify the expense.

Recommendations. The recommendation section is perhaps the most valuable to the board because it often offers advice to trustees on how management can and should prevent a reoccurrence. I have read reports that offer broad institutional recommendations as well as department-specific ones. Some reports suggest “restorative remedies” or include explicit directives to review past cases for “patterns, trends, and climate.” Some reports advise implementing training programs and urge trustees to invest more resources to ensure that university employees understand their responsibilities, particularly to students, and have the resources to meet them. One report I read recommended that all members of the board of regents attend trainings offered by AGB. Thoughtful, detailed recommendations help take the guesswork out of how to respond to institutional failures and provide a roadmap for restoring confidence within the university community.

A Note on Style
There is no such thing as “legal writing”—prose is either good or it’s not. But when lawyers write, particularly as a group, the product can be stiff and colorless. When commissioning an investigative report, trustees should decide beforehand the level of formality they expect of the final product. If the report is to be widely shared, style may matter a great deal. If you want members of your community to digest the findings and conclusions easily, you will want a final product not littered with Roman numerals and legal jargon, nor full of long, complicated, overly nuanced passages. Make it clear that you are not seeking a legal brief.

To Share or Not to Share?
The question that remains to be answered is, what should be done with the report once it is received?

Some schools decline to release the findings of an independent investigation, citing privacy concerns, particularly when students are involved: They argue that the facts and conclusions in a report are part of a student’s record subject to the Family and Educational Rights and Privacy Act, commonly known as FERPA.

But research for this article has demonstrated to me that many more institutions, both public and private, decide to share the results of investigations rather than choose not to. Declining to make a report public runs the risk of further churning in place of calming discontent among members of your community and the public at large. And in-house attorneys can advise on how to redact the report to honor privacy concerns while still reassuring the community that the investigation was thorough.

Perhaps more important, reports that are made available in the public domain— like the ones cited here—provide a valuable service to other boards of trustees facing similar problems. And to the broader academic community, they help explain how otherwise good people can make poor decisions and they articulate the serious harms that can befall students and employees when senior administrators neglect responsibilities, remain silent, lack vigilance, or fail to hold colleagues accountable.

Kathleen B. Rogers, JD, is retired from Simmons University in Boston, Massachusetts where she served as senior vice president/general counsel and secretary to the Board of Trustees. Email: kathyrogers726@gmail.com 

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