Investigator Neutrality: Who Should Investigate?

In my previous article, I began a series discussing the questions I would ask if I were selecting a workplace investigator.  The first question was about how an investigator investigates. In this article, I want to turn to another important question:

Who should investigate?

More specifically, is the investigator sufficiently neutral to approach the matter with an open mind—and to give others confidence that they can?

What is investigator neutrality?

Investigator neutrality means more than simply the absence of actual bias. A neutral investigator approaches the allegations with an open mind. They do not jump to conclusions, make assumptions or begin the investigation with a predetermined outcome.

Neutrality is also about independence. The investigator should not have personal relationships, personal knowledge or interests that may affect – or reasonably appear to affect – their assessment of the evidence. They should have no personal or professional stake in the outcome of the investigation.  In other words, the investigator should have no skin in the game.

This does not mean that an investigator must have no knowledge of the organization. Nor does it mean that an internal investigator can never be neutral. The question is whether the particular relationships and circumstances surrounding the investigation could affect the investigator's ability to approach the matter with an open mind – or cause a reasonable person to question whether they could.

That distinction is important.

An investigator may genuinely believe that they can put aside a personal relationship or competing interest and remain completely impartial. They may be right.

But a fair process requires more than actual impartiality. It should also be free from a reasonable apprehension of bias.

In practical terms, are there red flags about the investigator's relationship to the people, events or organization that might reasonably cause someone to wonder whether the investigation was truly conducted with an open mind? Neutrality must be assessed on a case-by-case basis.

Why is neutrality important?

Imagine that you are accused of wrongdoing and discover that your ex-spouse is the investigator. In fairness to your ex-spouse, perhaps they are uniquely capable of putting aside any personal feelings and conducting a completely unbiased investigation.

But would you feel comfortable disclosing your side of the story?

Would witnesses have confidence that the investigator was neutral?

Would the person ultimately relying on the report be confident that your history had not influenced the findings?

The point is not that your ex-spouse would be biased. The point is that there is no reason to put either of you in a position where the fairness of the investigation may reasonably be questioned or where you must choose between personal and professional factors.

The same concern can arise in less obvious circumstances. When I am selecting an investigator, I want to know whether they have anything personally or professionally at stake.

Could the outcome affect their job security?

Are they friends with one of the participants?

Will the findings make it more difficult for them to continue working with their colleagues?

Does someone involved in the investigation have direct or indirect influence over their career?

I am surprised how often organizations put internal team members—most often Human Resources professionals—into these potentially precarious positions.  Just recently, I heard about an internal investigator at a municipality who was required to investigate allegations against his own Mayor. The matter had reached the headlines and the public was watching.  

Regardless of the investigator's eventual findings, it would be reasonable for members of that community to ask whether the Mayor could directly or indirectly influence the investigator's employment or future career. The concern is not necessarily that the investigator is biased. It is that the circumstances create a reasonable question about whether he can investigate without pressure or influence.

That concern alone can undermine confidence in the process and leave the organization vulnerable to challenge—even if an external investigator might ultimately have reached exactly the same conclusions.

What about external legal counsel?

In my opinion, similar questions can sometimes arise when an organization asks its external legal counsel to conduct an investigation.  This is not because external counsel cannot conduct excellent and impartial investigations. Many do.

The question is whether the firm's existing relationship with the organization creates connections to the people, events, policies or decisions under investigation that may reasonably call its independence into question.

That firm may be familiar with senior leadership, regularly advise the individuals involved or have drafted policies that are now relevant to the allegations. Participants may also perceive – even if incorrectly – that a firm with an ongoing business relationship has an interest in keeping the organization happy.

There can also be another complication: solicitor-client privilege.  If the investigation or decisions arising from it are later challenged, the investigator may be called upon to explain and defend the investigative process. That can place the investigator in the position of becoming a witness in the very matter in which they were acting as the organization's legal counsel. Questions may then arise about the extent to which communications, advice and other information can remain protected by solicitor-client privilege.  As someone who has worked as both external and in-house counsel, the last thing I wanted was to become a witness in my own case.

Again, this is not an argument that regular external counsel should never investigate. It is an invitation to examine the particular relationships and roles surrounding the matter and ask whether they create concerns about neutrality, independence or the complications that can arise when the roles of lawyer and investigator overlap.

The cost of getting it wrong

The consequences of a flawed investigation can extend well beyond the investigation itself. Courts may scrutinize the fairness and impartiality of an investigation when reviewing decisions that were based upon its findings. A process affected by prejudgment, confirmation bias or a lack of impartiality may undermine an organization's ability to rely on the investigation when defending those decisions.

If you have invested the time and resources necessary to conduct an investigation and make important decisions based upon its outcome, there is little sense in jeopardizing that work because reasonable questions about neutrality were not considered at the outset.

Litigation is expensive. Re-doing an investigation is costly and time-consuming. All of it is hard on your staff.  And once a process becomes public, the reputational consequences can extend far beyond the people immediately involved.

So, what should I ask?

This is not a pitch to hire an external investigator over an internal one.  Rather, it is an invitation to look carefully at both actual and perceived relationships when selecting an investigator.

Here are some of the questions I would ask when considering the appointment of an investigator:

• Does anyone involved in the matter have direct or indirect influence over the proposed investigator's employment, compensation, career or future professional relationship with the organization?

• Is anyone involved personally or professionally known to the proposed investigator?

• Does the proposed investigator have anything personally or professionally to gain or lose depending on the outcome of the investigation?

• Does the proposed investigator have personal knowledge of the people or circumstances involved that may cause them to make assumptions about credibility, motives or other evidence?

• Has the proposed investigator previously advised on or been involved in the events or issues now under investigation?

• Could the investigation's findings make it difficult for the proposed investigator to continue performing their other duties or maintain necessary working relationships?

• Looking at the circumstances objectively, is there anything that might reasonably cause a participant, decision-maker or court to question the proposed investigator's ability to approach the matter with an open mind?

If the answer to any of those questions is "yes," I would take a closer look before deciding who should investigate. Depending on the circumstances, I might choose someone else.

The right investigator is not necessarily the person with the most impressive credentials or the most experience. It is the person who can bring those qualifications to the matter with sufficient independence to follow the evidence wherever it leads.

Neutrality is not a quality that can be assessed in the abstract. It depends on the investigator, the organization, the people involved and the particular circumstances of the case.

When selecting an investigator, the question is not simply whether they are qualified to do the work. It is whether, in this particular matter, they can do it with the independence necessary to earn the confidence of the people who must participate in – and ultimately rely upon – the investigation.