This is a bigger issue than Christine Blasey Ford and Brett Kavanaugh – rights of alleged victims, rights of alleged wrongdoers, witness credibility, evidence, burdens and presumptions, and due process in a time of 24/7 argument, opinions and accusations

This is a bigger issue than Christine Blasey Ford and Brett Kavanaugh – rights of alleged victims, rights of alleged wrongdoers or perpetrators, witness credibility, burdens of proof, presumptions, veracity of evidence, etc., are all needed in this time of 24/7 social argument, opinions and accusations – due process

For the most part discussions about due process are significantly lacking in this time of 24/7 social argument, opinions and accusations. And as a result, what you end up with are largely subjective arguments and opinions, based sometimes on evidence that appears solid but often based on incomplete facts or assertions, speculation, hyperbole, misinformed or uninformed or unqualified speakers or storytellers, or constructive misrepresentations or fraud.

Whereas, and for good reasons, there are rules to be followed as guideposts in a court of law, clearly that is not true in the case of 24/7 social argument, opinions and accusations. This would be a good time for renewed emphasis on rules and techniques for debate, and legal rules of evidence, burdens of proof, presumptions, rights of alleged victims and rights of alleged perpetrators, in addition to professionalism in journalism (such as the Society of Professional Journalists Code of Ethics  https://www.spj.org/ethicscode.asp).

For example, as general principles:

1.  An alleged victim has to prove his or her case the specified claims of wrongdoing with credible evidence;

2.  An alleged wrongdoer or perpetrator is entitled to know the specific claims and evidence that are asserted against her or him;

3.  An alleged wrongdoer or perpetrator is presumed innocent of the claims made, and is entitled to present her or his case and defenses to the specific claims with credible evidence, and to present evidence to rebut or impeach the alleged victim and his or her specific claims and evidence (and yes, the alleged wrongdoer can become a victim if the allegations made are unfounded); and

4.  Unless there is a law or legal principle that switches the burden of proof, the standard is that the alleged victim is the party who is first required to establish his or her case and specific claims with credible evidence, and, generally, an alleged wrongdoer or perpetrator is not required to establish her or his case or defenses to the specific claims until the alleged victim first sustains his or her burden of proof.

If a party, including an alleged victim or an alleged wrongdoer or perpetrator, presents weaker or less satisfactory evidence when it is within the power of that party to produce stronger and more satisfactory evidence, there is or can be a presumption or an inference that the evidence offered should be viewed with distrust.

In addition to the actual evidence presented (testimony and documents), the credibility of witnesses and evidence (testimony and documents) is of key importance.

See, for example, California Evidence Code §780:

Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of her or his testimony at the hearing, including but not limited to any of the following:

(a) Her or his demeanor while testifying and the manner in which she or he testifies.

(b) The character of her or his testimony.

(c) The extent, including causes and symptoms, of her or his capacity or impairment to perceive, to recollect, or to communicate any matter about which she or he testifies – including, for example, the passage of time since the date of the alleged incident, and, in most situations, evidence of a witness’s mental or emotional stability or instability.

(d) The extent of her of his opportunity to perceive any matter about which she or he testifies.

(e) Her or his character for honesty or truthfulness or for dishonesty or untruthfulness.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by her or him that is consistent with her or his testimony at the hearing.

(h) A statement made by her or him that is inconsistent with any part of her or his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by her or him.

(j) Her or his attitude toward the action in which she or he testifies or toward the giving of testimony.

(k) Her or his admission of untruthfulness.

See also Federal Rules of Evidence Rules 402, 608 and 613.

The failure to report an alleged occurrence or to communicate about an alleged occurrence also could imply that an event did not occur or occurred differently and could in that manner attack the witness’s credibility and truthfulness; however, generally the opportunity exists to explain the failure to report or to communicate about an alleged occurrence, and that failure does not create a presumption or an inability to testify, unless, perhaps, there is a requirement that the witness report the occurrence, which in that instance, also could present a per se violation of law. 

Thanks for reading. David Tate

 

 

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Ohio State University Urban Meyer investigation report and other information

The following is a re-post from http://workplacelawreport.com

I have provided below a link to a Yahoo.com Sports article about the events and investigation relating to Zach Smith, Urban Meyer, and Athletic Director Gene Smith, and a link to the investigation report and other documents provided by Ohio State University (which was also included as a link in the Yahoo.com Sports article).

I find this information fascinating, although I have only had time to skim some of the materials. It is fascinating for the fact that Ohio State included not only the investigation report, but also employment file documents. Although I have no way of knowing if Ohio State has been fully transparent, objective and independent in its investigation, the University certainly has gone to some length.

I am primarily interested in the investigation and the resulting report, and I will be providing additional comments about those matters in other posts.

I do note, however, something from the Zach Smith personnel materials – his 2017 Ohio State Football Assistant Coaches’ Performance Review (Public Record) under the “General” category “#27. Understands and adheres to University core values” has a “4” rating (meets expectations) which should be sufficient in most situations, but specifically does not contain a “5” rating (exceeds expectations), and I am wondering why it is a “4” and not a “5” – from what I have seen of Ohio State University, I would have expected that the University would have required a “5” rating, or included a comment that category #27 will be improved to a “5” rating. But, I’m also looking at this in hindsight which is a view that can be problematic and subject to error or misunderstanding.

Thanks for reading. More to follow. David Tate, Esq. 

Yahoo.com Sports article link:

https://www.yahoo.com/news/top-takeaways-ohio-states-urban-meyer-investigation-report-040137276.html

Link to the Ohio State University website page (provided in the Yahoo.com Sports article), containing documents pertaining to Zach Smith (including his personnel file), Urban Myer, and the report following investigation:

https://news.osu.edu/public-records-related-to-the-investigation-into-allegations-involving-urban-meyer/

 

Guidance For Workplace And Business Investigations

Guidance For Workplace And Business Investigations

The following are some comments as guidance for workplace and business investigations. We are seeing ongoing news about situations where investigations did not occur, and situations where investigations have been starting or are in progress, and also apparently where situations of alleged possible unlawful activity occurred or might have occurred but was not reported (although in some situations knowledge of possible unlawful activity might had been known). These issues don’t simply reflect on the accuser and the accused, but reflect on the business, nonprofit or governmental entity at issue, and, variously depending on the situation, elected representatives, executive officers, boards of directors and the board committees, general counsel, compliance and ethics professionals, HR, employees, perhaps internal audit and even the external auditor, etc., and throughout the entire organization or entity.

In the workplace setting, for example, an employer has a duty to take reasonable steps to prevent harassment, discrimination, and unlawful employment practices, and to correct inappropriate workplace behavior. See, e.g., California Gov. Code §12940(k); and 29 CFR 1604.11(d). An employer can be liable for the failure to investigate, at least if there was underlying unlawful activity. And a failure to investigate can be considered ratification of unlawful activity. In appropriate circumstances on a claim of wrongful termination, the question can become whether the employer acted appropriately and in good faith after conducting a reasonable investigation and based on a reasonable belief in that investigation – in other words, the reasonableness of the employer’s investigation can become the standard by which the employer is judged for alleged wrongful termination liability purposes.

The following are some of the issues and steps to consider or follow when determining whether an employer’s investigation of the conduct and situation was reasonable, and whether the employer had a reasonable belief in that investigation – did the employer or entity:

  • Take the complaint of wrongdoing seriously;
  • Maintain confidentiality of the situation to the extent reasonably possible;
  • Conduct a timely investigation, promptly after receiving the complaint of wrongdoing;
  • Decide and appoint an appropriate sufficiently independent and qualified person or committee to oversee the investigation, and for decision-making;
  • Consider whether the investigator will be someone in-house or from outside the entity;
  • Have the investigation performed by an investigator who is competent and knowledgeable about the relevant issues (including for example, as necessary, claims, defenses, applicable law, burdens of proof, presumptions, evidence, gathering evidence and showing required, etc.), and also how to conduct (and evaluate) investigations, investigation techniques, evidence (including, e.g., credibility, admissibility, whether the evidence or possible evidence is “A” or “B” or “C,” examination, confirmation or support, cross-examination, rebuttal or debunking, and impeachment), writing reports and opinions, and oral communications and testimony, and also note issues that might be present if the investigation is performed by an attorney for whom attorney client or work product privileges might be claimed – in short, work these issues out before the investigator is selected;
  • Consider legal counsel and possible other assistance needed;
  • Follow appropriate complaint investigation procedures;
  • Listen to and treat the difference sides fairly and equally;
  • Obtain, evaluate and understand the claims that are being made and possible defenses – including, e.g., claims based on a statute or section of law, a regulation, or a rule, and also claims based on some other standard such as any applicable policy, handbook, code of conduct, contract, collective bargaining agreement, etc. that had been enacted or adopted;
  • Provide the accuser with ample opportunity to offer evidence of his or her claims including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
  • Give the alleged wrongdoer fair notice of the claims being made;
  • Provide the alleged wrongdoer with ample opportunity to offer evidence in his or her defense, including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
  • When appropriate, provide and communicate an appropriate means whereby third parties can provide information that is relevant to the issues and the investigation;
  • Have the investigator conduct a thorough investigation, under the circumstances (note that in some circumstances courts have held that the investigation need not necessarily be perfect, but it should be sufficient, reasonable and thorough under the exigencies and circumstances at hand without the benefit of full discovery or a trial);
  • Have the investigator prepare a well-reasoned report and conclusions, supported by and based on objective evidence;
  • Have the investigator report to the decision-making person or committee;
  • Have the decision-maker or committee prudently and appropriately evaluate the claims, defenses and investigation; and
  • Implement progressive discipline if appropriate?

Of course, each situation is different, and for some of the above points the courts and regulatory agencies have provided additional guidance.

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

 

 

Defining The Board’s Oversight Of Risk Management

WHEREAS the board’s oversight of risk management is an ongoing topic of discussion and definition, NOW THEREFORE from time to time I engage in these discussions.

More seriously, in addition to my own research and materials, I read a fair number of discussions by other people and groups about director, officer, and board committee (audit committee) member responsibilities, rights, compliance, and liability.

At the bottom of this post I have included links to two recent posts by Norman Marks in which he discusses risk management. While I find that pronouncements and discussions by major organizations on these topics can be insightful and advancing, typically they are much less insightful and advancing than they should and can be. Topics such as corporate governance; board and board committee oversight, responsibilities and rights; business culture and values; auditing, etc., tend to move forward like molasses on a plate. Norman provides leading, worthwhile discussions – some of which I agree and some of which I disagree, but Norman does provide independent forward-looking and leading thought. Norman and I have different backgrounds – I find that in most situations the different backgrounds and experiences of the people involved should be acknowledged and noted, and encouraged, along with their viewpoints.

The following is a short version today of the board’s oversight of risk management – I say “today” because these are and will continue to be topics and definitions in development:  The board, its committees, and its directors oversee executive management’s successful achievement of the organization’s strategies and objectives, of which risk management is an integral component of the business processes.

The following is a longer more detailed version today of the board’s oversight of risk management:  The board, its committees, and its directors oversee executive management’s and the organization’s strategies, plans, and decision making for the successful achievement of the organization’s business strategies and objectives, of which risk management or enterprise risk management or what might happen is an integral component of the ongoing and regular business processes. Note: I added “or what might happen” from one of Norman’s discussions.

Note also, often oversight of risk management is delegated to a committee of the board, such as the audit committee, and in some industries a separate risk committee is mandated by statute, rule or regulation. Even if not required by law, it is still my belief that the overall board should address risk management oversight although having a committee of the board provide initial and perhaps more detailed oversight might be prudent and also legally acceptable. And I believe that these best practices also hold true for nonprofits even if a nonprofit is allowed by law to entirely delegate risk management to a committee of the board – the overall board should nevertheless still be involved in the manner that the board determines is prudent and in keeping with the business judgment rule.

Changing topics and under the category of other questions for consideration by directors (and also by officers and others) – and because I deal with these issues on a daily basis – from the different view of legal responsibilities and rights, liability, and reputation – short version – does the director reasonably believe that she or he can describe and explain, and support and defend his or her actions and inactions?

Or, longer more detailed version from the different view of responsibilities and rights, liability, and reputation – long version – does the director reasonably believe that she or he can describe and explain, and support and defend his or her actions and inactions taken and not taken to satisfy the director’s oversight and governance responsibilities under the microscope of crisis management, shareholder and proxy questioning, inquiries or contests, lawsuits, regulatory inquiries, employee questioning or inquiries, customer questioning, social media, investigations, and reputation attacks?

The following are links to two of Norman Marks’ recent posts on risk management:

https://normanmarks.wordpress.com/2018/03/09/is-the-goal-of-risk-governance-taking-boards-in-the-wrong-direction/

https://normanmarks.wordpress.com/2018/05/12/are-you-managing-risk-or-are-you-managing-the-organization/

Please see also the additional materials in this post below. Wishing you the best and success. David Tate, Esq.

 

 

SF Chronicle article – says new investigation report states that UC interfered with state internal auditor’s audit

Click on the link below for the Chronicle’s story, stating that a new investigation report concludes that UC interfered with the state internal auditor’s audit of UC, including changing survey answers or results. I have previously blogged about the state auditor’s audit of UC, and, frankly, as an ex-auditor and after having been involved in litigation as an attorney for many, many years, I was and still am complimentary that the state auditor held her ground and called thing as she believed them to be – that can be a tough situation to be in, and I would be interested to hear whether the state auditor herself felt any pressure from any sources.

Let me also add that I have heard stories for years about internal auditors and compliance professionals, and also, sometimes, external auditors, who have felt pressure to conduct their activities, or to report findings, in a manner that was contrary to how they thought a particular matter should be handled or reported.

It is my understanding that the investigation report will be coming out, perhaps today. I haven’t seen the actual investigation report – I always like to see the actual source information or document – too much “news” today is skewed with intentional or unintentional bias, or is incorrectly reported, or is reported in a summary manner that causes the “news” to not be correct or to be misleading, or is reported with an objective in mind, or uses adjectives instead of facts and evidence, or is anonymous or from anonymous sources, or is really more opinion than facts and evidence (“opinion-jour”), etc. And there are always two sides to a story, and sometimes three, four, or more sides. There was a saying several years ago, trust but verify. I believe the options are: (1) trust and don’t verify, (2) trust but verify, (3) question but verify, or be skeptical but verify, and (4) don’t trust but verify, or distrust and verify. I’m at least at (3), and often at (4). Below is the link to the Chronicle article:

http://www.sfchronicle.com/bayarea/article/Report-says-UC-president-s-office-improperly-12358268.php

That’s all for now. Of course, each situation is different.

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Etc.
  •             Insurance Coverage and Bad Faith
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg

 

 

Help with culture oversight and ERM – possibly where to start

Now that oversight of the entity’s “culture” has reached the boardroom, where do you start if culture hasn’t really been on the radar? As you might know, for example, whereas the new COSO ERM framework lists culture and governance at step one, it doesn’t go into too much detail or guidance about what these might include, but leaves it for every organization to decide for itself what enterprise risk management will involve and include in these and other areas and steps. If the organization’s culture really hasn’t been on the radar, I suggest that you consider or start with the employee handbook and policies, and the code(s) of conduct – evaluate whether those are currently sufficient or need updating, and then run through the ERM process for the conduct described or listed. Of further interest, below I have pasted snapshots of a current NACD website page discussing culture (and that you can obtain a NACD discussion paper online), a summary of a possibly ERM process (significantly based on the new COSO ERM framework), some additional governance, ERM and audit committee items, and a link to a new Norman Marks discussion “Do we understand what a Risk Event is?

Thanks for reading, and best to you. David Tate, Esq., Royse Law Firm (Menlo Park, California, office) – I have also posted this discussion to http://lawriskgov.com.

Overview of Possible Risk Management Process 10222017

Norman Marks “Do we understand what a Risk Event is: https://wordpress.com/read/feeds/254243/posts/1658495448

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg

COSO Enterprise Risk Management Framework ERM Components and Principles

NIST Cybersecurity Framework Tiers Summary

The Business Judgment Rule

In summary, as a general principle the business judgment rule provides that a director should undertake his or her duties:

-In good faith, with honesty and without self-dealing, conflict or improper personal benefit;

-In a manner that the director reasonably believes to be in the best interests of the corporation and its shareholders; and

-With the care, including reasonable inquiry, that an ordinarily prudent person in a like position with like expertise would use under similar circumstances. The rule itself doesn’t require a particular level of expertise, knowledge or understanding; however, as you might be aware, public company audit committee members do have such a requirement, and you can at least argue that, depending on the facts and circumstances, a board or committee member should have or should obtain a certain unspecified level of knowledge or understanding to be sufficiently prepared to ask questions, evaluate information provided, and make decisions.

Reliance Upon Other People Under the Business Judgment Rule

In the course and scope of performing his or her duties, a director must necessarily obtain information from and rely upon other people. An independent director is not involved in the day-to-day operations of the business. The director provides an oversight function. Pursuant to the business judgment rule, a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, prepared or presented by any of the following:

-Officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the relevant matters;

-Legal counsel, independent accountants or other persons as to matters that the director reasonably believes are within the person’s professional or expert competence; or

-A committee of the board on which the director does not serve, as to matters within that committee’s designated authority, so long as the director acts in good faith, after reasonable inquiry as warranted by the circumstances, and without knowledge that would cause reliance to be unwarranted.

That’s it for now. Thanks for reading. David Tate, Esq., Royse Law Firm, Menlo Park office, with offices in the San Francisco Bay Area and Los Angeles

 

 

More on Culture/NACD, and Risk Management

I did some weekend reading. The following are two items of interest.

New NACD Report on Culture

The following is a link to the page for the NACD Commission Report on Culture as a Corporate Asset – the complimentary material (28 pages) is worthwhile reading if you are not a NACD member: https://www.nacdonline.org/Resources/Article.cfm?ItemNumber=48256

Of course, the NACD culture report doesn’t carry with it any force of law or requirement, and, although the report is fairly specific while at the same time also vague in that it often refers to comments by commission members who are unnamed, the report is significant because it is provided and supported by a leading board director organization as an indicator that entity culture is an important area for board oversight.

New Post by Norman Marks About Risk Management

And from part of a blog post by Norman Marks about risk management, which you can see at the following link  https://normanmarks.wordpress.com/2017/10/14/is-it-about-managing-risk/

” . . . board should be asking these questions:

  • How likely are we to achieve our objectives?
  • If the likelihood is less than acceptable, why? What can we do about it?
  • If there is a possibility of exceeding our objective, what can and should we do?
  • What assurance do we have that management is taking the right risks, making intelligent and informed decisions?
  • Are there any risks that we should be concerned about, that merit our attention and possibly our action?”