November 18, 2021 — Among the many physical hazards PEF members face on the job is the additional risk of being charged with abusing or neglecting the individuals they help.

This is especially true for members who work at state agencies that are subject to oversight from the state Justice Center for the Protection of People with Special Needs.  Those six agencies are the Health Department, Education Department and four state offices: of Mental Health; for People with Developmental Disabilities; of Children and Family Services; and of Addiction Services and Supports.

PEF provided expert advice on how to avoid and if necessary respond to Justice Center investigations and charges at a PEF Convention workshop in October.  PEF field representative Meghan Keegan and attorney Emily Hannigan conducted the workshop.

The first advice they gave attendees: You can be pro-active in heading off possible incidents that might result in charges.  You should report any unsafe conditions in your work area.  Report it in writing, and/or grieve it.  For instance, if a door is supposed to automatically lock when it is closed, but it does not do so every time, report it in writing.  The report might protect you if an individual who should not go through that door does get through it.

Keegan and Hannigan said you should always take any interactions with the Justice Center very seriously.

“Even if the state Justice Center finds that charges against you are unsubstantiated, your agency may still go after you,” Hannigan said.

Any time a Justice Center investigator approaches you (in person, phone or email) and wants to talk, always ask: “Is this voluntary?”  If they say yes, you should politely decline to participate.  If you’re unsure what to do, ask to speak to your PEF field representative first.

Hannigan, who represents people who face such charges, said these cases can take three tracks: administrative; disciplinary; or criminal.

In administrative cases, she said, there can be three levels of findings:

  • Category 1 involves serious physical or sexual abuse, or other serious acts such as abuse or neglect. If you are found guilty of a Category 1 offense, you may be permanently added to a “Staff Exclusion List” that will bar you from working with persons who have special needs.
  • Category 2 involves abuse or neglect that seriously endangers the health, safety or welfare of an individual. Such a finding will put you on a “Vulnerable Person Central Registry” (VPCR) for five years.  If you get two Category 2 findings in three years, you may be permanently barred.
  • Category 3 covers lesser levels of abuse or neglect and although you will be on the VPCR for five years, it will not be viewable in a background check. Multiple Category 3 findings may not be upgraded to a Category 1 or 2.

You have rights and PEF will be there to ensure your rights are respected.  These rights include:

  • Protections provided in the PS&T contract;
  • You have a constitutional right to remain silent and have an attorney present during a criminal interrogation. However, your employer may deem your refusal to answer insubordination;
  • Representation by PEF in some instances when the Justice Center questions you;
  • “Use immunity” for any compelled statement you made to the Justice Center; and
  • Representation by an attorney if you receive an administrative charge from the center. That legal representation will cover such things as requesting an amendment, pre-hearing and final status conferences, and an administrative hearing.

“If you get a substantiated report, get a copy of that letter to your PEF field representative as soon as possible and request an appeal,” Hannigan said.  “I will write that request for an appeal for you.”  Don’t take your time. Move quickly because if it goes past 30 days, “you may have waived your chance for a timely appeal.”

Interactions with the Justice Center usually involve their investigator (Keegan used to be an investigator for the center) asking you questions.  These interactions are either an interrogation or an interview.  You need to know which it is and should ask: “Is this an interview or an interrogation?”

Essentially, it is an interrogation if you are being questioned about something that could result in discipline. If you are directed to speak with the Justice Center, it is compelled. PEF members are only entitled to union representation during interrogations.

“An interview is not when you are asked to do an incident report,” Hannigan said.  “An interview is different and it may be with any person who the center’s investigator thinks may have information about a reported incident and who is not the individual named in the report as having committed an act of abuse or neglect.  The center refers to such persons as “non-targets,” “non-subjects” or “witnesses.”

“It is always crucial to ask, ‘Is this voluntary?’ and if they say yes, you should say that you do not want to participate,” Hannigan said.

If the investigator insists on speaking to you, then you should state that you need union representation and must reschedule the interview so that you can obtain that representation.  Your right to union representation is set forth in Article 33 of the PS&T Contract, which contains your “Bill of Rights.”  Your request for union representation should be stated on the record or documented.

This may be a criminal investigation and any voluntary statement you make can be used against you in a criminal proceeding.

If you can’t get a straight answer on whether the questioning is voluntary, tell them, “Based on your questions, I believe I am entitled to representation.” And get that statement on the record or documented.

“Try to get the questioner’s response in writing as to whether your participation is voluntary or compelled,” Hannigan advised.

“You are never under any obligation to speak to law enforcement,” Hannigan said.

If the investigator says you are a witness and are not entitled to representation, then ask them to put that in writing, and call your PEF steward or field representative for further advice.  If you are not allowed to obtain representation, you may still be compelled to answer questions under penalty of insubordination.  In this scenario, you will want to call your PEF steward or field representative as soon as possible.

If the investigator says the interview is not voluntary you must answer the questions truthfully or risk being charged by your employer with insubordination.  Although your compelled statement may not be used against you in criminal prosecution, it may be used against you in a disciplinary or administrative matter.

What starts out to be an interview with you as a witness, can turn into an interrogation with you as the subject or target.  If the person questioning you decides at some point that you are a likely subject for discipline, the questioner must tell you that.

“If the questioner suddenly decides that you are not just a witness and you may be charged, they are supposed to stop and alert you to that,” Hannigan said, “but that usually does not happen.”

Prior to the formation of the Justice Center, there was no requirement that people be notified of investigations into alleged abuse or neglect.  Now the Justice Center must provide written notification to subjects of investigations except in limited criminal matters.

If you are the target or subject of an investigation, it is all the more important to protect yourself.

If it is an interrogation, it should be recorded.  There should be nothing “off the record.”  Point out if you can’t recognize yourself or others in a video or hear clearly what is being said in an audio recording.

Here is how best to protect yourself in a compelled interrogation:

  • Meet with your PEF representative or attorney privately before the questioning begins and “walk through” your recollection of the incident;
  • Be truthful;
  • Be brief and stay on topic. Answer yes, no, I don’t know, or I don’t remember;
  • Testify to the best of your recollection and stick to what you know firsthand;
  • Take your time. Wait until the investigator has asked their entire question before you start to answer.  You can take notes as it goes along;
  • If you aren’t sure whether you understand the question, ask them to clarify it;
  • If you need to speak privately to your union representative during the questioning, ask to caucus with him or her outside of the room where the questioning is taking place;
  • If you have not been allowed to have a union representative with you, ask for one at the beginning of the questioning to get that request on the record, or if the questions start to look like you are being targeted then say that you believe you may be subject to disciplinary action and you want union representation.

Those are the things you should do at an interview or interrogation.  Here is a list of things you should not do:

  • Don’t bring any documents with you unless you are ordered to do so;
  • Don’t refuse to answer questions if the interview or interrogation is compelled;
  • Don’t guess or speculate about what someone was thinking during an incident or why they did or did not do something;
  • Don’t claim that you have not read the employee manual, facility policies or procedures. (Your employer likely has a document that’s signed by you saying you have read them.);
  • Don’t claim that you are not a “mandated reporter.” You have signed a code of conduct that acknowledges you are.

After the questioning ends, do not discuss it with anyone but your PEF representatives.  If you do, it could be viewed as obstruction.

If you receive a Report of Investigation Determination, do not ignore it.  Get a copy of it quickly to your PEF field representative.  Again, you have just 30 days to file a formal appeal if the finding in the report is substantiated.

Do not copy confidential patient information or records or remove them from the facility.

Things you should do after the questioning is over, include:

  • Ask for a copy of your recorded statement;
  • Provide any work-related documents that the Justice Center orders you to provide;
  • Save copies of any non-confidential policy, procedure or document that supports your actions; and
  • Save copies of any notifications from your employer regarding changed policies or procedures following the reported incident.

Additional information that was covered at the Convention workshop is available here.  If your PEF division would like to have training on this issue, please contact the PEF Education and Training Department or PEF Field Services at (800) 342-4306.