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Investigation, Resolution, & Consequences Policy Guide

Contents

General process to address all conduct concerns:

  1. Review all conduct concerns. CUAHSI will review all conduct concerns within reach of its Code of Conduct Policy [hence: Policy], raised through any of the means provided in the Policy, regardless of the relative power positions of the individuals involved. When CUAHSI acts under any provision of this Investigation Policy, it is exercising CUAHSI’s “discretion.1"
  2. Respond when feasible. CUAHSI will respond in some way when there is a conduct concern within the reach of the Code of Conduct Policy. However, the exception is when the initial review determines there is a lack of any credible question regarding conduct of concern, or available information is inadequate to make that assessment or to pursue a resolution.
  3. Non-coercion of targets. Identified targets will not be required or coerced to participate in a formal or informal resolution process; and will be able to choose whether to participate.
  4. Unavoidable limitations of authority. CUAHSI’s authority or practical ability to address concerns may be limited to CUAHSI-associated activities and/or CUAHSI employees or individuals acting on behalf of CUAHSI , groups, and entities, as outlined in the Policy.
  5. Engage to address concerns when feasible. Even where a credible question is lacking or can’t be determined, or the available information is limited, CUAHSI may still engage in problem solving with those individuals most directly involved in problem-solving (whether all are willing or not).
  6. Regarding who investigates. CUAHSI may, in its discretion exercised by CUAHSI Executive Director or CUAHSI Board of Directors chair:
    1. conduct its own investigation of a conduct concern;
    2. rely on facts determined in an investigation of the conduct concern by a third party (e.g., the home employing or educating institution of a CUAHSI community member), if a summary of facts found with supporting evidence is provided to CUAHSI, and CUAHSI determines in its discretion that the fact-finding is sufficient, or
    3. rely on its own and a third party's investigations to determine the facts. If CUAHSI relies in whole or in part of facts determined in a third party's investigation, CUAHSI nevertheless will reach its independent consultation as to whether a violation of the Policy has occurred and whether/what consequences are warranted.
  7. Regarding Special Requirements: CUAHSI’s response may differ depending on whether only the provisions of its own policies apply to a conduct concern—or whether contractual or legal/regulatory requirements of a sponsor or a federal or other authority also apply and impose additional or different requirements (“Special Requirements”).

    How to initiate the resolution process:

    Submission of a conduct concern by formal or informal means as described in the Policy is generally required to initiate a resolution process. However, CUAHSI may initiate a review or investigation on its own initiative when it has reason to believe there is a conduct concern under that Policy. That may occur, for example, when an individual files a disclosure. It also may occur if sufficient factual information is available regarding a widely known or credibly rumored concern, but no one has come forward to raise the concern through channels provided by CUAHSI.

    Roles and Responsibilities:

    Ethics Committee Members are assigned to address a particular conduct concern and are required to be free of conflicts2 that would interfere with their performance of their responsibilities. Ethics Committee Members may be CUAHSI senior staff, CUAHSI Board Members, or outside contractors retained by CUAHSI to perform this role.

    Ethics Committee Members are authorized to receive, initially review, and take any other necessary short-term action to respond to, a report of a conduct concern made by formal or informal means, or as otherwise directed by either CUAHSI’s Executive Director or Board of Director (BOD) Chair (hence: CUAHSI Leadership). The Ethics Committee is authorized to conduct a full investigation of facts relating to a reported conduct concern and provides findings and recommendations to CUAHSI Leadership.

    The Ethics Committee Chair coordinates investigations of conduct concerns. CUAHSI’s Executive Director serves as Committee Chair, unless another appointment is made by CUAHSI Leadership.

    CUAHSI Leadership is authorized to:

    • determine whether to rely on a third-party investigation for fact-finding;
    • require additional fact-finding by the Ethics Committee to supplement the initial investigation;
    • engage with any identified target and the accused (at least providing an opportunity for input) and possibly engage other individuals most directly involved, to determine a resolution;
    • applying the criteria specified below, determine the sufficiency of an informal resolution; modify the terms of an informal resolution or decide that formal resolution is needed;
    • make a determination in a formal resolution process of whether a violation of the Policy or any other policies has occurred;
    • decide what consequences to impose in a formal resolution if a violation is determined;
    • offer restorative or community-building practices, whether or not a formal complaint is filed, or a formal process and determination of a violation are made, and whether or not consequences are imposed; and
    • request and accept, modify or reject recommendations from the Ethics Committee.

    Informal Resolution:

    An “informal resolution” focuses on community building, not punishment—elevating understanding of why a conduct concern arose, enhancing understanding of Community Standards established by the Policy, repairing relationships, and seeking to satisfy the individuals most directly involved that recurrence of the concern is unlikely.

    Criteria. An informal resolution is sufficient to resolve conduct concerns when CUAHSI Leadership decides, and any identified target and the accused agree, that it is unnecessary to determine that the Policy has been violated (although there may be an indication of that likelihood). In addition,

    • the dominant need is to elevate understanding that harm was experienced and what conduct caused it, and to avoid recurrence, build community and ownership of the Community Standards, repair relationships, and, where implicated, restore safety and inclusion;
    • the concern arises primarily from misunderstandings that have been corrected, or lessons have been learned;
    • there is not already a recurring issue;
    • there is an authentic commitment to avoid a repetition of the cause of the concern, and there is no reason to believe recurrence is likely; and
    • considering all of this and the nature/severity of the conduct concern, safety and inclusion can be restored without further action.

    Alternatively, an informal resolution is sufficient when any identified target and the accused agree that a restorative or community-building practice is desirable as the sole means of resolution and CUAHSI Leadership determines that an informal resolution is likely to stem continuing harm to the individuals most directly involved and other CUAHSI Community Members and:

    • there is an acknowledgment by the accused that harm that the Policy seeks to prevent was experienced;
    • the informal resolution is likely to elevate understanding of why conduct caused harm and enhance ownership of Community Standards;
    • there has been an authentic commitment to avoid a repetition of the cause of the concern—and based on specified facts, there is reason to believe that the informal resolution is most likely to prevent recurrence without increasing harm to any identified target (and others in a similar position)— whether or not the current conduct is a repetition of prior conduct; and
    • considering all of this and the nature/severity of the conduct concern, safety and inclusion can be restored without further action.

    Process: With flexibility in steps, the informal resolution process:

    1. Typically involves the Ethics Committee conducting a review—i.e., limited fact-finding to understand the basics of the situation—and informally documenting the facts;
    2. Requires the Ethics Committee to engage with any target and the accused informally in some manner to inform them of the nature of the conduct concern, gain their respective perspectives, and gather any relevant facts about the situation (with the flexibility of means and sensitivity to any desire of a target not to engage directly with the accused);
    3. May involve the Ethics Committee engaging with other individuals most directly involved;
    4. Typically involves the Ethics Committee recommending an informal resolution to CUAHSI Leadership, applying the criteria above;
    5. Requires CUAHSI Leadership to—
      1. determine whether the fact-finding and its informal documentation are adequate;
      2. determine whether an informal resolution will suffice under the criteria specified above; and
      3. notify the accused, any identified target, and any other individual who reported the concern of the decision;
    6. May involve the Ethics Committee also notifying other individuals most directly involved; and
    7. Requires agreement (without coercion) among CUAHSI Leadership, any identified target, the accused, and any other individual most directly involved to participate in a restorative or community-building practice and that an informal resolution is preferred.

    Timing. Informal resolutions should be pursued diligently to complete the process in 90 days from the date of submission of a concern. However, the timing for an informal resolution must be flexible to provide an opportunity for any identified target or the accused to decide whether they want an informal resolution without being pressured.

    Formal Resolution:

    If CUAHSI Leadership determines, at any point, that an informal resolution is not sufficient to resolve the conduct concern, a “formal resolution” process is pursued. However, a formal resolution is not initiated or continued if CUAHSI Leadership determines there is an inadequate basis to seek any resolution.

    Process: Formal resolution involves ten required stages:

    1. The Ethics Committee gathers the relevant facts and documents, including communications.
    2. Before finalizing documentation, the Ethics Committee engages with any target and the accused to inform them of the nature of the concern, confirm that it is within the Policy's reach, and understand the facts from their perspectives.
      1. The Ethics Committee may confer separately with any target and the accused or together, depending on the nature of the concern and taking steps to avoid the risk of re-traumatizing a target.
      2. The Committee will allow each party to access the factual record separately and raise questions for the Committee to ask the other party. The Committee will ask those requested questions that they determine are likely to elicit relevant facts or surface credibility issues.
    3. The Ethics Committee provides the documented facts and any supporting documents and notes to CUAHSI Leadership.
    4. CUAHSI Leadership reviews the materials and requests any additional fact-finding to be undertaken by the Committee. The Committee follows through and submits any supplementary information.
    5. CUAHSI Leadership preliminarily determines whether a violation of the Policy has occurred and identifies the facts found by the Ethics Committee on which that determination is made.
    6. CUAHSI Leadership provides a copy of the preliminary determination and supporting facts to the accused and any identified target (“preliminary determination notice”).
    7. Any identified target and the accused have 14 days to access the factual record again and respond in writing, providing CUAHSI Leadership with facts or circumstances that the responder believes should inform the final determination and consequences.
    8. CUAHSI Leadership reviews any submission received.
    9. Upon expiration of that 14-day period, CUAHSI Leadership makes a final determination and imposes consequences if a violation is found.
    10. CUAHSI Leadership notifies the accused, any identified target, and any other individual who reported the concern of the final determination and any consequences. The notice of a final determination to the accused and any identified target will include notice of appeal rights and the conditions required to pursue an appeal. Any such notification will include a reminder of the obligation to maintain confidentiality until an appeal is decided or the appeal period expires without an appeal being filed

    Timing. The goal for completion of the process is 120 days from submission of the concern to the final determination. This may be extended for good cause, such as limited availability of individuals involved, difficulty in obtaining information, the complexity of issues and information, or resource capacity. CUAHSI Leadership will inform the accused and any identified target of any extension.

    Standard of Proof. CUAHSI Leadership will determine whether there is a policy violation using a preponderance of the evidence standard (i.e., more likely than not) or a clear and convincing evidence standard unless otherwise required by applicable legal requirements.

    Additional Responsibilities:

    The Ethics Committee and CUAHSI Leadership are responsible for the following:

    • Sensitivity to the human aspects of conduct concerns. Lend an empathetic ear to anyone in distress and refer them to resources for assistance. Respect choices made by any identified target regarding the target’s participation without violating applicable legal requirements. Avoid pressuring targets and those accused about options. Prioritize safety, as well as inclusion, while also satisfying legal requirements.
    • Confidentiality obligations of CUAHSI. To the extent feasible and not at odds with Baseline Requirements, maintain confidentiality about any conduct concern raised and the individuals most directly involved while carrying out the resolution process, to enable a fair review and meaningful resolution.
    • Confidentiality instructions to CUAHSI Community Members. To the extent not at odds with legal requirements, instruct those they need to communicate with in reviewing, investigating, and resolving a conduct concern to maintain confidentiality.
    • Record of review/investigations. Document steps taken, sources and substance of information and documents obtained, and communications with individuals as part of review, investigation, and resolution of a conduct concern. Include names, relevant affiliations and titles, dates, and times in the records in the record.
    • Internal Reporting. Report to the CUAHSI Executive Committee on conduct concerns and resolutions biannually.
    • Reporting-out. Report-out to the CUAHSI Members and the CUAHSI Community at least annually about the options for raising and resolving conduct concerns; the types and frequency of conduct concerns raised; and the status and manner of resolution, without revealing the identities of individuals most directly involved.

      Short-term Actions. Short-term actions that an Ethics Committee Member and CUAHSI Leadership may take when receiving a conduct concern include the following:

      • Safety. Ethics Committee Members must, if the facts warrant, ask individuals most directly involved if they need help to feel safe or have reason to believe that any individual needs to be temporarily made safe.

        • Initial temporary safety measures: After engaging with the individuals most directly involved or known to be affected, the Committee Member may require temporary separation of any individuals, require an accused or others to temporarily not participate in some or all CUAHSI-associated activities, or take other temporary action to address safety concerns.

        • Oversight: The Ethics Committee Member must follow up with CUAHSI Leadership promptly. They will determine the ultimate temporary safety measure—confirming or “adjusting” the Committee Member’s initial measure—and will do so in writing.
      • Notice to home institution: CUAHSI Leadership also may notify an accused’s home employing or educating institution of the alleged conduct concern that has been raised and the temporary safety measure(s) taken until CUAHSI makes a determination (may also notify any other institutions where the accused has an affiliation), if these criteria are satisfied:

        • CUAHSI Leadership has determined there is a credible concern that would be a serious violation of the CUAHSI’s Code of Conduct Policy and constitutes a substantial threat to the safety of people, not only in CUAHSI-associated activities but also in other roles and activities if the violation ultimately were determined to have occurred.

        • The notice will state: “CUAHSI received an allegation that [name] violated the CUAHSI’s Code of Conduct Policy by [Insert a brief, purely factual summary of the allegation]. CUAHSI has implemented temporary safety measure(s) [specify]. No determination (one way or the other) has been made about the allegation. In taking that action and giving this notice, CUAHSI is not making a judgment that the accused violated the Policy. CUAHSI does not authorize any statement or action to the contrary. In these circumstances, before a determination is made, CUAHSI prioritizes preventative safety measures based on the nature of an allegation in the interest of the CUAHSI’s mission and the many it serves, over the interests of one or a few, if the two must be weighed."
        • The names of the other individuals most directly involved will not be disclosed to the accused’s home or other institutions.
      • Confidentiality

        • Confidentiality of the identified target. CUAHSI will not name identified targets in communications about concerns raised, reviews or investigations conducted, or violations determined unless the target consents or CUAHSI Leadership determines a legal, regulatory, safety, insurance coverage, or other contractual requirements to do so.

        • Confidentiality of the name of the accused. Until a final determination is made, CUAHSI will not name the accused in any communication that may become necessary about the matter to the public or particular individuals unless CUAHSI Leadership determines there is a legal, regulatory, safety, or insurance coverage requirement to do so or it is part of a notice to the accused home and certain other institutions where the accused has an affiliation, as provided above.
        • Other exceptions. The other exceptions that permit naming any identified target or the accused are when CUAHSI Leadership, senior designee, or Ethics Committee Members determines there is a need to do so:
          • in confidential communications with those who are involved in or advising (a) the investigation or (b) determination of needed action or consequences or (c) implementation of temporary safety measures and (d) who are reminded of their confidentiality obligation or bound by a professional, ethical standard to maintain confidentiality;
          • to those who have a fiduciary or oversight function for CUAHSI, including a fiduciary duty to maintain confidentiality; or
          • in a notice to the target and accused of CUAHSI Leadership’s final determination of a violation of the Policy and right to appeal.

      Other Short-term actions. CUAHSI Leadership may take any other short-term actions, and may periodically adjust or end any actions, when they determine such action(s) are in the best interests of CUAHSI and its mission, pending a final decision resolving the conduct concern.

      • The engagement and oversight processes relating to oversight for temporary safety measures addressed above will apply.

      • However, in the case of an emergency imminently threatening harm to people or Property, those engagement and oversight processes may occur in lieu of, or promptly after, the Ethics Committee implements a temporary safety measure. Any needed adjustment will then be made as soon as reasonably feasible under the circumstances.

      Police Involvement. The Ethics Committee will ensure that any identified target of sexual harassment that may be a criminal act is aware of how to pursue police involvement (apart from any action by CUAHSI) and will not discourage the identified target from pursuing it.

      Consequences:

      A violation of the Code of Conduct Policy may result in the following consequences (including combinations):

      • Private reprimand;
      • Public reprimand or statement;
      • Removal or suspension from a volunteer position3;
      • Removal or suspension from a leadership position;
      • Administrative leave from any role for CUAHSI;
      • Denial or revocation of honors or awards;
      • Suspension or permanent prohibition from attending, making presentations, or otherwise participating in CUAHSI meetings, events and services;
      • Temporary or fixed-term no-contact requirements for the accused and identified target;
      • Notification of CUAHSI’s determination of a violation to the violator’s home institution (employing) and other institutions where the violator has an affiliation;
      • Disciplinary action, up to and including suspension or termination of employment for CUAHSI employees;
      • Restorative or community-building practice

      Considerations and Proportionality. Consequences imposed will be proportional to the severity of the violation and the corresponding harm caused or threatened to individuals, CUAHSI, the Water Science Field, or society-at-large.

      When Effective. Consequences imposed by CUAHSI Leadership as its final decision becomes effective upon the expiration of the appeal period if an appeal was not filed. If an appeal is filed, the Appeal Authority will decide the final consequences, which will become effective immediately upon notice to the authorized appeal parties of the final determination.

      Notice to Home Institution/Other Institutions. Upon the final decision becoming effective, CUAHSI Leadership will notify the accused’s home institution and any other institutions with which the accused has an affiliation of a determination that no violation of the Policy was found. However, such notice of the final decision will only be given if these institutions were notified of the allegation or if the accused requests that the notice is made.

      Appeal:

      An appeal of a final determination in a formal resolution process may be available to the accused and any identified target. An appeal of a final determination or consequences imposed is available only due to the existence of one or more of the following “appeal bases:” newly surfaced facts that were not previously available; consequences grossly disproportionate to the violation found; lack of facts to support the determination; a consequential conflict of interest by CUAHSI Leadership; a failure to fulfill process requirements with significant effects on the appealing person’s ability to address important considerations.

      Conditions for the right to file. The appeal conditions are:

      1. An appeal may be filed only within 14 days after the party receives notice of the final determination and any consequences imposed.
      2. The party must submit a statement of appeal, explaining the appeal basis and providing supporting materials.
      3. If the only applicable appeal basis is newly surfaced information, only documents reflecting the new information will be considered and should be submitted. Supporting information available when the final determination was made will not be considered. However, previously submitted information may be referenced if the new information alters the meaning or import of the previously submitted information.

        The “Appeal Authority,” who are individual(s) appointed by the CUAHSI Leadership, will decide an appeal. The Appeal Authority assigned to address a particular conduct concern must be free of conflicts that would interfere with their performance of their responsibilities.

        The Appeal Authority will endeavor to decide an appeal within 45 days of receiving complete submissions from parties who file before the appeal submission deadline. However, the Appeal Authority may extend the time for good cause and will notify the parties of any extension. The Appeal Authority will decide the appeal based on the submissions unless it advises all authorized appeal parties of a need for amplifying information. Any requested amplifying information will be in written form. All authorized appeal parties will have access to the written appeal submissions (initial and any supplements needed by the appeal authority) and the final decision if requested. Upon deciding the appeal, the Appeal Authority shall notify the authorized appeal parties of the determination of the appeal. The determination is final.

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        1. CUAHSI’s discretion means CUAHSI’s decision, determination, judgment or application of criteria, is made in CUAHSI’s sole and absolute discretion in pursuit of its mission. Such discretion is still not arbitrary or exercised for an illegal purpose (e.g. to discriminate on the basis of sex or race).
        2. Ethics Committee Members, the CUAHSI President/Executive Director, BOD Chair, and anyone else acting for CUAHSI on a particular conduct concern are prohibited to have (1) any prior involvement or interest in the matter; (2) any known or anticipated future involved or interest in the matter; (3) any other personal, professional or financial conflict of interest concerning the matter or with any individuals most directly involved.
        3. Suspensions or leaves may be imposed by the Ethics Committee or Leadership on an interim basis as a short-term safety measure as outlined in the previous section.
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