Employers Council discusses process for investigations

Author: Marianne Goodland - March 21, 2018 - Updated: March 22, 2018

Colorado State Rep. Faith Winter, D-Westminster, is hugged after she delivered her remarks during a debate in the chamber whether to expel Rep. Steve Lebsock, D-Thornton, over sexual misconduct allegations against Winter and other peers March 2 in the State Capitol in Denver (AP Photo/David Zalubowski)

In the past month, Senate and House Republicans, as well as then-Rep. Steve Lebsock, have called into question reports that found allegations against those accused of sexual harassment credible. Colorado Politics recently sat down with Kim Koy, the vice president in charge of the legal division of the Employers Council, which conducted the investigations and came up with the reports, to discuss their process and how they determine credibility.

The Employers Council was initially brought in last November to investigate 11 allegations against Lebsock made by five women, including fellow Democratic Rep. Faith Winter of Westminster. In a redacted report initially released on Feb. 27 (the day after this interview), the complainants were found credible and the allegations “more likely than not” took place.

The Employers Council was also hired to investigate complaints against two Republican senators, Randy Baumgardner of Hot Sulphur Springs and Jack Tate of Centennial. So far, one allegation against Baumgardner was reportedly found credible. Baumgardner denied the allegation but gave up his chairmanship of the Senate Transportation Committee and agreed to take sensitivity training. Two other complaints are pending against Baumgardner, who is term-limited in 2020.

An allegation against Tate, which he also denied, was also reportedly judged credible. However, Senate President Kevin Grantham of Cañon City said he was working with the Council on that report and others to address concerns about bias and other “inconsistencies.”

Citing confidentiality rules, Grantham did not specify the problems he has with the reports. “My biggest concern” is the speed and lack of due process for those accused. He also questioned whether there would be an ability to appeal the findings.

Grantham has since asked the Denver District Attorney to investigate allegations that could rise to the level of criminal complaints, but she has responded by pointing to the General Assembly’s own process for dealing with those complaints.

House Minority Leader Patrick Neville of Castle Rock said after the Lebsock report was released to lawmakers on Feb. 27 that what he read left him with more questions than before the investigation started. That included questions about process and conclusions, he said.

The Council, formerly known as the Mountain States Employers Council, has been around since 1939. Koy told Colorado Politics that the Council has been conducting sexual harassment investigations for employers for the past two decades. “We’ve done hundreds of investigations into inappropriate conduct,” Koy said. The Council has six investigators, all attorneys and all experienced in employment law.

Koy also said they are knowledgeable about Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion, as well as harassment issues. That law also applies to employers with 15 or more employees, including federal, state, and local governments.

“We don’t take sides. We just collect the facts,” Koy said.

Each investigation begins with a call to the Council from a client. That call is routed to an investigations manager, who discusses the allegations with the employer. They talk about the possible scope of an investigation. An investigator is then assigned to the complaint.

The investigator first talks to the complainant. The investigation also obtains witness statements that are then written, reviewed and approved by the witness. The last person interviewed in an investigation is the person accused of misconduct.

Investigators are expected to be neutral and act as third-party fact-finders, Koy explained. “They have no stake in the findings.”

Among concerns raised by those investigated is the issue of credibility. The reports, according to KUNC’s Bente Birkeland, have called the complainants’ allegations “more credible than not.”

Koy said the Employers Council judges credibility on several factors, discussing those factors with the employer prior to the start of the investigation. Koy said the employer is offered the option of a credibility assessment. “Just because an investigator finds someone credible does not mean the other person is not credible.” At the same time, however, Koy said that if the investigator believes someone is being dishonest, “We’ll say so.”

There’s a legal precedent on the credibility issue, Koy stated, including case law from the Tenth Circuit Court of Appeals on what courts look at to assess credibility. Koy said that investigators are trained on that. Credibility is evaluated based on the person’s demeanor and level of cooperation, for example. “We work hard to make sure our investigators know what they’re doing.”

Once the report is done, it’s reviewed by a manager and sometimes even by that person’s boss. That can mean questioning whether the report makes sense as well as the credibility assessments. But she also said “it’s one person’s assessment, so someone else could have a different take on a person’s demeanor” or credibility.

The “more likely than not” determination, which has shown up several times in some of the reports, is a factual assessment but not one that says a person has done something illegal or otherwise violated law or policy. “We don’t make those (legal) determinations,” Koy said.

Marianne Goodland

Marianne Goodland

Marianne Goodland is the chief legislative reporter for Colorado Politics. She's covered the Colorado General Assembly for 20 years, starting off in 1998 with the Silver & Gold Record, the editorially-independent newspaper at CU that was shuttered in 2009. She also writes for six rural newspapers in northeastern Colorado. Marianne specializes in rural issues, agriculture, water and, during election season, campaign finance. In her free time (ha!) she lives in Lakewood with her husband, Jeff; a cantankerous Shih-Tzu named Sophie; and Gunther the cat. She is also an award-winning professional harpist.