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Letter: MISD Must Put An End To 'Sham' Investigations

In a letter to the editor, Nicholas and Robin Wilt urge the Mercer Island School District to adopt new policies that bar the use of the MISD's attorney for investigations of wrongdoing and avoid conflicts of interest.

(Ed. Note: The following was also presented during the public comment period of the Dec. 13 Mercer Island School Board. The Wilt Family is currently involved in a lawsuit with the MISD. More about the lawsuit can be found here.)

On October 15, the Office of Administrative Hearings (OAH) issued a ruling against the Mercer Island School District (MISD) that took them to task for their handling of our son’s discrimination complaint last year. Among the many issues: MISD had Rachel Miller, a partner at the District’s own law firm, “investigate” the allegations. Superintendent Plano had told us that Ms. Miller was an “impartial” and “objective” investigator, but she was nothing of the sort: as an attorney for the District, conducting the investigation in a manner that imperiled the legal standing of her client would have been unethical.

Unsurprisingly, Ms. Miller’s “investigation” and the resulting report overlooked important information and drew questionable conclusions. In the 30-page ruling against the District, more than 3 pages are dedicated to enumerating the faults in Ms. Miller’s investigation, the resulting report, and the District’s unquestioning acceptance of the report despite our objections.

During the hearing, the District compounded its wrongdoing by refusing access to Ms. Miller’s records on the grounds that they were protected by attorney-client privilege. That confirmed our worst suspicions about the District’s motivations for having its own attorney conduct the “investigation” in the first place: not satisfied with tilting the playing field during the investigation, the District also sought to derive procedural benefits in the courtroom. Fortunately, when we brought the matter before the judge, she compelled the District to produce the documents in question.

During the hearing, Ms. Miller testified that she had conducted 60 or so similar investigations in the past. But if those investigations resembled the one that she did last year, then dozens of aggrieved students and employees may have been wronged exactly as we were. The conflict of interest is eminently avoidable: by retaining an attorney with no ties to the District and crafting a retainer agreement that specifically provides for the attorney to act as a Third Party Neutral under the Rules of Professional Conduct (RPCs) – the same protocol used by mediators - the investigating attorney can conduct an objective investigation and deliver a report that is fair to all parties. The costs to the District would be the same, since attorneys tend to charge the same hourly rate whether they are retained as an advocate, as a counselor, or as a third party neutral.

Given all that happened, imagine our surprise when we discovered that in September 2012, Mercer Island School District has authorized another “investigation” by none other than Rachel Miller! The lessons that should have been internalized, not only by our protests and by the conflicts of interest, but also by the proceeding, have been completely lost on the District.

We hereby call upon the Mercer Island School District to immediately cease their practice of having the District’s own attorney conduct “investigations” into allegations of wrongdoing. If an attorney is deemed necessary, that attorney’s investigation should be conducted under the auspices of the Third Party Neutral section of the RPCs. The Board can, and should, immediately pass a resolution to that effect. Anything short of that will lead to continued injustices wrought upon the citizenry of Mercer Island.

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