Legal Issues Presented by Duane Martin

Legal IssuesPresented by Duane Martin Columbia Office: Kansas City Office: 2401 Bernadette Drive, Suite 117 9237 Ward Parkway, Suite 240 Columbia, Missouri 65203 Kansas City, Missouri 64114 Office: (573) 777-9645 Office: (816) 333-1700 Fax: (573) 777-9648 Fax: (816) 886-3860 Guin Martin Mundorf

Topics • Senate Bill 54 – Amy Hestir Student Protection Act • Issues with E-mails • Records Retention Requirements • Residency and Homeless Students Guin Martin Mundorf

Senate Bill 54 Creates the “Amy Hestir Student Protection Act” Guin Martin Mundorf

Senate Bill 54 • If a student informs a school employee • of alleged sexual misconduct • by another school employee, • the informed employee and the superintendent must • forward the allegation to the Children’s Division (CD) • within 24 hours of receiving the information • for investigation by the CD. Guin Martin Mundorf

Senate Bill 54 Creates a task force on the prevention of sexual abuse of children that will make recommendations for reducing sexual abuse and may adopt and implement policy, including age-appropriate curriculum, training for school personnel, and school handbook information. Prohibits registered sex offenders or persons required to be registered from being a candidate for or serving on a school board. Guin Martin Mundorf

Senate Bill 54 Requires districts to adopt a policy by July 1, 2012, on providing information about former employees to other public schools that are potential employers. Employees following the policy in good faith will receive immunity from lawsuit and may ask to be represented by the attorney general’s office if sued. Requires districts to immediately suspend an employee if the CD finds a substantiated complaint of sexual misconduct, but the district may return the employee if the decision is reversed on appeal and becomes final. The statute does not prohibit districts from terminating even if unsubstantiated. Guin Martin Mundorf

Senate Bill 54 If a district terminates or allows an employee whose job involves contact with children to resign as a result of allegations of sexual misconduct substantiated by the child abuse and neglect review board and fails to disclose the allegations to a future employer, the district will be directly liable for damages to any student of a subsequent employing district who is found to be a victim of sexual misconduct by the former employee. The district will also be liable for legal fees, costs and expenses to the subsequent school district incurred due to the failure to disclose. Guin Martin Mundorf

§162.068, RSMo. Section 4 and 5 • 4. Notwithstanding the provisions of subsection 2 of this section, if a district that has employed any employee whose job involves contact with children receives allegations of sexual misconduct concerning the employee and as a result of such allegations or as a result of such allegations being substantiated by the child abuse and neglect review board dismisses the employee or allows the employee to resign in lieu of being fired and fails to disclose the allegations of sexual misconduct 44 when furnishing a reference for the former employee or responding to a potential employer's request for information regarding such employee, the district shall be directly liable for damages to any student of a subsequent employing district who is found by a court of competent jurisdiction to be a victim of the former employee's sexual misconduct, and the district shall bear third-party liability to the employing district for any legal liability, legal fees, costs, and expenses incurred by the employing district caused by the failure to disclose such information to the employing district. • 5. If a school district has previously employed a person about whom the children's division has conducted an investigation involving allegations of sexual misconduct with a student and has reached a finding of substantiated and another public school contacts the district for a reference for the former employee, the district shall disclose the results of the children's division's investigation to the public school. Guin Martin Mundorf

Senate Bill 54 Districts must disclose CD substantiated claims of misconduct to another public school that contacts the district for a reference on a former employee. Prohibits discharge or discrimination against a school district employee who in good faith reports alleged sexual misconduct of another employee. Guin Martin Mundorf

Senate Bill 1 • Requires districts to adopt a policy by March 1, 2012 concerning employee-student communication. • The policy must include: • the useof electronic media and • other mechanisms to prevent • impropercommunications between staff members and students. Guin Martin Mundorf

Policy must now only contain the following elements: • the use of electronic media and • other mechanisms to prevent • improper communications between staff members and students. Guin Martin Mundorf

Red Flags • If you fail to set standards of conduct clearly enough, District may be subject to claims that it should have prohibited harmful conduct. • If you go too far in limiting staff member speech, District may be challenged based upon First Amendment violations. Guin Martin Mundorf

Senate Bill 54 Allows access to FBI background checks for drivers employed by a contracted bus service. Expands required background checks to include a search of publicly available information available in electronic format. If an employee has passed background check for DESE licensing in the past year, they have met background check requirement for hiring. Guin Martin Mundorf

Senate Bill 54 Requires DESE to annually check current certificate holders against the state criminal history records, the sex offender registry, and the child abuse central registry. DESE is required to facilitate procedures for school district to submit personnel information annually on employees who do not have certificates so that those employees may be screened as well. Guin Martin Mundorf

Senate Bill 54 If a new employee has received a background check in the past year, a hiring district may conduct a new background check, but at the district’s expense. Any person who reports alleged child abuse to any school district employee will have immunity from any liability unless made in bad faith. Allows the CD to reopen a case for review upon request if new evidence is obtained that the CD’s decision was based on fraud or misrepresentation of relevant facts. The request must be made within 1 year after the decision. Guin Martin Mundorf

ISSUES WITH EMAILS • Increase in requests for district emails • FERPA • Sunshine Law • OCR • MCHR/EEOC • Subpoena • Litigation records request • Records retention requirements • Production of district emails may be mandatory Guin Martin Mundorf

Emails are often sought in order to establish inconsistent application of, ill motive in, or pretext for District action. Guin Martin Mundorf

Tips for District Emails • Draft emails as though a third party non-recipient is going to read them. • Be professional and avoid unnecessary commentary. • Limit email to one student/subject matter to the extent possible. • Remember that emails can be recovered even after the user has “deleted” them. Guin Martin Mundorf

Remember to comply with the district’s technology usage policy and agreement. Guin Martin Mundorf

Required Disclosure in Lawsuits • Remember, even closed records are subject to discovery in a lawsuit against the District or subject to a subpoena of a lawsuit involving third parties. • Strict rules now apply to electronic records. • Litigants will go to great lengths to recover electronic records. Guin Martin Mundorf

Records Retention Requirements • New schedules published August 2010 • “Record” v. “Non-record” • Application of the records retention schedule • Destruction of records • Preservation of permanent records Guin Martin Mundorf

Record • A "record" is defined as any "document, book, paper, photograph, map, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business" (109.210(5) RSMo). • This definition includes those records created, used and maintained in electronic form. Guin Martin Mundorf

“Non-Record” • Not all recorded information is a record. According to Section 109.210(5) RSMo, the following are not records: • "...Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of records..." Guin Martin Mundorf

“Non-Record” • Other examples of non-records include the following materials: • Identical copies of documents maintained in the same file. • Extra copies of printed or processed materials (official copies of which are retained by the office of record). • Superseded manuals and other directives (maintained outside the office of record). • Materials documenting employee fringe activities (blood donors, charitable funds, social and professional meetings, etc.) • Work papers and drafts of reports or correspondence. Transcribed stenographic materials. • Blank forms. • Materials received from other activities that require no action (official copies of which are retained by the office of record). • Catalogs, trade journals and other publications or papers received from government agencies, commercial firms or private institutions that require no action and are not part of an action case record. • Survey forms. Guin Martin Mundorf

“Non-Record” • Non-records do not require retention scheduling or destruction authorization or reporting. • To control excessive accumulation, it is necessary to keep only current, useful materials and to destroy non-records immediately after needs have been satisfied. • Avoid filing non-record material with records. Guin Martin Mundorf

Application of Schedule • The schedule is subject to the following exceptions and limitations: • Local government offices may retain any of their records beyond the retention periods set by the schedule, as they deem necessary. The schedule establishes only a minimum period of retention. • Before retaining a record longer than the minimum time required, however, the office should be certain that it has good reason to do so. • Unnecessary retention of records can be expensive in space and filing equipment and may expose the office to costly litigation and discovery requirements. • This schedule does not relieve local governments of retention requirements mandated by other state and federal statutes and regulations. • When such an obligation does exist, then the longer retention period takes precedence. • This schedule generally reflects audit requirements in its prescribed retention periods, but audits are not always completed in a timely fashion. • Therefore, any record required for an audit must be retained until completion of that audit, regardless of its stated retention period in the schedule. • This schedule does not authorize destruction of records that could be deemed relevant to current or pending litigation. Guin Martin Mundorf

Destruction of Records • The records classification and retention periods constitute legal authority for retention and disposal of official records. • No records can be destroyed until they meet the minimum retention period listed in this manual. • In cases where there is no schedule for a particular record series, the Local Records Board must grant permission for the destruction. • The disposition of records should be recorded in a document such as the minutes of the city council or other legally constituted authority that has permanent record status. • The record should include the description and quantity of each record series disposed of, manner of destruction, inclusive dates covered and the date on which destruction was accomplished. • The retention schedule does not prescribe the method of destruction (shredding, burning, landfills, etc.), however, record series with a disposition of Destroy securely contain confidential data. • These records should be destroyed under the supervision of a competent person(s) designated (or appointed) to ensure that no records fall into unauthorized hands and that the data cannot be reconstructed. Guin Martin Mundorf

Residency and Homeless Students Guin Martin Mundorf

4 questionsIs the student: • A “resident” student? • Homeless? • Exempt from residency requirements? • Entitled to a residency waiver? Guin Martin Mundorf

4 questions Is the student: • A “resident” student? • Homeless? • Exempt from residency requirements? • Entitled to a residency waiver? Guin Martin Mundorf

Homeless? Definition Examples living on the street, in a car, abandoned building or other form of shelter not designated as a permanent home living in a community shelter facility living in transitional housing for less than one year Children temporarily placed in foster care because of lack of shelter space Runaway or abandoned children Children living with friends/relatives because of loss of housing Children living in “doubled up” families because of loss of housing • Person less than 21 years of age who lacks a fixed, regular and adequate nighttime residence Guin Martin Mundorf

Immediate Enrollment • Homeless students must be enrolled immediately, even if lacking: • Previous school records • Immunization records • Proof of residency • Birth certificate or other proof of age • Proof of guardianship Guin Martin Mundorf

Choice of School? • School of Origin • The school that the child attended when permanently housed or the school in which the child was last enrolled • Local Attendance Area School • Any public school that nonhomeless students who live in the attendance area in which the child is actually living are eligible to attend Guin Martin Mundorf

Transportation • District must provide transportation to school of origin if requested • If school of origin is in different district from student’s current residence, both districts must determine how to divide costs of transportation or share them equally Guin Martin Mundorf

Q & A Guin Martin Mundorf

Legal Issues Presented by Duane Martin