Student and Staff Investigations

1. Administrator Professional Development Howell Public Schools May 13, 2014 Download this presentation now at www.LuskAlbertson.com/HowellPD2014 Student and StaffInvestigations Presented by: Robert T. Schindler Lusk & Albertson PLC RSchindler@LuskAlbertson.com Follow us on Twitter: @LuskAlbertson Following Proper Procedure and Avoiding Pitfalls

2. When are Investigations Needed? • Student Issues • Fights, Altercations • Inappropriate Touching, Sexual Conduct • Allegations of Behavior in Violation of Student Code of Conduct (broad) • Staff Issues • Employee Conduct towards Students • Employee Conduct towards Other Employees

3. Why Investigate? • Informed decision-making • Adhere to due process requirements for student/staff member • Adhere to district policy • Create a record of activity • Occurrence • Response • Documentation for subsequent hearings • Be your attorney’s best friend!

4. How to Conduct an Investigation? “Just one more thing …”

5. Basic Rules of Investigation • Act quickly, but not hastily • Be comprehensive, but not crazy • Ensure retention of evidence – documents, electronic records, physical evidence, video surveillance • Obtain written statements • Be guided by District policies, Student Code of Conduct • Provide due process as required • “Suspension pending results of investigation” is a good thing • Notice to supervisor / HR

6. Investigations ofStudent Conduct

7. Due Process • Goss v Lopez, U.S. Supreme Court (1975) • A student has a “property interest” in a public education. • Due process is required before that right may be taken away. • Basic Tenants of Due Process • Notice of “charges” • Opportunity to be heard

8. Due Process (cont.) Central Question: How Much Due Process is Enough?

9. Due Process (cont.) • Suspensions of 10 days or less REQUIRE: • Oral or written notice of charges • Explanation of evidence • An opportunity to present student side of story

10. Due Process (cont.) • Suspensions of 10 days or less DO NOT REQUIRE: • A student to secure counsel • Allowing the confrontation of witnesses • Allowing the calling of witnesses on the student’s behalf

11. Due Process (cont.) • Suspensions of more than 10 days and expulsions • Require more formal procedures (Goss) • Must be notified of charges in writing • Generally understood to include right to secure counsel, confront witnesses/evidence and to call witnesses on the student’s behalf

12. Student Code of Conduct • USE IT! • Applying the levels and types of discipline stated in the Code of Conduct eliminates potential arguments of disparate treatment, favoritism, or arbitrary and capricious actions. • Allows you to easily justify decision to parents, administrators or others.

13. Interviewing Students/Obtaining Written Statements • Obtain story; use caution in how Qs asked • Have student write statement • Make sure salient details are included in written narrative • Make student amend as appropriate • Don’t have to contact parents in advance of interviewing; call if discipline will be issued • Don’t interview or “detain” the student too long • Administrator summary at end

14. Search & Seizure • Standard for Police • Warrant on probable cause for search • Standard for School Administrators • Two-Step Inquiry [TLO v. New Jersey] • Reason to suspect student violated SCC? • Reason to suspect evidence of violation of SCC exists in the area you want to investigate/look?

15. Search & Seizure • Practical Examples: • Search for Stolen Computer • Search for a Weapon • Search for Drugs • Hot Topics • Drug Testing • Cell Phones, PDAs • Internet Privacy Protection Act • Consent Issues • Can be addressed via policy

16. Internet Privacy Protection Act • Public Act 478 of 2012 • Sec. 4. An educational institution shall not do any of the following: • (a) Request a student or prospective student to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account. • (b) Expel, discipline, fail to admit, or otherwise penalize a student or prospective student for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.

17. Search & Seizure • Special Circumstances • Police and School Searches • Dog searches • Strip Searches

18. Interactions with Police Agencies • Police Interviews with Students • Don’t become agent for the police • Don’t have to call parents to advise of interactions with police (check District policy) • J.D.B.v. North Carolina – Lesson for the police

19. Case Study – “The Perfect Student” • 2011-2012 SY • 6th grade student, male • All Star Student; All Star Kid • Boys playing “Truth or Dare” • One boy “dared” to touch female students on their “private parts” • Reported by one student after lunch recess • First year Principal • Out of the building for the day (of course)

20. Responding to the Situation – Day 1 • Develop a game plan • Talk to other administrators; advise central office • Bring students in individually • Obtain stories • Obtain written statements • Contact parents of victims • Inform, reassure • Talk to perpetrator • Contact parents of perpetrator • Inform, detail seriousness, suspend pending outcome

21. Responding to the Situation – Day 2 • Second complaint at end of Day 1 • Additional interviews with students • Obtain additional written statements • Call back students, if necessary, to clarify details • Consult with central office regarding appropriate discipline • Keep notes of interviews, begin to formulate administrator report/summary

22. Responding to the Situation – Day 3 • Second meeting with student • Ask all clarifying questions • Advise of continued suspension • Provide access to school work • Advise of intent to seek expulsion • Prepare administrator summary • Communicate recommendation to central office • Maintain all files, materials, etc.

25. Why Important? • Student recommended for expulsion • Hearing before Superintendent • No appeal to BOE here, but could be • Formal complaint filed against Principal • Investigation by legal counsel • Charges of discrimination filed with Michigan Department of Civil Rights (MDCR)

26. Case Study Lessons • Begin by interviewing complainant • Notify them at the time that you may need to talk to them again • May interview alleged perpetrator next, but not necessarily • If you do, again notify that another interview may follow • Contact with parents (especially of victims) is crucial – beat the bus home • Act quickly but not hastily • Don’t be afraid to ask for advice • Don’t prejudge the situation • Document, document, document

27. Investigations ofStaff Conduct

28. Typical Types of Concerns • Conduct towards students • Verbally aggressive or inappropriate • Physically aggressive or inappropriate • Sexual contact • Conduct towards other staff • Harassment/Discrimination • Statements (ex: clothing) • Physical Contact, Leering (esp. sexual harassment) • Off-Color Jokes • Unprofessional Behavior • “Ill kill ‘em all”

29. Preliminary Considerations • Basic rules still apply, with some additional considerations • Sensitivity (keep conversation private) • Union involvement/representation • Involvement of HR • Many staff issues addressed at HR level • Minimally, HR should be in the loop • Documentation • Assist HR, legal counsel in understanding the full story • Don’t wait until it’s too late!

30. An Employee’sWeingartenRights“An employee is entitled to have a representative present at an investigatory interview by an employer if the employee reasonably believes that disciplinary action might result.”

31. Do Employees Have to Ask For a Weingarten Rep? Informing Employee of Predetermined Discipline Does the Weingarten Rep Have To Be a Union Steward? What If the Employee’s Chosen Rep is Unavailable? The Role of the Weingarten Rep An Employer Has Three Choices When An Employee Invokes His Weingarten Rights CBA Terms and Weingarten Rights Weingarten Rights

32. Case study – “Sexual Harassment?” • Male and female elementary teachers • Female teacher complains to building administrator about her treatment by the male teacher • Principal speaks to both teachers and three other staff members • Response • Spoke to male teacher and told him he was making her uncomfortable • Never documented issue; no letter in file • Two years later at BOE Meeting, female teacher: “I was sexually harassed and the principal didn’t do anything about it!”

33. Full Investigation Ensues • Teacher hires employment lawyer • Nearly 20 individuals interviewed • Investigation takes over two months • Investigation report of over 100 pages produced • Conclusion of investigation finds no evidence of sexual harassment

34. Case Study Lessons • Initial complaint should have been fleshed out more thoroughly • Investigation summary/report should have been produced • Investigation summary/report should have been gone over with complainant and conclusion put in writing • Complainant would have had a hard time disputing later, or at least District would have been able to deal with the result without new investigation

35. Other Important Investigation Considerations • The more documentation provided the easier to justify decisions now and later • Also easier to justify action in subsequent disciplinary situation • Level of outrage/attention should not dictate course of investigation or level of discipline • Be thorough in determining the issues (never assume it is simpler than it is) • Again, don’t prejudge what you believe to be the likely outcome • If there is any doubt, send it to HR

36. Questions? Robert T. Schindler 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5696 Email: RSchindler@LuskAlbertson.com