comments on mcps proposal - ellen mugmon

8/8/2019 Comments on MCPS Proposal - Ellen Mugmon

1/48

CHILD ABUSE AND NEGLECT

COMMENTS ON PROPOSED POLICIES

AND PROTOCOLS

submitted

to

Montgomery County Public School

System

by

Ellen Mugmon

June

8,

2015


2/48

Introduction

I am pleased to be able to provide comments on the proposed child abuse policy. I have

taken the liberty to comment as well on the protocols and other related documents. Indeed It

was particularly imperative that I comment on the protocols because most of the provisions in

the protocols should actually be

in

the policy.

I

understand that the Board of Education only

votes to approve or disapprove the policy. This allowed the Department to submit

a

mostly

vague, aspirational child abuse policy with the vast majority of problematic, substantive

provisions added in the draft protocols. Even so, the draft policy is not without its own

significant problems.

In

any case, the misplaced provisions are particularly troubling.

Handling policy development this way permits staff to change the protocols, which are, in

essence, the policy, whenever they wish without proper oversight. This arrangement lacks

integrity.

While there are a few improvements over 1989 policy and protocols, I have found these

proposed documents to have serious flaws apparently as

a

result of the Department and the

unions basically writing their own rules, since ignoring current laws and regulations, court

decisions, and Attorney General opinions etc. was standard operating procedure when

educators and other employees were the alleged abusers. In particular, the 1991 Attorney

General's opinion was specifically promulgated to stop egregious practices that covered up

abuse in the Howard County Public schools that MCPS and MCEA, to this day, 24 years later,

still appears to want to retain by drafting loopholes in the proposed policy and protocols.

As

a

Board member, I would be reluctant to be on record approving documents that do not

comply with the law. Moreover, it has been my experience that child abuse policies and

protocols cannot be evaluated adequately without analyzing other relevant policies, protocols,

letters, forms, union contracts, and yet to be drafted relevant documents. An inability to

analyze and subsequently conform these documents can only result

in

inconsistencies, a lack

of cross references, and contradictory provisions that would most likely lead to continued

violations of the law and the continued questionable practices which have unnecessarily and

seriously harmed Montgomery County students for so many years.

I am, therefore, requesting that the Board wait to approve this policy until certain sections in

the protocols are amended and placed appropriately in the draft policy and until other policies

and attendant regulations and documents are written and reviewed by the public. This

includes the the Employee Conduct Policy (It is certainly unusual for a school systems to have

operated so long without this necessary policy.), the Memorandum of Understanding,

additional protocols to facilitate prompt notification of the Special Victims Investigations

Division Of the MCPD (See section B(a) of the policy) as well as other policies such as the

Sexual Harassment policy which needs to be revised to be in conformity with the Child Abuse

and Neglect policy. Unless this preliminary work

is

done, the Board would be evaluating and

voting on this critical policy

in

a vacuum. Moreover, I would recommend that both the policy

and protocols be subject to Board approval.


3/48

I am

a

longstanding child advocate in Maryland and an expert on child abuse and neglect

laws and public policy as well as criminal history background checks for those who have

access to children. Presently I am

a

member of Criminal Justice Information Advisory Board.

I,

however, am not speaking for this body.

I

have attached a list of relevant activities

highlighting my experience.

I would add that I have participated in drafting legislation and regulations and school system

policies and proffered both oral and written testimony for thirty years before various

committees in the General Assembly. I have also testified before the State Board of

Education, The Howard County Council, the Howard County Board of Education both orally

and in writing. This is the first instance where I have encountered

a

process which precludes

oral testimony.

Given the importance of the subject and the scandals surroundings this school system's

handling of child abuse cases,

I

was astonished and concerned that the Board did not deem

the Child Abuse Policy, which had not been revised since 1989, significant enough to

schedule a public hearing. Public hearings allow the citizens, beyond the Board, school

officials, the MCEA, and workgroup participants to proffer critical information based on their

expertise and also respond to what other entities or individuals contend during oral testimony.

(Please note that some members of the workgroup complained that they were left out of a

subset of individuals who directly drafted the policy and protocols.)

I

am therefore requesting that the Board reconsider its decision that this policy and its

protocols are not of widespread interest and concern (See the MCPS website.) to justify

a

public hearing. That

is

astounding. The Board has an obligation to postpone the date

scheduled for the Board to vote because the policy is premature and rushed. Moreover, after

June 8, 2015, the public should be able to review and testify about Mr. Civin's changes in the

policy and protocols, if any, before the Board takes final action.

I

have been a member of the last two committees formed by the Howard County Department

of Education for the purpose of updating its child abuse and neglect policy, regulations, the

Memorandum of Understanding. In my experience, HCPS process was

a

model of

transparency and cooperation in comparison to the approach employed by MCPS.

In

1998, as an aside,

I

was appointed to

a

joint MSDE and OHR lnteragency Task Force on

Community Collaborations to Protect Children. Interestingly, during one of the Task Force

meetings, Montgomery County educators touted the MCPS child abuse liaison program which

apparently was subsequently discontinued without an evaluation. When I briefly spoke with

Mr.

Zuckerman, he was unaware of it. Yet he claimed that this program idea was

a

recent

innovation. This gives me pause. Without historical knowledge, the same mistakes could be

made over again.


4/48

That is why an independent investigation is vital to understand why and how the abuse

continued for so long. If we understand -- if other schools understand -- no one needs to be

at the mercy of silence. When reputation trumps child safety, the silence of authorities

enables abusers to continue as each report gets buried .... It is up to institutions rather than

the victims to speak openly .... Who Knew What When? Yet no one in leadership in the

MCPS has commissioned an independent investigation. The longer the [Board members and

top officials] resist this, the more they communicate that they do not want to know the full truth

about the scale of the abuse or the cover-up perpetrated in [MCPS]. (Members of the

Survivors Group, in

Making Schools Safe, a

report on the Horace Mann School, May, 2015.)

My apprehension about the adequacy of the child abuse policy, protocols, the MCEA contract

and other related documents was further triggered by the Department's recommendation to

the Board to support HB 1033, Public and Nonpublic Schools - Sexual and Physical Abuse

Notifications and Prevention , introduced last session by Delegate Luedtke,

a

member of the

MCEA Board of Directors. According to its analysis, MCPS staff stated that [t]his bill aligns

with the recommendations for systemic enhancements to MCPS child abuse reporting policies

and protocols. The Board agreed and supported the bill. Its decision, based on

a

problematic review by staff, is alarming because the bill, in reality, contravened Maryland's

reporting law and two Attorney General's opinions. If it had passed, it would have

exacerbated the longstanding, inexcusable mishandling of child abuse cases by MCPS.

( I

would be happy to provide the Board with my testimony in opposition to this legislation which

included a copy of 76 Opinions of the Attorney General (1991) [Opinion No. 91-056

(December 17,

1991

)].

Hence, it has increasingly become clear that staff, MCEA, and the System's consultant,

Praesidium, are not aware of relevant Maryland Attorney General opinions, case law, child

abuse laws, as well as the Criminal History Records Check law etc. Ignorance, whether

studied or not, substantially contributed to the MCPS scandals. With all due respect, the

Board itself needs to ask questions about the advice it is given by staff. Staff members are

not necessarily experts in this area of the law and others recommending certain actions have

self-serving agendas.

But, most critical to child safety, the moral imperative to protect children appears to be

missing as evidenced in previous actions and documents promulgated by the school system.

For example, the Board initially supported the seven year gap in age in the 2014 position of

authority bill, which included a deplorable exemption for sex between a student and an

educator off-campus off-time. If

it

had been enacted,

it

would have continued to be legal for

25 year-old teacher to molest a

15

year- old student off campus- off time. The Board's support

for this exemption was in response to a request from a state senator. On the tape of the

discussion regarding this legislation, Board members admitted that they did not understand

the bill, but voted to support

it

anyway. Every action and decisions made by members of the

Board and staff must be viewed

in

light of the duty to prevent unconscionable betrayals of

trust of students.


5/48

Secret

files

The School System's version of the Boy Scout's scandalous secret perversion files criticized

nationally, and a major subject in lawsuits against the Boy Scouts across the country, is not

an acceptable substitute for abiding by the child abuse and neglect reporting laws

in

the first

place. See Top executives did not report suspected Scout abuse cases, files show

J.

Felch,

Los Angeles Times, December 12, 2012)

The existence of a confidential file documenting inappropriate/suspicious behaviors, better

defined as sexual abuse or exploitation of students,

is

established in the contract between

MCEA, other unions and MCPS. It is in the draft protocols, and already implemented by

Form 460-19, entitled, Reporting of Suspicious/Inappropriate Interaction with a Student

dated July 2014. This inappropriate conduct is defined as physical contact of a questionable

nature (sitting on lap, back rub,etc.) social communication unrelated to classroom activity

(texting, personal phone calls, etc.) excessive time with a student out of the class, or being

alone with the student under suspicious circumstances (room locked and/or dark,

in

personal

vehicle without parent's permission,etc.) Information contained in this report is

confidential

and is kept in a

restricted

database in

the

Office

of

Human Resources and

Development. (Emphasis is that of the MCPS.) (See Anderson v . State, for example,

decided by the Court of Appeals

in

2002

in

which

a

teacher was convicted of child abuse

in

his home after he gave a 14-year-old victim a ride after school.

After Joseph Pineda's sentencing hearing, the media reported that at least two schools had

developed Do Not Use files, although they sometimes did not check them. Nevertheless,

the idea of Do Not Use files must have been considered to be such a good idea that it

needed to be replicated county-wide.

The secret file provisions in the protocol and Form 460-19 exist in violation of the child abuse

reporting law, case law and certain opinions of the Attorney General (A.G.). For example, the

A.G. held that reason to believe is synonymous with suspects child abuse and neglect, not

a

higher level of proof such as witnessing child abuse and neglect or confession of the

perpetrator. Consequently, sections of the proposed protocols dated April 25, 2015 and

provisions in the employee contracts establishing the file and directing how this file is

supposed to work must be removed-. In addition, form 460-19 needs to be withdrawn as

well . -g

It is not the job of MCPS to determine if a child abuse report turns out to be valid or

prosecutable. Rather, it is MCPS' obligation under the law, to report suspected abuse and

neglect and leave it up to the Police, States' Attorney and DSS to investigate. This means that

the duty to report cannot be avoided through the mechanism of a secret report in a secret file,

where each incident is supposed to be treated separately in determining whether or not a

report is required.

In the recent case of

Daniel Picca

v .

Montgomery County Board of Education,

the State Board

of Education stated:


6/48

In affirming the decision to terminate this employee, we must emphasize our expectation of

school systems. The events chronicled in this case are shocking, not only because they

occurred, but they occurred over and over again for seventeen years. When confronted with

such obvious inappropriate behaviors on the part of a teacher toward his students, it is our

expectation and, we believe, the expectation of the school community, that the teacher will be

removed from contact with students with alacrity.

Recent child sex abuse cases have shown a bright light

in

that dark corner. We think that this

case can shine a light on

abusive conduct.. .of school staff toward children. That light,

however, does not yet shine in MCPS as evidenced by the MCEA contract, proposed

protocols and operating procedures outlined in Form 460-19 mentioned above.

Unfortunately,

MCPS and MCEA appear

to

believe

it

is

appropriate to

negotiate

Maryland s reporting law, an item which should be considered non-negotiable. Former

Superintendent Starr even declared this change

in

the contract as

a

step forward.

In

his

January 13, 2015 memorandum to the Board of Education, he announced that the Office of

Human Resources and Development has developed

a

process to improve tracking of

allegations of inappropropriate interactions between employees and students. This process

was developed

in

consultation with our employee associations, and is referenced

in

all three

of their contracts ....

Substituting a secret file of suspicious/inappropriate interactions with students for the duty to

report suspected child sexual abuse and exploitation, as well as giving the alleged offender a

bye for the first offense is repugnant. (Keeping centralized files of individuals where reports

have already been made after each incident, and the police, DSS, and State's Attorney

declined to pursue further action might be another matter only if there

is

independent

oversight.)

Indeed, the recent appointment of the school system's head of its Department of Association

Relations, Stan Damus, to the Child Abuse and Neglect Committee,

a

person whose job is to

collaborate and negotiate contracts with MCEA and the other unions, is troubling. It indicates

that the underlying intent of proposed changes is to cater to MCEA first and foremost, which

will result in the continuation of the same shocking procedures under a different guise.

But

the secret

file, especially

the one in the MCEA

contract,

is even more

alarming

because it makes it more likely that the handling of individual cases, which should

have been reported, in the first, second, or third place, will instead be inappropriately

subjected to internal investigations prior to reporting or failure to report at all as a

result of MCEA negotiations with Mr. Damus in his capacity as a member of the

Committee. Children, of course, have no similar representation to protect them and their

interests. Therefore, I do not agree with John Mccarthy's overly optimistic statement at the

sentencing of Jose Pineda that: The school system is cooperating with me now. I think they


7/48

recognize that a lot of what they did was indefensible. If so, that understanding would have

been be reflected

in

the policy and protocols and other issues discussed

in

this paper.

Apparently, MCPS

officials

are unaware of,

or

believe it is

their

prerogative,

to

ignore

Maryland Court

of

Appeals decision in 2013, Karl Marshall Walker Jr. v. State of

Maryland. According

to the Court: Child sexual abuse can be committed as part

of

a

single act

or

a series

of

actions and it is not necessary that the defendant

physically

touch the child in order to commit the crime. The Court further discussed the nature of

child sexual abuse which includes child exploitation and the expansiveness of the behaviors

that should be reported so that children can be protected. The General Assembly's concern

for the welfare of children, and the myriad of ways in which abusers can sexually exploit

minors, militates against unduly narrowing the scope of a statute that is reasonably worded so

as to reach

a

wide swath of behaviors, including those where

a

minor

is

sexually exploited but

not physically harmed.

Accordingly, on May

12,

2015, Lawrence Joynes plead guilty to sexually abusing girls

in

the

Montgomery County Schools. (Note: This case was not reported to authorities by MCPS.)

Joynes' attorney said that Joynes did not physically molest the

14

students at New

Hampshire Estates. She said

in

court that he pleaded guilty under the 'exploitation' provision

of the law. See the following article, Ex-Teacher Pleads Guilty To Sexually Abusing Girls

dated May 12, 2015 in The Washington Post. Apparently, school

officials

and union

leaders are

still

acting under the pretext

that

child exploitation is not part

of

the

definition of

child sexual abuse and is not reportable per the 2013 Court

of

Appeals

decision. See also comments above concerning Form 460-19.

Thus, the claim that the first incident, as well as an unknown number of other incidents may

not independently cause school officials to have

a

reason to believe that

a

report needs to

be made to external agencies

is

dismaying. Waiting

for

more complaints to come to

light

in order to create a pattern

of

inappropriate

conduct"

means

that

students must

repeatedly be

subject to

trauma, embarrassment and bullying until sexual abuse is

deemed to have occurred by school officials and therefore reportable. However, in

another document, there is a caution mentioned above that individual actions should be

evaluated separately. These kind of ideas comes to the fore in an institution whose culture is

centered first on the institution, the employees second, and children third.

See Section 3(d)(vi) of the April 15 draft of the protocols. This section is problematic and

should be deleted~ because the Employee Code of Conduct Policy to which it refers, and the

Memorandum of Understanding, mentioned above, has not yet been drafted, and the criteria

for the secret file is based on an incorrect assumption, that MCPS' interpretation of the

definition child sexual abuse is controlling as opposed to that of Maryland's highest court. In

addition, the public is not able at this time to see the Memorandum of Understanding and

comment upon it as I was allowed to do when I reviewed the policy and its attendant

regulations in Howard County. This provision exemplifies how to set up an insufficient public


8/48

review process. Consequently,

the Board should not take action on the policy because

it, along with the public, will not have all the interrelated documents.

Moreover, Dr. Starr's claim that current MCPS standards for handling these cases somehow

promote[s] a safe and secure environment in our schools and workplaces as reflected in the

protocols is unsupportable. See the January

13,

memorandum to the Board mentioned above.

According to Robert Shoop, a nationally recognized risk management expert on sexual

exploitation in schools, the seriousness of students being sexually exploited by trusted

professionals is not fully grasped by educators. The language frequently used to

describe this behavior 'boundary problems, 'poor judgement,' or 'inappropriate

behavior trivializes abuse and minimizes the professional violation.

Thus, the proposed policy, protocols, contracts, and other documents outlining procedures

for placing individuals in this or other confidential files actually encourage untrained school

officials with no expertise

in

child sexual abuse and exploitation investigations, along with

union officials, with an obvious conflict of interest, to inappropriately screen out reports of

sexual abuse and exploitation predicated on

a

mistakenly narrow operating definition of these

crimes.

In a flow sheet dated November 17, 2014, entitled, Process for Addressing Allegations of

Inappropriate Interactions between Adults and Student , the principal receives information

about inappropriate interactions from a staff member. The principal then screens this report

and initiates fact finding to determine if child abuse

is

suspected. The principal contacts

OSSI and the PECU in the OHRD with initial findings. If the principal thinks that the incident

is

child abuse after investigating, then the staff member who originally suspected child abuse

or neglect

is

told to report to CPS (as though they were reporting without an intervening

internal investigation), and the principal reports to the police if sexual abuse is suspected. The

staff member is not in the picture if the issue is suspected sexual abuse. The principal must

first conduct an internal investigation to determine if there was reason to believe to report.

This contradicts certain statements in the policy and protocols, but there are

a

number

vestiges of these illegal procedures which create loopholes that compromise the new

language and consequently jeopardize the CPS and Police Investigations to come after.

This course of action only serves,

in

my view, to protect the short term reputation and

interests of the school system as well as the interests of powerful unions and their most

problematic members who give the honorable teaching profession a bad name. This is a

recipe for more scandals and more unwarranted trauma and other harms to children.

Violating 76 Opinions of

the

ttorney

eneral

(1991) [Opinion No. 91-056

(December 17, 1991) in both the proposed policy and protocols. The crucial

distinction between consultation and consent.


9/48

Prior to the opinion cited above, school systems automatically performed extensive internal

investigations before reporting cases or prior to the police or social services arriving on the

scene where staff were involved. CPS and the police would complain that by the time they

were called or even arrived at the school, their cases were severely jeopardized because,

among other problems, alleged offenders destroyed evidence and parents refused to have

their children participate

in

another investigation.

School officials believed that they had the right to control all aspects of child abuse

investigations of educators and other employees just like they do

in

other types of

investigations on school grounds. In Howard County, the Associate Superintendent

interviewed the alleged abusers first,

a

poor investigative technique, and then the alleged

victims and witnesses. Alleged offenders were then asked to sign written statements and the

alleged victims and witnesses also had to sign statements prior to reporting or quashing

reports. Sometimes students were interviewed in the presence of the alleged offender, which

intimidated them.

Alleged offenders were almost always notified by colleagues and union representatives that

they would be subject to an investigation before it began. The HCPS (Howard County Public

School System) had drafted

a

written policy and memorandum of understanding codifying its

procedures in these documents until the Attorney General deemed that the way HCPS was

handling these cases violated the law.

It is my understanding (see above) that MCPS officials are conducting themselves as did

Howard County officials prior to 1991.

MCPS was unaware of this crucial Attorney

General s opinion until recently when a child advocate shared it with certain members

of

the

child

abuse

workgroup.

This lack

of critical

knowledge

lasting

24 years, and the

resultant entrenched support for the status quo,

in my view, is

a

major cause of MCPS'

longstanding mishandling of sexual abuse and sexual exploitation cases to the detriment of its

students. Knowledge of this opinion has yet to overcome prior bad practices.

It explains why MCPS has drafted proposed provisions in the policy and protocols that

circumvent

the

requirement that

no internal

investigation should

begin

until

DSS and

the Police have consented. In Section 8(2), the policy states that no MCPS internal

investigation may proceed without consultation with County partner agencies. That

is

not

what the Attorney General stated. Accordingly, consent must be substituted for

consultation+ and police or social services substituted for County partner agencies.".§. Only

those two agencies have the authority to decide when MCPS can pursue its investigation

In the draft protocols, section lll(B)(3(d)(4)(i) similarly states that MCPS internal

investigations may proceed only after 'consultation' with the County MDT participating

agencies and in accordance with the memorandum of understanding. Here also another

amendment

is

required. Consultation must be deleted and consent substituted and

police or social services substituted for County MDT participating agencies .

2

In section


10/48

lll(B)(3)(c)(iv), the protocols state that MCPS employees shall not discuss the allegations

with the alleged offender, without prior 'consultation' with the County MDT, in order to avoid

compromising the integrity of the pending investigations by external agencies. Again,

consultation must be deleted and permission substituted and police and social services

must be substituted for County MDT .l In section lll(A)(3), the protocols state that" [t]o the

extent that some preliminary inquiry must be taken .... that inquiry or action should be pursued

in consultation with the County MDT. Thus again in consultation with must be deleted and

substituted by with permission of the police or social services .§.

Consultation merely means an exchange of views. This word choice is a pretense which

ultimately allows school officials to begin an investigation whenever they choose. There is no

requirement to accede to the judgement of the police or DSS.

In further support of my recommended amendments, the Attorney General clearly states: The

school system should not interview the victim of the alleged abuse, the alleged abuser, or any

potential witness without prior consent of the local DSS or the police not the MDT.

Loophole after loophole is inserted in both the policy and protocols to circumvent the

Attorney

General s

opinion

in

order to

have the Board

ratify longstanding

illegal

practices which have engendered cover-up after cover-up. In another example, the

employee may ask limited follow up questions not listed in the MSDE model policy. See

below.

I also find section ll(B)(2)(b) in the protocols problematic for the same reasons. It states that

once an oral report is made to CPS, neither the principal or any other employees shall

conduct FURTHER internal investigations.

9

It implies that internal investigations conducted

prior to reporting for the purpose of determining whether there

is

reason to believe

a

report

should be made, is

a

procedure that is supposed to continue. This provision most certainly

refers back to the flow sheet mentioned above where internal investigations were always a

part of the MCPS reporting process. This provision along with others is inconsistent with the

reporting law and the Attorney General's opinion and other sections of the policy and

protocols which requires an immediate report and consent from authorities to speak with

those involved. It is increasingly clear that MCPS language discussed above is designed as

a

subterfuge by stating two contradictory courses of action which serve to create loopholes that

make

it

possible that internal investigations will continue to occur. Biased investigations

prior to reporting are not the standard in the law for reporting. Their use compromises

the health and

safety of children. Thus, this section must be deletedll. o forestall any

mistaken, confused beliefs that such investigations can continue.

The suggested limited questioning prior to reporting in Section ll(B)(e) of the protocols is

problematic. Asking for the name and description of the alleged perpetrator as well as the

extent of the child's injuries and where the abuse took place is crossing the line into

investigative questioning, especially regarding cases where the alleged perpetrator

is

an

employee. If the child gives the name of the alleged perpetrator prior to the report being


11/48

made, this information can get back to the alleged perpetrator before the police or CPS can

prevent

a

loss of evidence. Section ll(B)(1)(e) should be amended to suggest an open ended

question such as: What happened to you? Staff who any answers to this question should be

directed only to share this information with authorities. (This following question, not the others,

is recommended in the MSDE model

pol icy.)1Q

In another problematic provision, section ll(B)(2)(f) in the protocols states that the MCPS

employer, contractor, or volunteer making the oral report will immediately update his/her

principal or direct supervisor, as appropriate regarding any further consultation with or

information received from CPS the MCPD, or any other agency participating in the County

M D T . 1 1 Receiving confidential information does not confer the right to disseminate it under

law. Thus, this blanket directive is mandated in the protocols. However, this policy

demonstrates no concern for the child's confidentiality, or the possibility that the information

could be shared with the perpetrator or union representative, to the detriment of the

investigation. In addition, there is no definition of the key-words, as appropriate . Thus, this

section must be

dele ted.

11

(See discussion below outlining further concerns.)

Violations of student privacy through the re-dissemination of information in DSS

records to any number of MCPS employees through the mechanism of a

multi-disciplinary team meeting in violation of Section 1-202 of the Human Service

Article.

The widespread dissemination of information concerning the alleged victim called for in the

protocols is grossly insensitive and traumatic.

1 2

I am sure that parents of alleged victims

would be appalled to learn that when one or more MCPS Child Abuse Contacts learn of the

child's confidential information through the MDT, it can then be shared with the MCPS Child

Abuse Coordinating Team which includes (See section 1(0) of the protocols) the MCPS

System-wide Child Abuse Contact(s) as well as representatives from the Office of School and

Improvement (OSSI), the Office of Human Resources and Development (OHRD}, the

Department of Student Services


12/48

would be privy to private student information in DSS records which could later be used in

proceedings to defend the alleged abuser as well as the MCPS in a possible suit? This

re-dissemination not only creates emotional harm to the alleged victim, but it sets up backdoor

discovery. This is reprehensible, and the protocols must be revised to comply with the law

and to prevent harmful, unfair actions against the

student"

Consequently, the Attorney General in his opinion goes on to state that [t]he fact that a

school system representative on the multidisciplinary team may have access to information

concerning the child abuse investigation conducted by the local DSS and the police, this does

not end the analysis, because the authority to obtain information does not necessarily imply

the authority to disclose it to others .... Accordingly,the confidentiality statute does NOT

provide authority for the members of multidisciplinary team to disclose the confidential

information

contained in such

reports or

records to

other

persons

or

agencies.

Nowhere mentioned in the policy or protocols is

a

mechanism to address the need for the

superintendent to have investigatory information for disciplinary hearings. The General

Assembly enacted Section 1-202( c)(1 )(vii) of the Human Services Article. It permits

information in DSS child abuse and neglect confidential files to be disclosed upon request

only to the public school superintendent following

a

report of suspected child abuse involving

a

student allegedly abused or exploited or neglected

by: "a

public school employee in that

school system, an independent contractor or employee of an independent contractor who

supervises or works directly with students

in

that school system. Superintendents may not

further disseminate this information to other staff members. Consequently, the

protocols

should

make clear

that information

learned in the

multidisciplinary

team related

to

the

investigatory process STAYS THERE.

Information to help the student victim

is

authorized under Section 1-202(c)(v) of the Human

Services Article. It permits disclosure upon request to a licensed practitioner who, or

agency, institution, or program that, is providing treatment or care to

a

child who is the subject

of the report of child abuse or neglect for

a

purpose relevant to the treatment or care of the

child. This section can apply to the School-based Child Abuse Liaisons. Sharing DSS record

carefully for that purpose alone is legal.

Trauma-Informed and Trauma-Sensitive Practices implemented in

other schools

systems

across the

country

(See the programs developed in the state

of

Washington

and Massachusetts,

for

example, on

how

to create compassionate

schools.)

At the very least, this empathetic mindset should be applied in the MCPS policy and protocols

regarding the interviewing of alleged child abuse and neglect victims and witnesses on

school grounds. The proposed section lll(A)(2) in the protocols can only be described as

trauma-uninformed and trauma-insensitive.


13/48

There is an enormous body of research about how children's brains are affected by trauma,

including physical and sexual abuse and other Adverse Childhood Experiences

(

ACES).

Additional trauma can be inflicted by a lack of support and emotional safety which is denied

children when principals, for example, insist on inserting themselves in child abuse interviews

and/or asking questions, even when the victim would be intimidated, embarrassed, or

believes that the abuse is his or her fault, or that they are to be disciplined by the principal or

designee. This is a longstanding problem. The school system, however, has a moral

obligation to conduct ongoing training to ensure that the proper changes occur and to ensure

that principals, in particular, understand why current practices are unacceptable so that a

change in the culture

in

the school system occurs.

Child victims and witnesses should be allowed to determine if no one will be in the

interview from the school. To make that choice for victims is to reinforce the victim's

feelings that they are as powerless to express themselves in the interview

as they were

powerless to stop the abuse.

While the principal is required to consult with DSS or the Police about the concerns the

authorities may have if the principal insists on sitting in on, or interrupting the interview, some

principals have ignored these professionals' objections because they believe it is their

prerogative to know everything that happens in their school. Giving the victim and witnesses

a

choice about who will be in the interview, for example, along with eliminating the illegal

power of a principal to quash reports which is not clearly stated in the policy and protocols will

facilitate the truth. (There was an example of a quashed report

in

a recent newspaper article,

although the retired principal denied

it. In

2004, John Burley reportedly told a parent not to

report, that he would take care of

it,

and that scandal needed to be avoided. See attached

article.)

Indeed, what is so disappointing is the seemingly purposeful failure to use of the following

language drafted by experts at MSDE and OHR and the Howard County policy workgroup.

understand that the Howard County language was given to school officials. It describes how

principals are to proceed when DSS and/or the police are on school grounds to conduct

a

child abuse or neglect interview with students.

Therefore, the following language, entitled, Third Party Presence , must be adopted, rather

than resisted by school officials. In section lll(A)(2) of the protocols, there is no mention of

any such language. It is completely ignored. The Howard County policy has a version of this

language and the drafters of the policy and protocols have a copy of it.) This decision to

discard this provision should not stand. The amendment below must be included in both the

policy and the protocols:

In the event that a child is questioned by the protective services worker and/or police during

the school day on school premises in an investigation of child abuse and/or neglect, whether

the child is the alleged victim or non-victim witness, and whether the child has previously been


14/48

interviewed, the principal or the principal's designee shall determine after consultation with the

individuals from the local department of social services or the police, if a school official should

be present during the questioning. The school official should be selected with input from the

child, on

a

case by case basis. The purpose of discussion with police and CPS is about

providing support and comfort to the child who will be questioned. All questioning of the

victim or non-victim witness must be conducted by the police or representative of DSS.

In

general, state regulations express a preference for having a third party present during

questioning of

a

student except in circumstances where the principal or designee, in

consultation with the protective service worker [or the police], determine[s] that a third party

should not be present during a child abuse interview. This may occur, for example, where the

presence of

a

third party may intimidate and inhibit the child's responses. If the principal

refuses to accede, then the police or DSS can raise an objection with the superintendent."

13

A Dearth

of

Data

Accountability and transparency requires MCPS to collect relevant data to determine if the

system is complying with law and best practices. Accountability and transparency have been

made impossible because MCPS has failed to call for an independent investigation of the

school system's scandalous handling of cases. Praesidium, the consultant MCPS has hired,

will not be conducting an independent investigation. Furthermore, Praesidium has publicly

lauded the draft policy and protocols, and markets inferior criminal history background checks

that are not fingerprint based. Hiring them acts as a distraction from the necessity of

conducting an independent investigation. The company's public praise for the draft policy and

protocols is concerning, but not surprising, given the desire of all consultants to please those

who hire them and to whom they wish to sell their products.

The hiring of this consultant will do nothing to increase transparency or uncover facts

unknown to the public. One cannot fix problems without sufficiently knowing about them and

their scope. Most important, the consultant must be versed in trauma sensitive procedures

and Maryland law. Since MCPS at this point, will not ensure that an independent investigation

will take place, I believe, at the very least, that the school system invest in the collection of as

much data as possible to have some sort of accountability.

Unfortunately, the only data element listed

in

the policy deemed necessary to evaluate MCPS

compliance with the child abuse laws is the overall number of suspected abuse or neglect

cases reported to law enforcement or CPS during an unstated period of time. This is

unacceptable. It leaves the impression that any attempt to be accountable and transparent

concerning such a serious issue as a child abuse and neglect scandal in a school system with

a

history of appalling mishandling of such cases will not happen. Moreover, the policy does

not require even this one bit of information to be reported to the Board of Education or the

public.


15/48

MCPS would not have been the first Maryland school system to undergo an outside

independent investigation. For example, MSDE and subsequently a Special Counsel both

investigated the Anne Arundel School System after the notorious Ron Price case. These

investigations made public their findings and recommendations. ( I have those reports if school

officials want to see them.) The investigator concluded that

in

order to get all necessary

information, he absolutely needed subpoena powers. Reporting practically no data and

avoiding an independent investigation means that the public has to take MCPS at its word

with no verification. Entities that want to be trusted, however, provide evidence that they are

worthy of being trusted.

Hence the data elements listed below need to be added to section E(2)(a) of the policy.11

This is not an exhaustive list, but it is a lengthy one because there are no other accountability

measures. Additional recommendations regarding data elements should be sought by school

officials from the public.

•

Historical statistics since 1991, the date of the Attorney General's opinion, need to be

disclosed year-by-year to determine if progress has been made, and whether MCPS

has now come into compliance with child abuse laws, regulations, case law, and

Attorney General opinions, including the implementation of trauma-informed and

trauma-sensitive practices for students involved in child abuse cases. Also, please

note that the recommendations regarding data below refer to aggregate data, including

aggregate data in the secret file to be delineated from other data for as long as the

secret file has existed. Historical data should be reported as soon as possible. If any

data are unavailable or have been destroyed, school officials need to tell the public

specifically which data and why.

•

The school system must allocate the time to compile historical data to verify that it is

actually making a conscientious effort to hold itself at some level of accountability after

its troubled history, and that it takes seriously its obligation to protect children.

Historical data must be reported to the Board and the public. Current data must be

reported annually.

• The number of child physical abuse, sexual abuse (this includes sexual exploitation),

neglect, mental injury neglect and mental injury abuse reports made to DSS or Police.

•

The number and types of reports referred to authorities for vulnerable adults.

•

Reporting sources should be documented and broken down by certificated and

uncertificated employees, contractors, volunteers, substitutes, school bus drivers,

student teachers, as well as parents etc. Anecdotally, it appears that the vast majority

of cases reported to authorities involving employees, contractors and volunteers etc.

have been initiated by parents and students or others outside the school system.

Therefore, these data needs to be collected separately to document who has reported


16/48

suspected child abuse and neglect alleged to have been committed by someone in the

system. This includes individuals in the school system who have reported, categorized

by their position and the position of those reported in the school system

•

The number of reports involving individuals who were once students and subsequently

reported the abuse or other sexually related crimes committed by employees or

volunteers after leaving school.

•

Aggregate statistics should also be delineated by primary, middle school and high

school levels and by gender.

• The number of individuals currently in the school system's confidential files and how

long they have been

in

the file. The number and types of alleged misconduct. The

number of complaints each individual has received separated out by those generated

by students, employees, volunteers contractors and/or parents or guardians. The

range of discipline imposed by school officials for each individual. The number of

individuals in the file ultimately reported to authorities by school officials or others

outside the school system. The number of alleged victims by age and gender

discovered in the files and the number of schools where the individual had access to

students.

• The number of individuals in the files who resigned and the reasons for the

resignations and whether or not they received positive recommendations from the

school system. The number of individuals suspended or fired for child abuse related

incidents.

•

The number of individuals accused of position of authority, child pornography, second

degree assault (a common plea bargain down from sexual offenses), neglect, physical

abuse and assault, statutory rape, and, other related sexual offenses including, but not

limited to stalking, indecent exposure, and child pornography, etc. The resultant

disposition of these individuals

in

the school system.

• The number of individuals ever disciplined by the school system for failing to report

child abuse and neglect and/or blocking

a

report by category of employment. The

types of discipline imposed by the school officials for failing to report child abuse and

neglect or blocking a report. The number of individual reported to the police for

blocking

a

report. The penalty for interfering with

a

report in Section 5-702.2 of the

Family law Article is 5 years or a $10,000 fine or both. This penalty must be added to

Section V. on page 14 of the protocols. This crime can be reported even though it is

not mandated that

a

report is made .148


17/48

•

The number of children alleged to abused by registered sex offenders who have

regular access to them. This situation can be reported as well even though it is not

mandated.

•

The number educators whose certificates have ever been suspended and/or revoked

by the State Board for failing to report child abuse and neglect regarding children and

vulnerable adults.

•

The number of requests to the State Board to suspend or revoke a certificate for failing

to report.

• The number of certificates ever suspended or revoked for committing child abuse or

neglect or other sexually related crimes.

• The number of educators, contractors, other employees and volunteers who have

worked for the school system, even after committing sexual offenses or other sexually

related crimes or violent crimes. (There was one case recently reported in the press.)

According to

experts, no one

with

a

history sexually

related

crimes should

continue to be allowed to work or volunteer in any school system.)

•

The number of employees, broken down by category of employment, who have been

moved to another school within the system after violent or sexually related complaints.

The number of moves per each individual.

•

A description and number of professional development and educational outreach

efforts each year directed toward current staff, new teachers, students, parents,

school-based child abuse liaisons, substitutes, student teachers, school bus drivers,

volunteers, contractors and the community. The number and type of trainings per

each group annually.

• The number of investigative interviews concerning abuse or neglect by the Department

of Social Services and/or the police on school property during school hours. The

number of interviews where principals or designee have been present in the interview

with a rationale as to why their presence was necessary.

•

The number of confidential settlement agreements with educators accused of child

abuse or sexual offenses involving children or vulnerable adults.

•

The number of individuals flagged since 1987 by the Criminal Justice Information

System regarding state crimes. When I spoke to Mr. Zuckerman, he was unaware of

anyone who had been flagged. See below.

< a 1 1

bul let points)


18/48

Criminal History Record Checks

School officials may be under the misapprehension that individuals required to obtain criminal

history records checks under sections 5-560

et.

seq. of the Family Law Article can be

exempted if they do not have direct, unsupervised and uncontrolled access to children on

MCPS property. This exemption only applies to

a

contractor or subcontractor and goes into

effect on July 1 , 2015. In sections A(4) and C(4) of the policy the language could be

misconstrued because it is drafted so that contractors and subcontractors are in the same

sentence with new and existing

employees.1 5

1 6

This makes

it

seems that the exemption for

contractors and subcontractors is not limited to them alone. All certificated and

non-certificated employees, student teachers, substitutes, bus drivers have to be checked

irrespective of the exemption for 'direct, unsupervised and uncontrolled access to children.

Amendments should be drafted to clarify

in

both sections of the policy that the exemption

does not apply to anyone other than

a

contractor or subcontractor.

15

16

The required standard

in

the the Family Law statute

is

access to children without

qualification. It is the access to children which then triggers the mandate for state and

federal criminal history fingerprint checks. It is unfortunate that the exemption language was

added in HB 642 during the 2015 session without any definitions of supervision and what the

standards for supervision are and whether or not school system employees would be the

ones tasked with this supervision. It is also unclear what MCPS considers direct or

uncontrolled access. These terms are undefined. MCPS need to define access as strictly as

possible

in

the policy and protocols. MCPS has the option of enhancing protections for

children rather than just limiting them. Amendments should be drafted

in

the same sections to

define direct, unsupervised and uncontrolled access to children. 11

With regard to fingerprint based criminal history record checks, I have taken the liberty of

contacting Carole Shelton. Ms. Shelton is the Director of Maryland's Department of Public

Safety and Correctional Services Information Technology and Communications Division and

the Chairperson of the Criminal Justice Information Advisory Board. She mentioned that she

is available to speak with MCPS officials and possible send staff out to meet with MCPS

officials about the flagging system for state crimes enacted in 1987 and the new Rap back

program which the FBI announced is fully operational. Both these programs avoid the

necessity of redoing checks for individuals who have been previously fingerprinted. (The state

flagging system has no cost.) She would also be able to answer other questions regarding the

law. She would also be able to explain the pros and cons of private checks as opposed to

fingerprint based checks. Her contact information

is

available on the DPSCS website.

Other Issues

In Section

1 ( 1 )

in the definition section regarding contractors of the protocols could be

interpreted to limit the requirement to report abuse and neglect by a contractor only to when

the contractor has direct access or interaction with MCPS students on MCPS property or


19/48

during MCPS-sponsored activities. This needs to be rewritten so it does not violate Section

5-705 of the Family Law Article, which requires the reporting of child abuse and neglect by

everyone.ll Reporting is required whether or not the contractor has direct access or an

interaction with

a

student and whether or not that direct interaction took place on school

property of during MCPS-sponsored activities. This provision also appears to contradict ll(A)

and(B) of the protocols. For example, the contractor could hear from

a

teacher or another

contractor information that would give rise to a reason to believe that abuse or neglect took

place.

In Section ll(C)(2) of the protocols the principal or direct supervisor is instructed not to

distribute

a

copy of the Form 335-44 to the police and State's Attorney's Office in cases of

neglect. In 2010 neglect was made

a

crime. See Section 3-602.2 of the Criminal Law Article.

Under current law educators could be neglectors. Therefore, this section of the protocols

should be amended to delete In cases of abuse only."1.ll.

In

section lll(l)(B)(d)and lll(B)(2)(b) of the protocols, another loophole

is

created which gives

MCPS the right to inform the alleged offenders that that they have been reported for abuse or

neglect without asking permission first from the police and social services. This is under the

guise of protecting the best interests of children because MCPS ostensibly needs to develop

an action plan to protect the child. This section needs to be deleted.

20

If the alleged offender

is so dangerous that school officials cannot wait for the police and social services to start

conducting their investigations, or they cannot even wait to ask the police or social services to

give permission to speak to the alleged offender so that the investigation by authorities

is

not

compromised, then school officials need to call 911, or the Superintendent needs to place the

alleged offender on leave without giving the offender the exact reason why. Why should

children be made frightened by having to follow

a

safety plan

in

a

place where they are

supposed to be safe in the first place? The Attorney General did not give exemptions for a

action plans developed by a school system for a variety of reasons that would allow the

notification of the alleged offender that they have been reported. This is, in my view, a

subterfuge to protect the interest of the alleged offender. I have not seen these types of

provisions before. I could not find

a

similar provision in the MSDE model policy.

The school system should add a section about the Position of Authority law, directing

employees and others to report a violation to authorities, even though it

is

not technically child

abuse.£1 Certainly, this behavior would give anyone reason to believe that the educator, for

example, is also abusing children on school grounds. This has already happened.

Lastly, the school system lawyer should look at a September 19, 1997 Attorney General's

opinion about who should notify parents and when.

22

The Attorney General states: If the

situation involves an investigation of alleged child abuse by a teacher, the parents should be

told of the situation within 24 hours. The responsibility for notification, however lies with the

local department of social services or the police department, not the school system. Section

111(0)(3) of the protocols contradicts this opinion. Also, MCPS seems to want to contend that


20/48

a

notification of

a

report should be treated differently from

a

notification of investigation. I

think this is an artificial distinction designed to notify the alleged offender and the union as

soon as possible, thereby compromising the investigation by authorities. Because this section

of the protocols conflicts with this opinion, this section needs to be rewritten.22

Finally,

I

would respectfully request that my recommendations be given careful, considered

attention. I would hope that they are adopted to protect the health and safety of children

under the care of MCPS. MCPS has a profound obligation to change the culture of secrecy

which has been allowed to thrive for decades. In institutional abuse the dynamic involves a

tacit collusion between abusers and the administration to keep things under wraps. But there

is no safety for children in secrecy. (See Horace Mann School report, referenced above).

Respectfully,

Ellen Mugmon,

Specific recommendations for amendments are incorporated in the body of this report and are

numbered and underlined.


21/48

. .

FIA LPH ~

TVI ~a

&tl>UTt ATTOllHE1S GE.,tll,

OFFICE OF THE ATTORNEY GENERAL

200 SAINT PAUL PLACE

B A L TI MOR E.

M A R Y L A N C 21202·2021

(301)

57&-e300

0.0~

ettO

·~193&

Ttlee0Pl8' Nc.1301/ $7&,,6a0a

333•0019

WRIT£Jil 'S DIRECT

DIAi. NO.

. ieollOne 10 , Deaf

e111e.

/Vea 57.c:172 D . e .

Metro~,

Dec ember 1 7 ,

1991

The Honor abl e Thomas

M.

Yeager

4 1 3 Mai n

S t r e e t

Laurel,

Maryland

20707

Dear

S ena t o r Y ea ge r :

You

have

r e q u . e s t e a our

opi ni on

on

s ev er al

i s s ues c o nc e r n i n g

i nves t i gat i ons by

s c ho ol s y s t em

p er s o nn el

of

al l egat i ons t hat

a

s c ho ol s y s t e m e mp l o ye e c o mm t t e 4 c hi l d abus e. Spec i f i c al l y, you

have

a s k e4 :

,lo

·1.

I s

a s c ho ol s y s t em

aut hor i z ed t o

c onduc t , f o r p e r s . o n n e l

pur p os e s , an

i nves t i gat i on o f

al l egat i ons

of abuse of a s t u d e n t by

a

s c ho ol

s ys t em

empl oyee i ndependen t

of

t h e

c hi l d

abuse

i nves t i gat i on

conduc t ed

by

a

l ocal

depar t ment

of

s oc i a l

s er v i c es

( " l oc al DSS" ) or t he pol i c e? I tbe llchool s y s t e m has t h a t

aut hor i t y, what

p r o c e d u r e s

mus t

t h e

s c ho ol s y s t e m f ol l ow?

2. I s

di r e c t

investigative

i nf omat ' i on

a

p r e r e q u i s i t e ·

t o ~

administrative ac t i on agai ns t

a

s c hoo l

empl oyee accus ed o f

abus i ng

a s t u d e n t ?

3. Do a s c ho ol s y s t em

and i t s

empl oyees

enj o y i mmuni t y f o r

a c t s or om s s i ons d ur i ng t h e s c ho ol s ys t em s i nv es t i gat i on?

OP D ( X OJ r QP DI ~~Gl Ci i Bl t Q,

c i t e aa: 76

gpi ni o pa

of t l l e At t o r n ey General _ ( 1 9 9 1 )

[ Opi a i oa J l o .

11 - os& ( Deceaber

~7 , 1 , t 1 ) J

~7)) n,;; t nc


22/48

The Honor abl e Thomas M. Yeager

Dec ember

1 7 , 1991

Page 2

4

• :rf the school system's investigation compromiseser

i nt er f er es

wi t h

t he one conducted by

t he

l oc al DS S, or the pol i ce,

or adv er s el y af f ec t s a c r i m nal case ~r i o r t o di s pos i t i on, i s t he

school

s ys t e m

s u b j e c t .

t o

any

c r J . 1 1 1 . i n a l or

c i v i l

p ena l t y

o : r

l i a b i l i t y ?

s . Does Ma r y l a nd l a w p r o v i d e any p r o c e d u r e s t o f ol l ow when

conflicts ot i nt er e st ar i s e i n i nves t i gat i ons o f c hi l d a bu s e? ·

I n

r e s po nd i n g to

y o u r i nqui r y ,

w e face a s i gni f i c ant p r o Dl em

o f s t a t u t o r y c ons t r uc t i o n~ I t wou l d

. b e

e asy · e nou gh t o s a y , us i ng

the exact phrasing of your.question, that a s c ho ol system has no

aut hor i t y to conduct its own"child a~use investigation." But that

r e s p on s e wo u l d no t r ea l l y d ea l wi t h t he i s sue, because a s c ho ol

system can cont end

wi t h

mer i t t h a t an i ivastigation-·

cond.uc-~ed

solely for the purpose af gathering evidence for a

per so r ~e l

hea r i ng is not a "child abuse investi9~tion.•

The issue is not a matter of

b•rminology

»u~ of st4Lutory

wcope.

~here

is

no

doubt that the General _A.ssem];)~y· want ed o nl y 1/

specific agencies,

_not._

incl-uding a school system-. -·to

. dn M .

i

nv,lll,,;t£.~a~1onn or(l~1· o 't1.~~e out · how to help the ·child

ancl

whether to prosecute the alleged.

abuser.··

And the legislative

histoey supports. the cone1usion that no c ol l at er a l investigation by ·

someoneelse

.~f

the same fac::ts may interfere with the primary

i nves t i gat i on.

What we a r e unabl e t o

c o n c l u d e ,

under

c u r r e n t l a w ,

is· that the

Ge ne r a l

Ass em» l y has flatly prohibited a school system

from c o nd uc t i n g an.investigation in order to f i gur e out what to do

wi t h an empl o~e who has been accused of child abuse

.

o u r

conclusion, in s h o r t , ia that a school system

may

conduct

its

own

personnel

..

J.nquiry,

.but

only

within

.

limits that

ensure

the

pr i macy of the c l l i l d abuse investigation.

I f

t h e General Ass embl y

c o nc l u de s t h a t a di f f er ent out come i s pr ef er a bl e, i t is t r e e t o

chan9e t he

s t at ut e ac cor d i ngl y.

Mor e s pec i f i cal l y, our opi ni on

i s

as f o l l o w s :

I n Par t I of this opinion, we conclude t h a t a s c hoo l system

may

c o n d u c t

i t s o wn i nt er nA1

r 9 r &Qnna l i nves t i ga l l on o

l i l eged

eh1Ul abuse by an employee

if it

complies

wi t h

the following

limitations:

Ci) 'l'he

S?hooi_s_ystem.

.

ma:1. take

. . . 1 " Q ..

iPY ~~.i_9~tory

a_;tj,on prior t o

t he

su):>m1ss:ion

. f

a r e p o r t about the inc1dent to

the local DSS or t h e appropriate law enf or ceme_nt agency.1 (ii)

1

The

t e r m

" l a w enforcement agency" is defined as follows:

(continued ••• )

szaz 0£L ios


23/48

• ,

The

Honor ab l e Thomas M.

Yeager

Dec ember 17,

1991

Page 3

Th~ s c ho ol s ys t em should.notify

t h e

local

oss

o r t h e ~o l i c e of i t s

intention to conduct an internal_il)y~stigation. (iii.) .1'he se:,hool

,system. sho.~ld:npt int~FVi~w

t h e · _ . v i c t i ~

C ? . f : . t~e .. ~l}.~9~d.J•:);,u_se,he

. . a - l l e c ; e d

a bus e r ,

- o r .-anY·»~t~tial

wi t n es s w1 t h ou t

the·

prior

c o ns e n t

of t h e

l oc al

DSS

or

t be; o l i ce. v ' ( i v ) ' ' h e s c ho ol s ys t em must keep

c onf i dent i a l

any i nf o r ma t i o n about t h e al l eged c hi l d

abuse

t h a t i t

l ear ns

d ur i ng t he c our s e o f i t s i nt e r nal i nv es t i ga t i on . ( v ) I n

o r d e r t o

a vo i d a ny po s s i bl e

r i s k o f a c o l l at e r al es t oppel ef f ec t o n

a criminal pt"o11:u:1r.n~inn, t hQ ai:bQQ:la 01•otcs

3 ho ul d n o t

seex

L u

&:djud.icate a final di s p os i ~i o n of a p er s o nn el

ac t i on

aga i ns t a n .

a l " ' l e g ed child. a bus e r ,

wher e

t h e c h ar g es a r e

based o n t h e

alleged

a bus e ,

wi t hout t he pr i o r

c o ns e n t o f t h e St at e' s

At t o r n ey . ~

I n P a r t I I ,

we c o nc l u de t h at

a

l oc al s u per i n t e nd ent C?f

s c ho ol s

does n o t need di r ec t - i nves t i gat i v e

i nf o r ma t i o n

t o t a k~ a _ p p r o p r i a t e

action ac;1alnst a

s c ho ol

employee s u s p e c t e d of child a]:,use. With

"court ·approval/".

· · s c h o o l

personnel ·who

e & - e · · . · ,

m e m b e r s of a

mul t i d i s c i p l i na r y

t ea m may

d i s c l os e

i nf o t " mat i o n

o bt a i n ed

by

t h@

l oc a l DSS o r

t he po l i c e

f o r us e i n a

di s c i pl i nar y bear i ng.

In Part I I I , we

c o nc l u de . t h a t

a school s y s t e m

d o e s n o t

e nj o y

complete. immunity from liability if it conducts an i n de pe nd en t

p er s o nn el

i nv es t i ga t i on

of an a l l egat i on that one o f

i t s

empl oyees

c o mm t t ed

child abus e. Bowever , a s c ho ol ~ystem . empl oyee

· under t a ki ng

such

an

i nv es t i ga t i on i n accordance

wi

b . a

s c ho ol

sys t em•s

po l i c y

wo u l d or d i na r i l y be i mmune f r o m p er s o na l l i a b i l i t y

for ~ ,t.nr,tio'I.\~ai.rt er om c ci on during the -111Y\ ~LJ.gation

•

I n Par t I V , we

c o nc l u de

t h a t nei t her a s t a t u t e n o r

t h e

c ommon

l a w

set s o u t t he speci f i c of f ense o f interfering wi t h an

i nv es t i ga t i on

of

c hi l d a bu s e. Al t h ou gh

t he

c ommon l a w of f ens es of

obs t r uc t i ng o r h i nder i ng

a

po l i c e of f i c er

i n

t h e

p er f o r ma n c e

of

1

••• continued)

( 1 ) " Law en f o r cemen t

agency"

means a

s t at e, c ount y , or muni c i pa l po l i c e d ep ar t ment ,

bureau, ~r agency. .

( 2 ) " Law

e nf o r c e z e nt

agency" i nc l udes ;

.

( i )

a St at e, c ou nt y , o r muni c i pa l

po l i c e department o r a ge nc y ;

( i i ) a s h e r i f f ' s o f f i c e ;

( i i i )

a

St a t e' s At t or neys ' s o f f i c e ; and

( i v ) t h e At t o r n ey Gener a l ' s of f i c e.

§ 5- 70l ( k } of

t h e

Fam l y Law

Ar t i c l e

( " F L " A r t i c l e ) .

For br e vi t y ' s

s ak e, and t o

r e f l ec t

c ommon

~r aet i oe,

t h i s o pi ni o n wi l l gener a l l y

r ef er o nl y t o " p o l i c e" i nv es t i gat i ons .

~7JJ

nc·J r

nc


24/48

The

Honor ab l e Thomas M. Yeage r

Dec ember 1 7 , 1991

Page 4

d ut y or obs t r u c t i on of j us t i c e c oul d c onc ei v abl y f o r m t he bas i s of

c ha r g es ,

t h e f a c t s

t h a t wo u l d be n ec e s s a r y f o r suc h ch a r g es t o be

br o ug ht a r e e x t r e me l y unl i k el y t o

o c c u r

i n a s c ho ol board•

s

i nt er nal per s onnel

investigation,

par t i c ul a r l y

if

t h e

school

b oa rd

c o nd uc t s t he

p er s o nn el

i nv es t i gat i on wi t hi n t h e c ons t r a i nt s

discussed i n t h i s opi ni on. Wi t h

r e g a r d

t o c i v i l

s anc t i ons ,

a l t ho ug h

a l ocal

s c hoo l s y s t em s

dec i s i on

t o

c o n du c t

i n de pe nd en t

i nv es t i gat i ons i s i nc ons i s t ent

wi t h

t he model

po l i c y

of t h e S t a t e

Depar t ment of Education, the Stat:e Board of Ed uc a t i o n has no

a ut ho r i t y t o p r e v en t i mp l e me nt a t i o n o f t he l oc al s chool s ys t e m s

dec i s i on, because t h e

model

State policy

i s

n o t

embodi ed

i n a b yl aw

or

r e gul at i on.

I n Pa.rt V , we conclude

t h a t i n c as e s

wher e t he suspec t ed

a b u s e r

i s an eniployee of t h e

agency

charged wi t h

r e s pons i bi l lty for

i nv es t i ga t i ng

r e p o r t s

of s u s p e c t e d c hi l d abus e,

tb,

_ _ i nv es t i gat i on

• u s t

be

conduc t ed by a no t h er r e s po ns i bl e

i nv es t i gat i v e· agenc y i n

o r d e r

t a

a vo i d

a

conflict

c t i nt e r es t

•

.. ... - . .

· · · · · - - ·

...

.

x

1nv e1t i ga t i o ~• o f

euspac t e4

Cbi l 4 &bus•

• · T h • a c b o o l 1 Y 1 t a m• 1 · P a r a o p . p e 1 c o p c e r p a

On June 27. 1991 ~b• leard of Eduucttion of Howard county

&«opted

a

n ew a po l i c y o n Ch i l d Abu s e, s e xua l ~use and Negl ec t . "

The

po l i c y

acknowl edges t ha t v a l i da t i on of suspected. c hi l d

abuse

or

negl ec t

i s t h e

r e s pons i bi l i t y o f t h e

Howar d Count y

Depar t ment

of

Soc i a l Ser v i c es a n d t h e Howar d count y Pol i c e Depar t ment .

Ac co r d i ngl y, t be

po l i c y

directs a

s c ho ol

empl oyee

or

v ol unt eer t o

makean.immediate oral

r e p o r t

of

s us pec t ed a bu s e t o one

c f t h es e

agencies

·and

· t o t he s c ho ol

pr i nc i pa l

or t be

s u pe r i nt e nd en t

of

Sc ho ol s .

However ,

i f

t he r e p o r t a l l eges t hat

a

s c ho ol empl oyee i s t he

a bu s er , t be po l i c y r e qui r es " [ t ) h e S up er i . nt end ent • s d e$ i g ne e, i n

cooperation with r es p ons i bl e law enforceJllent aut h or i t i es , [ t o J

p r o mp t l y i nv es t i gat e t he

c h a r g e s

aga i ns t

t h e

empl oyee

and p r e p a r e

a c onf i dent i a l

r e p o r t

t o

t h e superintendent."

Al t h ou gh t h e

i nt ent

i s t h a t t he

s c ho ol

s y s t eM' s ~nv es t i 9 at i o n be

done

c oo p~r at i v el y,

ne ver t he l es s t h e

i nves t i ga t i on

i s intended to be conduct ed by

school s y s t e m

empl oyees .

If, considering

t h e

r e sul t s

of

t h e

internal i.nves~igation, the

Sur>e::rintendent has "reasonable

causP

1 1"o c:onolude that Ll1e emp.1oyee

cngag~u n ac~s of

child abuse

or s e xu al a b u s e ,

t h e S up er i n t e n de nt

i s t o d et er m ne t he appropriate di s ci pl i ne, u p t o a nd i nc l ud i n g

d i s m s s a l .

Sus pens i on or di s m s sa l of a

c er t i f i c at ed

e mp l o y e · e mus t

t:..,.11 (\{ ) Tf',f'


25/48

The

Ho no r a bl e

Tho mas

M. Yeager

Dec ember

1 7 , 1991

Page

5

f o l l ow t he

p r o c e d u r e s

s e t

f o r t h

i n 56- 202 of t h e

E du c at i o n

Ar t i c l e

( •1tD" Article) •

Pr o f es s i ona l employees of a local school system unquestionably

· ma y

be suspended

or d i s m s s ed

i f

t h ey a r e

f o un d t o h av e

abused

a

s t udent . ED 56 - 202

a l l o ws a c o un t y

b oa rd

of e du c at i o n t o s u s p e nd

or di s m s s p r o f e ss i ona l personnel f o r ,

among

o t h e r t hi ngs ,

"(i):mmorality"

and "[ml isconduct

in

of f i c e

including knowingly

f a i l i n g t o r e p o r t suspected c hi l d

abuse

i n v i o l a t i on of

SS - 903

of

t he Fam l y

Law Ar t i c l e • • • •

"

ED S6•202( a) ( i )

and

( i i ) .

I n addition t o enumer a t i ng t h e c a us e s f o r wh i c h a b oa r d may

di s m s s an empl oyee, ED 56 - 202 a l s o e s t a bl i s h es

t h e

d u e p r o c e s s

r i ght s

t h a t

t h e boar d must

a c c o r d

t o

t e nu r e d e mp l o y ee s pr i o r t o

d i s m s sa l .

3 Be f o r e suspendin9

or

d i s m s s i ng

an i nd i v i dua l . t he

c o un t y b o a r d mus t " s e n d t he i nd i v i dua l a copy of t h e c h a r g e s

aga i ns t

hi m and

gi v e

hi m

an

oppor t uni t y wi t hi n

10 d a y s t o

r e q u e s t

a hear i ng. " ED S6- 202( a) ( 2) . I f

t he

i nd i v i dua l

s ubm t s

a t i mel y

r eq ues t

for a hearing, the

coun t y

))oard.must

ho l d

o ne,

at

wh i c h

the

i nd i v i dual

has an

oppor t uni t y t o be

hear d , i n

p e r s o n

or ) ) y c ouns el ,

and t o p r e s e n t wi t nes s e s . E I > S6- 202( a) ( 3) .

Ex cept f or as s i s t ant

s u per i nt end en t s and hi gher l ev el adm ni s t r a t or s i n Ba l t i mo r e Ci t y ,

t he i nd i v i dua l ~ay a pp ea l f r o m t h e dec i s i on of t h e c o u nt y b oa r d t o

t he

S t a t e

Boar d

of

Ed uc at i o n. ED S6- 202( a) ( 4) .

1 ' b e s e

p r o c e d u r e s

a r e consistent wi t h t he

clue p r ocess mandat e

of t h e

F ou r t e en t h

Amendment

o . t h e

u . s . constitution. § . § . , . . & . S . . t . ,

1 1 e y e l a n d

B d . of

E d u c . y .

L o u d e r mi l l ,

470 u . s . 5 32, 5 42 - 4 6 ( 1985) .

Wh i l e

ED

S G- 2 02 s e t s

f o r t h

t h e g ener a l s cheme under

wh i ch

t e a c h e r

di s m s sa l s

mus t

be c ons i d er ed , it i s

s i l ent

a bo ut t he t y pe

an4 qua nt um

of

e v i d en c e r eq ui r ed bef ~r e t he b o a r d may

d i s m s s

t h e

I

I

. . • . . • . . . ,·•

2

Pr o f es s i ona l p er s o nn el wi t hi n t h e s cope o f ED j 6 - 202 i nc l ude

t eac her s , P . r i n c i p a l s , s uper v i s or s , as s i s t a nt

s u pe r . n t e n de nt s

and

"other

, Pr o f es s i onal

assistants."

ED 56•202 ( a 1 . Dieteiplinaey

pracA~d. ngs

f o r non- pr of es s i onal

empl oy~es

a r e n o t a d d r e s s e d i n

statute tiut may

))e

p a r t of t he n~ot 1at ed a9reements between

empl oyee gr oups and l oca l s c ho ol s y s t e ms .

l Pr of es s i onal p ubl i c s c h o ol e mp l o ye es i n Ma r y l a n d ae~i r e

' ' t e n u r e 0 a f t er t wo y ea r s

of

empl oyment .

i s r , k e a

v , B o f } f o

Edue,tion, 237 F. S"®P· 222 (D, Md.), aff~'Ji 34 •

2 464 (

4

cir.

1~65 •

Therefore,

tfiey

may be di s m s s ea onl y f o r c a us e subject t:n

s t , t u t o r r duP 1:-rr;i~calili; r o v i : a i o n s . Tl1u¥e

P ' OV1s i o ns ,

h owe v er , do

n o t a f p l y

t o p r o b a t i o n a ? . " Y

s t a f f , t h es e who

h~vo

wo ~t . • ~ f o r t h e

s ~bgg or ~t •m

Yo~

l ws u t han ~Vo

yea r s .

ED

56 - 202( ~) .

4

Neither the statute nor the

·due

process

mandat e

requires

c o mp ar a bl e p r o c e du r e s

i f

t he bo ar d' s

p er s o nn el

ac t i on

f a l l s s hor t

of a

s ~s p e ns i o n

- f o r e xa mp l e ,

a

t r a n s f e r or

t he i mpo s i t i o n

of

leave witn pay.

6 Z . L . : ' . . 0£l 10£


26/48

•

I

I

.

The

Ho n or a bl e

Tho mas

M.

Y ea g er

Dec ember 17, 1991

Page 6

t eac her . " T hi s s ec t i on

does not specifically d es c r i be t he

p r o c ed ur a l

or s u ~s t a nt i v e e l e me nt s o f t be hear i ng,

o t h e r t h a n t o

r e qui r e

a

pr ompt

h ea r i n g

and

t o

g r a n t

t h e

i nd i v i dual a n o p po r ~u ni t y

tc be

h e a r d

before the board, in person or

by

c ouns el ,

and to bring

wi t nes s es . "

6 4 o p i n i o n s

o f

t h e

A t t o r n e y G e ne r a l

12s , 126 ( 1 979 ) .

N o r

does

ED S6- 202

pr o vi d e

g ui d a nc e

ab~ut

t h e

board's investigation

of charges for dismissal. Finally, neither the. ;statute nor its

legi.&lative bi s t o r y s pec i f i c a l l y . con'fti'ple.tes·: the d i f f i c u l t

s i t ua t i on

in which an el:llployee is.

ch-arged

·with child a bu se. Thus,

£D S6- 202 does not

ex pr e s s l y

v e s t l o c a l

s c h o o l .

· o f f i c i a l s

w i t h . t he

aut hor i t y

to conduct an independent investigation

of

suspected

c hi l d abuse by

a

s c ho ol employee.

s t a nd i n g

al one, the absence of express aut hor i t y in ED S6•202

to

c o nd uc t a n i nves t i gat i on

wo u l d

no t p r e c l u de a s gho ol · a ys t em f r o m

d oi n g

s o . T he s t a t ut e plain1y restricts s c ho ol officials'

authority ~n ,Hi:"'~ ••• ,..

'1f•'li'Y••

•• eirowD3tum .. es In lllll ll tftl 'I 11

sufficient

ev i denge

t h a t

t h e

employee

h a s

c o mm t t Ad

~~·

~~

~~-

- ~~~

e11u1 1u: J.dLl lL1

lft

,b•:.lU:.

(l}

and

in which the

uployee

has ):)eenafforded

an opportunity t o p r e s e n t evidence in hi s or h e r own d ef e ns e .

Resetar v. State

Baor5'

ot

• • ~w;·ation,

•84

Hd, 5::J7, :;r;3 ,. 399

A .

2 1 1

2 2 : )

( 1979) .This bur.de~ ~n the scho.ol ))card, to pres~t evidence

. s uf f i c i ent . t o

war r ant di s ci pl i n•, i mpl i es t he

) ) o a r d ' s

aut hor i t y

t o

'find out whet he r such e v i d en c e exists. Confronted with a somewhat

analogous question . - whet her bearin9s under EO ft;•202

may be

conducted by

an a pp oi n t e d

be ar i ng

ex am ner

in

the absence

of

expl i c i t s t a t ut o r y aut hor i z at i on

-

t h e A t t o r n e y Ge ne r a l d e t ~ r 1 1 i n e d

t h a t

t h e u s e

of he~ing o f f i c er s was n o t

p r e cl ud ed . 6 , S Op,~nigps

af

:the

Attorney G e m f r c 1 1

at .1.i&.

Hence ,

we

c o nc l u de

t h a t

t h e Howar d Count y Bo ar d o f

Ed uc a t i o n

has

aut hor i t y under

t h e

Ed uc a t i o n

Ar t i c l e

t o

d ev el o p t he

f a c t s

t h a t

i t

woul d need

t o

d ec i d e whet he r an empl oyee s h ou l d be di s ci pl i ned,

unl es s t hi s authority bas

been

c ur t a i l ed

by o t h e r

l a w -

s pec i f i c al l y,

t h e

pr o v i s i ons of t he F am l y L a w Article dealing with

child abuse.

I nd ee~, . a s

a practical matter, no sc::bool system can

a vo i d t h e i mmedi at e

i s s u e. whe t h er t h e

t =p l oyee s h o ul d b e

r emov ed

f r o m·

c o n t a c t

wi t h children pending

f u r t h e r

i nv es t i ga t i on.

B .

C h i l d 4 1 u s e S u b t i t l e

1 .

c u r r e ; t

s t a t u t e

The Ge ne r a l Ass embl y has e na c t e d a compr ehens i ve c hi l d abuse

pr ev ent i o n,

det ec t i on,

and

t r e at me nt

pr o gr am Thi s l egi s l a t i ve

plan, embodied in .subtitle 7

of~:~1:~-S-"o"f'~

Family L a - w Article

C

"FL" Article).,

p ~o v i d e s

f o r 'C,~~~l R~oee~~s t o

i dent i f y ~nd

prate~··

abused

c h 1 l d . r e n

and c:r1:

a l procedures to p un i s h chl.ld

abusers. The process i nv ol v es

t h r e e

cH:stiricl: ' · s t e p s : t h e

r e por t i ng

of s;uspected abus e : an i nv es t i ga t i on of t h e s e reports; a nd , if

f.r.); n.;) tnc


27/48

The

Ho no r

comments on mcps proposal - ellen mugmon

Documents