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CHILD ABUSE AND NEGLECT
COMMENTS ON PROPOSED POLICIES
AND PROTOCOLS
submitted
to
Montgomery County Public School
System
by
Ellen Mugmon
June
8,
2015
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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.
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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.
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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.
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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:
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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
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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
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•
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)
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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
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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
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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.
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. .
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
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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
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• ,
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
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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'
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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£
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•
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
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The
Ho no r