Season 2 Episode 1: Hanky Panky in the Classroom, Part One

Welcome back to the second season of Class Act: Updates in Education Law. Joined by Attorney Sara Markouc, Lisa and Miriam start off the new year by diving into employee discipline. What are the basics that an investigator must keep in mind when a school staff member is accused of violating district policy and/or the law? What are the most critical steps that administrators sometimes miss? Join our conversation and learn more about conducting defensible investigations that are upheld on review.

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Miriam Pearlmutter: Welcome to season 2 of our award-winning podcast, Class Act: Updates in Education Law. I’m Miriam.

Lisa Woloszynek: And I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield. Every so often, we get together, we talk about school law, which is what we practice, and we talk about most recent legal developments relevant to school boards, administrators, teachers, really anybody who works in the school districts.

Lisa: In prior episodes, we’ve talked about disciplining students pretty much in length and the federal and state laws that come into play with the children who violate your district’s code of conduct. Today, we’re going to take a look at teachers and other educators who violate the rules, and specifically, we will start by discussing employee discipline and investigations.

Miriam: To talk about this hanky-panky in the classroom is Sara Markouc. Sara is an attorney at Walter Haverfield. She frequently advises school boards on employee and school discipline issues. Welcome, Sara.

Sara: Thank you so much for having me.

Lisa: Thanks for joining us. Sara, as we mentioned, in our last season, we talked a lot about student discipline, which I know is also an important part of your work with districts. This seems like maybe a dumb question, but there are many differences between disciplining students and educators, or is the process basically the same?

Sara: There are definitely similarities between student discipline and teacher discipline. In both situations, the district wants to make sure it’s complying with its relevant board of education policies throughout the course of the investigation, which might include parameters in terms of issuing written reports, meeting timelines and deadlines. You definitely want to be aware and cognizant of those policies.

Miriam: That’s what we always say. Lisa and I, we always talk about “look at your policy,” “know what’s in your policy,” so that’s really important.

Lisa: Or revisit your policy.

Miriam: Revisit your policy before–

Sara: Or find it for the first time. Google it before you start investigating a particular situation. With teachers, the district also wants to make sure that you’re looking at and complying with the relevant provisions of discipline when it comes to the collective bargaining agreement. For students, you want to be looking at the student code of conduct and following the parameter set out there.

Lisa: Really, for both, there’s another document to be looking at?

Sara: Definitely.

Miriam: Sara, is there any difference in disciplinary procedures depending on if the individual is a teaching staff member or a non-teaching staff member? Is there a difference there?

Sara: Usually, every school district has different collective bargaining agreements for certified and non-certified staff members. Usually, the disciplinary provisions are going to be different for certified staff members versus classified staff members. You want to make sure you’re paying attention and complying with the provisions in that specific collective bargaining agreement.

Miriam: That’s interesting. I’m sure we’ll get into it more, but I would be interested in hearing about what those differences are. I guess there’s basic steps that all investigations follow.

Lisa: At least, with students, we talk a lot about in the investigation how important it is and figuring out if the alleged violation even took place, or the extent of it. I am sure, for teachers or your other educator that you’re investigating, that’s going to be super important as well. Any other reasons you can bring to light for us why a thorough investigation is so important for staff discipline?

Sara: Yes. There are a number of additional reasons why completing a thorough and timely investigation is important with respect to staff members. I say timely because, again, not only will your board policies often specify deadlines or timelines that you have to meet in terms of completing an investigation or issuing a report with respect to an investigation, but you also don’t want, in a later proceeding, whether it’s an agency proceeding or litigation, to be asked a tough question by parents’ counsel or opposing counsel about why you let something sit on your desk for an extended period of time as opposed to acting in a timely manner when a report is received.

Lisa: How detrimental can that be if you totally blow a timeline in one of these?

Sara: It can sink the ship before it leaves the harbor.

Lisa: All right, there you go.

Miriam: I guess that makes sense because, I guess, what the argument would be is that if this was so terrible, you would have taken care of it immediately. Since you let it sit there for so long, it must have not been that bad.

Sara: Exactly. If your board, especially in your board policy, has gone to the effort of putting timelines and deadlines on investigations, and you can’t be bothered either to pay attention to those or, more importantly, comply with them, in lots of cases, that’s going to make you dead in the water from the beginning. What’s frustrating is we’ve seen cases where the actual substance of the investigation is very well done and the report is good. The witnesses have been spoken to, the end result is a good one, but if you haven’t met that deadline, you haven’t met that timeline, it can essentially all be for naught.

Lisa: Especially in a collective bargaining agreement, it’s going to open you up to a grievance just even maybe on that one specific fact, too.

Sara: Potentially.

Miriam: That’s frustrating. Deadlines are important.

Sara: Deadlines are important.

Lisa: Let’s get back to some of these major issues that we need to keep in mind when we’re doing these investigations.

Sara: There are a number of additional reasons why a thorough investigation is really critical prior to issuing discipline. We can break it down into seven primary areas that you want to think about. I think, as you go through these, some of them are almost self-explanatory. You naturally think of these, but some are a little bit outside of the area that you would naturally think of, but are just as important. From a practical perspective, not necessarily the legal side, you don’t want to be the administrator that potentially ignored criminal conduct. You don’t want to be that guy for purposes of continuing your career in the district and, obviously, other potential legal implications.

Again, I think on a larger scale, not only concern for yourself, which you should be when you’re looking into these, but also recognizing that you are going to set a precedent if you allow complaints to sit and not act on them. You’re setting a precedent for other teachers, other staff members, other administrators in the district in terms of how you respond when concerns are brought to your attention.

Miriam: That’s interesting. I didn’t think of it as a precedent.

Sara: If other teachers see that someone’s come to you and you don’t act on a complaint, you don’t act to investigate, you don’t initiate anything, chances are, if other teachers see misconduct occurring or have a complaint that they’re going to raise, they’re not going to come to you because they’ve seen someone else do it and you haven’t responded, so the chances are other issues will not be reported appropriately.

Lisa: This might not be exactly what you were thinking about, but what comes to mind for me is how often you hear, “Well, educators can’t be disciplined. Educators can’t be fired.”

Miriam: Teachers can’t be fired, yes.

Lisa: Here’s exactly how you go about it if it’s appropriate.

Sara: Exactly. Tenure does not necessarily insulate you from an investigation, potential discipline, or potential termination. I think that’s definitely an urban legend of sorts that is actually not true.

Lisa: I think you mentioned reporting misconduct and, sometimes, that’s required. I’m guessing that is definitely another reason buried in here.

Sara: Absolutely. The second primary reason that we talk about conducting thorough investigations is that the Ohio Revised Code requires reporting of educator misconduct to ODE in certain circumstances. That’s obviously the Ohio Department of Education, but other states have comparable requirements in specific circumstances.

Miriam: You’re going to have to report whichever employee you’re supervising. You might have to report their conduct to the state board that licenses that person.

Sara: Correct. If you’d make that report, recognize that that is a separate investigation that is conducted, and that can result in the teacher’s license being suspended, it can result in them being disqualified from teaching going forward. There are a lot of potential implications, and that is wholly separate and apart from the discipline that would be issued internally in the district.

Lisa: When you say it’s separate, just a reminder for all our districts, just because you report does not negate your obligation to keep going with your investigation.

Sara: That’s a great point, yes. They’re really parallel investigations, and you might come to a different disciplinary conclusion than ODE does. That often happens, but, yes, it does not minimize or negate your responsibility to make sure– Again, you’re looking at your board policies, you’re conducting a thorough investigation, and you’re meeting your timelines.

Lisa: Sara, can you just clarify for us? Before reporting an employee to the state agency, whatever that might be in your state, do you need to inform anybody that you’re going to be making this report?

Sara: Well, at least, in Ohio, you do not, technically, as the employer, needs to inform the employee that you are making the report to ODE. I will tell you that most of the time when we’re making those reports, as a courtesy, we will either let Union Council or the union representative who’s involved on the employee’s behalf know that we are making that report, but it is not a requirement. Again, it’s probably maybe state-specific, but, in Ohio, that is not required.

Lisa: Anybody else that needs to be informed?

Miriam: The district administrators have to be informed.

Sara: Correct. Usually, it’s a working-in-tandem with the district administrators when you’re making that report, and one of the administrators is making that ultimate report. There’s a form for ODE that you fill out and send down with an explanation of the details. Then, again, ODE, the Office of Professional Conduct takes that report and conducts its own independent investigation.

Lisa: Certainly, you can consult with your counsel before you do that. I know we get questions all the time of whether or not certain conduct needs to be reported, should be reported.

Sara: Correct. There are specific parameters where it is mandatory that those are reported. There are other situations where it’s not necessarily mandatory, but we will counsel clients that “better be safe than sorry” in terms of that report because worst case scenario is, as you send the report down. An ODE ultimately determines that no misconduct occurred that results in disciplinary consequences. I would think it’s better to report and have that determination-

Miriam: Better safe than sorry.

Sara: -than not report and have somebody come back later and say, “What were you doing?”

Miriam: Aside from potentially ignoring criminal conduct and reporting educator misconduct to the state agency, what are some other reasons that a thorough investigation is really critical?

Sara: I think one of the other critical reasons, and it really segues from the Ohio Revised Code, board policy, which we’ve talked a little bit about already, which is usually derived directly from Ohio law, requires the investigation of certain conduct. For instance, board policies will include a harassment policy, will include a bullying policy. In those situations, when those type of reports are made, you are mandated to investigate those complaints. This also could be considered and has been considered, per ODE conduct, an unbecoming a teacher which can result, again, in some of the disciplinary consequences we talked about before.

Lisa: Certainly, failure to follow the board policy, especially for these specified areas to investigate, can also result in other civil liability for the district as well. We see those lawsuits frequently.

Sara: Exactly.

Miriam: Criminal laws, state law, and your board policy all really require these thorough investigations?

Sara: Yes, and you want to make sure you have a handle on each of those and know what’s required. Again, lots of times, we will get, and you guys can appreciate this, lots of times we will get calls from clients on the back end of these where the investigation has been done and either hasn’t been done thoroughly, haven’t talked to everybody who needed to, hasn’t been done in a timely manner, hasn’t considered all of the factors you need to. It’s a heck of a lot better if you have a question on this to talk to your lawyer on the front end and be proactive because we can help address the situations before it becomes really problematic when the investigation is concluded.

Miriam: I think this is something I say all the time and it never happens, though. Call us before the problem. Call us, really, before the problem starts.

Sara: That’s a good point. Or just to get a second opinion if you have a question about part of it. We say this all the time in every context. Don’t guess because if you guess and you guess wrong, that’s going to be a huge problem potentially down the line. It’s a lot better to have a 15-minute conversation with us at the beginning than have us tell you you’ve got loads of problems at the end of the day.

Miriam: Call your attorneys. That’s the moral of that story.

Lisa: Certainly, with these investigations, they can result in some significant discipline, whether it’s suspensions or even terminations. That ties in some due process rights too.

Sara: Absolutely. Typically, this will be laid out specifically, as we mentioned before in the collective bargaining agreement, but conducting a proper investigation is part of the due process requirement, and I think we’d talk a little bit more about that later, but part of the due process that’s required prior to issuing discipline and/or terminating an employee.

Lisa: Basically, if your investigation is not thorough and you go to try to invoke some of this discipline, it can come back on you?

Sara: Absolutely. Again, it’s another area where even if all your other i’s are dotted and t’s are crossed and you haven’t completed this appropriately, everything can be for naught, essentially.

Miriam: I think you touched on this before a little bit more, but, maybe, can you tell us a little more about the atmosphere piece, about how if you’re not jumping on top of these investigations, that will affect the atmosphere of your district, and that’s also why you want to investigate these as thoroughly as possible?

Sara: Yes. I think that’s really important when we talked a little bit before about the precedent you’re setting as the administrator responding to a complaint. Again, this isn’t so much the legal aspect, but this is just as critical, from a practical perspective, that investigating and addressing reported misconduct allows the administration and the board to ensure that there’s an open, healthy, safe environment for students and staff members.

I think that having your staff members, having the confidence in you as an administrator, that they can trust you, they can come to you and know that you will act in their best interest, in the district’s best interest, and part of that is appropriately and thoroughly conducting investigations in these situations is really important.

Miriam: That just sounds like best practice, like common sense.

Sara: Absolutely.

Lisa: Many of these investigations ultimately lead to either maybe a grievance or a lawsuit or, I’m imagining, most of the time, an employee doesn’t just get suspended or terminated and do anything about it. Just as like, “Yes, I did it. Okay, I’ll let it be.”

Miriam: It can be a really contentious situation.

Sara: I think you need to have in the back of your mind it shouldn’t scare you, but when you’re doing these investigations, you need to have in the back of your mind there’s a high likelihood in many situations that your findings, your report, your determinations may ultimately be challenged. Whether that’s a grievance, whether that’s another type of litigation, you need to be thinking about that to make sure, again, you’re dotting your i’s, you’re crossing your t’s, you’re being thorough so that you have a clear rationale. If you’re being asked, six months down the road or you’re down the road by opposing counsel, why you did what you did, when you did it, how you did it, why you did it, you’ve got those details and you can answer those tough questions.

Lisa: Absolutely. We talk about how important documentation is all the time for different student issues, and this is no different. This is going to be your support should it go down that road.

Sara: Certainly, when we get involved, usually, when the lawyers get involved, it’s down the line. This is one of the first things we’re gonna look at. A big part of this is your paper trail. Who did you talk to? Who did you document that you talked to? Show me how you can substantiate your findings because if you can’t show me that, you can’t show me the investigation that was completed, that makes sense in terms of your conclusions and the disciplinary consequence that’s going to have potential ramifications on what we do with follow-up litigation.

Whether we’re going to be in a position to effectively challenge an employee or if we’re going to say, “Hey, this isn’t solid enough for us to move forward, and we’re going to have to look at some type of settlement.” It’s really the base of everything going forward.

Miriam: Aside from all of this, I think that just well-done investigations, just resolve issues at the earliest time at the lowest level possible.

Sara: Absolutely. Whether that’s the employee looking at it or they’re advocate down the line looking at things, depending on how well their advocate is going, clearly, their advocate is going to look at things. Certainly, we’ve had situations where well documented, well thought out, thorough investigations have eliminated the possibility of litigation or issues, challenges going forward.

Miriam: I know that every investigation has clear basic steps, and we’ll probably talk about this more in the next episode, but can you just give us a little bit of an overview right now, Sara?

Sara: Sure. There are really six steps, I think, that most investigations follow. I want to make a quick note that before the investigation begins, I feel like I’m beating this into everyone’s head, it’s not bad to hear it one more time, make sure, again, you’re reviewing all of your relevant policies before you begin the investigation that relate to the complaint.

It’s really, really critical because, lots of times, that will be the base for everything else you’re going to do. I’ve now said it enough.

Miriam: No, good. That’s okay. It’s not enough. Trust me, it’s not enough.

Sara: In terms of the six steps, I think the first thing the district needs to do is identify the nature of the complaint. “What are you dealing with here?” so that you can really have a good handle on who you need to talk to, how you need to move forward, what kind of evidence you’re gathering, and just get a starting point for what you’re going to do in terms of proceeding.

The second is looking at who made the complaint, determine that if possible. Sometimes, that’s not always easy to do, but if you can determine who the complainant is, the alleged victim, you want to do that in terms of making that specific identification before you get into the investigation. Next, you’re going to determine who’s going to conduct the investigation. Sometimes that’s internal, sometimes somebody from the outside. Fourth, you want to gather your physical evidence. You want to identify witnesses and conduct interviews, and then ultimately evaluate and report your findings.

Miriam: We’re going to go through these in detail next time, but I know, when we were talking about this before, Lisa, you had a question about employees who may want confidentiality?

Lisa: Yes. Before we let you go, Sara, definitely, can you give us your two cents about what districts should do when there’s enough concern raised but the employee says they don’t want you to do anything about it.

Sara: Yes. I think that’s a good point and it happens a lot. Someone will come in, shut the door and say, “Hey, I want to report something, but I don’t want to be associated with it. Don’t tell anybody I said anything, but this is what’s going on.”

Miriam: I can imagine that happens all the time?

Sara: Yes. Unfortunately, you cannot guarantee confidentiality in these investigations. I really think it’s important that people, first off, know that, so they’re not telling people things will remain confidential when they will not. Understand that, in the course of an investigation, if someone asked to be anonymous, we will honor that request to the greatest extent possible, but there may come a time where their identity needs to be shared. You cannot guarantee confidentiality.

Miriam: How do you make that decision, though?

Sara: It’s really a case by case determination. Not trying to dodge the question, but every investigate–

Miriam: It’s a lawyerly answer.

Sara: It’s a lawyer’s answer. Every investigation is so different, and everything is so specific case by case that that decision, if you have to make it, is going to be made at different points, at different times. I think, ultimately, what people need to know at the front end of these is that if someone says, “I want to be confidential. Don’t use my name,” you cannot guarantee that. The other thing, sometimes, people will say- they come in and say, “Hey, I want to share this with you, but I don’t want you to do anything about it. Here’s what’s going on between teacher A and teacher B. I wanted to let you know, but I don’t want you to do anything.”

Miriam: I think that places you as the administrator in such a difficult position, though.

Sara: It’s a difficult position. Certainly, we talked before about some of the board policies you have on harassment, bullying, and other types of misconduct, when you receive that report, you are mandated to investigate. I think you need to be sure to tell the anonymous reporter that once they’ve shared that information with you, you appreciate the report, but you can’t just sit on that.

Lisa: You can’t unhear it.

Sara: Exactly.

Miriam: Should you say that before the person says anything to you? Let’s say, I come in and I say, “I have something to tell you. I just want you to keep it on the down low.” Is that where you would come in and say to me, “I just want you to know, Miriam, no, I can’t do that.”?

Sara: It depends. Sometimes, people will just come in and start talking, and you need to share that immediately after. I think you want to walk a fine line of not deterring the person from sharing but also not giving them a false sense of security that, “Come on in. Shut the door. Tell me whatever you need to, and it’s just between us.” Again, I think it’s really case-specific, but you want to make sure, certainly, in the course of that first conversation, that, number one, you cannot guarantee confidentiality, and number two, if policy or the law requires that you investigate, you are obligated to investigate.

Lisa: Thanks for joining us today, Sara, and walking us through–

Miriam: This is really interesting. I really liked it. Thank you.

Sara: Thanks.

Lisa: We outlined for our listeners the thorough investigation and also giving you the basic steps that you need to take in that investigation. We will have Sara back again, and we’re going to dive into what those steps are and all the details that they entail.

Miriam: Thank you so much for coming, Sara. Thank you. Thanks everybody for listening. Next time, tune in again. We’ll be talking about “Hanky-panky in the Workplace” part 2. Rate us on iTunes or Stitcher or wherever you get your podcast from. The higher ratings we get, the easier it is for other people to see our content. Always drop us a line, send us an email, let us know what you think and if you have any other topics you wanted to hear about.

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.