Understanding School Personnel Issues: Case Studies and Legal Considerations

Your Employee Did What? Case Studies in School Personnel IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

Introduction J. Christian Miller Attorney and Partner Miller, Tracy, Braun, Funk & Miller, Ltd. IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

1. Can I get a witness?! Employee shows up for an interview during which he allegedly saw a student steal a very expensive and desirable iphone. IASPA As the employee enters, he asks for his union representation. Illinois Association of School Personnel Administrators The employee also turns on an audio-recorder, unbeknownst to the interviewer. IASPA.org @_IASPA_

1. Can I get a witness?! Laws: Illinois is a 2-party consent state. Eavesdropping (failure to get your consent) is potentially criminal. 720 ILCS 5/14 If the person is a true witness, they have no right to representation. If the person is a target, they have a right to have a representative present. NLRB v. J. Weingarten, Inc., 420 U.S. 251 IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

1. Can I get a witness?! Risk? You get into the investigation with a witness and discover they ve done something wrong. Don t forget their right to representation - the union helps protect process. The prosecutor won t prosecute Eavesdropping Always proceed like you re being recorded whether or not you are. Prepare heavily before every meeting. If you aren t prepared, stop the conversation immediately. IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

2. Under the Influence An aide reports to you that a bus driver is acting strangely. You re aware the employee has a prescription for a medication that sometimes makes him sleepy, but he is under instructions not to take the medication within 8 hours of work. IASPA Illinois Association of School Personnel Administrators Rumors are that the bus driver is a drunk. IASPA.org @_IASPA_

2. Under the Influence Laws: Search (4thAmendment) Consent or Reasonable suspicion/Probable Cause Scope at inception Calculated to identify contraband Not excessively intrusive Admission No 5thamendment right in employment you may command answer, & infer information from non-response IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

2. Under the Influence Laws: Americans with Disabilities Act Drunk is not a disability it s an impairment (not protected) IASPA But the medication may require reasonable accommodation accommodation requires compliance Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

2. Under the Influence Risk? Constitutional violation if you don t have cause to search Look for evidence. Is the employee slurring? Does he smell of alcohol? Does he admit to drinking recently? Is there other evidence? IASPA Illinois Association of School Personnel Administrators Generally, it doesn t matter why the employee is impaired only that we can prove he is. IASPA.org @_IASPA_

3. Leave and a False Flag Employee sends a note to the principal seeking sick leave. When questioned, he identifies he suffered an injury in a nightclub. While on leave, he files a claim with worker compensation, alleging he slipped and fell at work. IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

3. Leave and a False Flag Law: You may not seek a doctor s note before 3 days leave 105 ILCS 5/24-6 The school is entitled to sufficient information to understand the nature of leave IASPA Illinois Association of School Personnel Administrators An employee is entitled to use of leave, or reasonable accommodation that does not present undue burden Worker Comp is for injuries incurred at work IASPA.org @_IASPA_

3. Leave and a False Flag Risk? Never command an employee back to work who is not ready. But also make sure you have the information you need. IASPA Be very careful about over-inquiry you may get information that subjects you to further obligation. Illinois Association of School Personnel Administrators Be ready to engage a conversation about plans and needs. IASPA.org @_IASPA_

4. FOIA for an employees file Local paper discovers a teacher is on leave, and there are allegations that the employee abused a child. The paper files a Freedom of Information Act request for the employee s personnel file, and all documents regarding an investigation into [the employee] and any abuse of a child. IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

4. FOIA for an employees file Laws: FOIA provides that all documents are presumed public. 5 ILCS 140/7 But exceptions for proceedings where disclosure would: (ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request; (iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing; (vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request. (or disclose witnesses thereto) IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

4. FOIA for an employees file Laws: FOIA provides that all documents are presumed public. 5 ILCS 140/7 But exceptions for proceedings where disclosure would: Constitute (f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

4. FOIA for an employees file Laws: Personnel Records Review Act (1) An employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee, without written notice... (2) The written notice to the employee shall be by first-class mail to the employee's last known address and shall be mailed on or before the day the information is divulged. IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

4. FOIA for an employees file Risks? Failure to comply with PRRA means a person is entitled to damages plus costs. And disclosure of records which might tend to implicate someone before hearing risks biasing the outcome which risks serious damage. IASPA Illinois Association of School Personnel Administrators But failure to communicate will anger parents IASPA.org @_IASPA_

4. FOIA for an employees file Risks? Communicate positively to the community Be grateful for the help of your colleagues Be careful not to suggest guilt or anything more serious than exists IASPA Illinois Association of School Personnel Administrators Make sure the community feels safe Don t over-communicate IASPA.org @_IASPA_

5. The cantankerous fraudster Employee submits a timesheet that does not match video evidence of her coming and going When confronted, the employee asks to see any evidence of her guilt. IASPA When the District notes it is not District practice to share security video, the employee complains of due process, and asks what rule she violated. Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

5. The cantankerous fraudster Laws: Security video is not subject to public disclosure. But there is no student issue unless the record is a record for that student (the student is the subject of the video). If the students are window dressing, you can share. IASPA Illinois Association of School Personnel Administrators Due process requires confrontation of evidence. IASPA.org @_IASPA_

5. The cantankerous fraudster Laws: Falsification of government documents is fraud Where taxpayer funds are at issue (like in a school), the matter is potentially criminal IASPA Union has a right to be present where disciplinary action may occur Illinois Association of School Personnel Administrators Not everything that is prohibited is set forth in your rules (murder?) IASPA.org @_IASPA_

5. The cantankerous fraudster Risks? Don t be put on defense! Stay on offense. You re in charge. Admonish the employee about the value of truthfulness. Start open-ended, move to closed questions on the facts IASPA Start with why are we here? and what can you tell me about and move to did you do this? Illinois Association of School Personnel Administrators Be prepared, when confronting an employee, to share the evidence you have IASPA.org @_IASPA_

5. The cantankerous fraudster Risks? Don t be put on defense! Stay on offense. You re in charge. Admonish the employee about the value of truthfulness. Start open-ended, move to closed questions on the facts IASPA Start with why are we here? and what can you tell me about and move to did you do this? Illinois Association of School Personnel Administrators Be prepared, when confronting an employee, to share the evidence you have. IASPA.org @_IASPA_

Questions and Answers I thank you for your time! IASPA Illinois Association of School Personnel Administrators IASPA.org @_IASPA_

Presenter: PANELIST S INFO: J. Christian miller IASPA Miller, Tracy, Braun, Funk & Miller, Ltd. (217) 762-9416; cmiller@millertracy.com Illinois Association of School Personnel Administrators IASPA.org @_IASPA_