Employee Investigations and Due Process

Report
TWO TROUBLESOME
EMPLOYMENT CONCERNS
Handling Employee Claims of Harassment and
Responding to Employee Criminal Convictions
Metro Bureau
Tuesday, October 1, 2013
Presenters:
Robert T. Schindler / Kevin T. Sutton
Lusk & Albertson PLC
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DISTRIBUTION OF TOPICS
Handling Employee
Claims of Harassment
Responding to
Criminal Convictions
Kevin T. Sutton
Robert T. Schindler
HANDLING EMPLOYEE CLAIMS
OF HARASSMENT
TOPICS TO BE COVERED …
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What is harassment?
What are the standards for conduct?
When does liability attach?
When does duty to investigate arise?
What is the purpose of the investigation?
What issues require investigation?
Who should investigate?
How do you prepare for the investigation?
What are the issues to consider?
What are the mechanics of the investigation?
How do you conduct an effective interview?
How do you best document investigation?
How best to render justice?
Any further action to be taken?
WHAT IS HARASSMENT?

Federal and State Laws
Title VII/ADEA
 ELCRA

District Policies
 Protected categories of individuals
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Race
Color
Sex (quid pro quo; hostile work environment)
Religion
National Origin
Age
Evolving areas of harassment
Gender identity
 Transgendered
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EMPLOYER LIABILITY FOR SUPERVISOR
HARASSMENT

Michigan

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Employer liable if knew of or should have known of
harassment and took no prompt remedial action
Federal
Look to employer’s knowledge, if action taken, and if
harassment resulted in “tangible employment action”
 Vance v. Ball State University, 133 S. Ct. 2434 (2013)

AVOIDING LIABILITY

Explicit Policy Against Harassment
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Definition of Harassment
Reporting Procedure
Confidentiality Assurance
Disseminate
Acknowledgment of Receipt
Post Policy
Inform and Train
Investigate Claims
 Develop Positive “Track Record”
 Be Consistent

THE COMPLAINT: HYPOTHETICAL
Kendall, an elementary school principal, tells the District’s
Business Director that she thinks Garrett, a high school
principal, has violated the school district’s policy
prohibiting sexual harassment.
When the Business Director asks for details,
Kendall says she does not want to get Garrett in trouble and
that she did not want to make a “formal complaint.”
The Business Director calls the Director of HR.
What should the Director of HR do?
1. Ignore Kendall’s statement because she did not make a
formal complaint.
2. Talk to Kendall and see if she wants to make a formal
complaint.
3. Investigate.
WHEN TO INVESTIGATE?
A formal (or informal) complaint
 Co-worker reports of questionable
conduct (even if not wanting to
become involved or reported
anonymously)
 Observed or reported employee or
student misconduct including
violation of workplace rules or
student code of conduct
 Parent or student complaints (use
caution)
 Anonymous complaints

MOST COMMON CIRCUMSTANCES BESIDES
DISCRIMINATION AND HARASSMENT
Bullying
 Corporal punishment by staff
against students prohibited
 Theft or embezzlement
 Improper use of e-mail, Facebook,
child pornography, etc.
 Workplace misconduct (jokes,
comments, etc.)

WHY INVESTIGATE?
Gather facts and evidence
 Informed decision-making
 Adhere to due process requirements
for student(s) and staff; adhere to
district policy
 Create a record of activity
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Occurrence / Response
 Establish expectations for behavior
 Show misconduct will be taken
seriously
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Be your attorney’s best friend!
Document for future proceedings
 Avoid liability
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PREPARING TO INVESTIGATE
Decide if internal or external (consult
Legal)
 Investigate promptly
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“Act quickly, but not hastily”
Review:
all applicable policies
 allegations
 relevant personnel files
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Understand what evidence is relevant
and necessary (ask Legal)
 Ensure retention of evidence –
documents, electronic records,
physical evidence, video surveillance
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ISSUES TO CONSIDER BEFORE YOU START
Union representation
 Attorney representation
 Confidentiality: interference
with protected rights as to
employees
 Electronic communications
 Issues associated with
searches
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CONDUCTING INTERVIEWS
Prepare open-ended, unbiased questions
 Take steps to assure that the witness
understands the question you are asking and
answers the question you are asking
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Press for answers
Order of interviews:
Interview complainant and/or victim
 Interview the accused
 Interview other witnesses identified by the
complainant, accused or other witnesses
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Re-interview witnesses if necessary
 Take copious/verbatim notes
 Consider signed statements

THE RELUCTANT WITNESS
You have identified Kennedy as a possible witness.
She has been disciplined several times by the
District and is on an IDP. When you begin to
interview Kennedy, she says she will refuse to
answer any questions and will not cooperate with
the investigation.
What do you do?
1. Order her to give you the information and
discipline her if she does not cooperate
2. Decide you can’t force her to cooperate
THE RELUCTANT WITNESS

If witness is uncooperative
Concern about how it will look to peers
 Uncomfortable and afraid of
repercussions
 Desire to be liked
Try to determine reason for lack of
cooperation
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Provide reassurance about how to
handle actual or perceived retaliation
 Give names and numbers of who to
contact if retaliation is suspected
 Tell them what you know or think you
know
 Order the employee to cooperate
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UNCOOPERATIVE ACCUSED
Encourage participation by explaining the
investigation process, answering any questions
the accused has
 An employee can be compelled to cooperate in an
investigation and it is appropriate to discipline
employees who refuse to cooperate

“I WANT MY ATTORNEY”
You bring Jude in for an interview and he requests
his attorney. He refuses to discuss anything until
his right to counsel is honored.
What to do?
1. Let him call his attorney and wait until the
attorney arrives
2. Tell Jude that he is not entitled to an attorney
and that if he will not answer questions then the
investigation will continue without his input
“I WANT MY ATTORNEY” - RESPONSE
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Two schools of thought
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OK, call your guy
No way, Jude
“Would your answers be any different with your
attorney here?”
Attorney can’t speak
Asking for attorney different than asking for
union representative
 If the employee is represented by a union, the
employee has Weingarten rights which allow the
employee to have his/her “union” representative
present while the employee is being questioned
on a matter that may result in discipline

AN EMPLOYEE’S
WEINGARTEN RIGHTS
“AN EMPLOYEE IS ENTITLED TO HAVE A
REPRESENTATIVE PRESENT AT AN
INVESTIGATORY INTERVIEW BY AN
EMPLOYER IF THE EMPLOYEE
REASONABLY BELIEVES THAT
DISCIPLINARY ACTION MIGHT RESULT.”
WEINGARTEN RIGHTS
Do Employees Have to Ask
For a Weingarten Rep?
 Informing Employee of
Predetermined Discipline
 Does the Weingarten Rep
Have To Be a Union
Steward?
 What If the Employee’s
Chosen Rep is
Unavailable?

The Role of the
Weingarten Rep
 An Employer Has Three
Choices When An
Employee Invokes His
Weingarten Rights
 CBA Terms and
Weingarten Rights
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CAUTION WHILE INTERVIEWING

Overbearing investigations and confining or
restraining employees or students against their
will places the employer at risk for lawsuits
False imprisonment
 Intentional infliction of emotional distress
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Factors to determine when an interview exceeds
permissible limits:
The time and conditions under which the questioning
took place
 The content and form of the questions put to the
witness
 The physical and mental condition of the witness
during the period during which s/he was questioned
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Consider breaks, even those to consult with
attorney; be reasonable
CONFIDENTIALITY
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When interviewing, always ask the
witnesses to treat the information
discussed during the interview as
confidential
Explain why confidentiality is
necessary
Explain that the information
provided during the interview will
be shared on a need-to-know basis
and not necessarily held in strict
confidence
Disclosure by management is
sometimes needed for the
investigation
State any policy prohibiting
retaliation (if applicable)
Examples
WORKPLACE SEARCHES
You believe that Gray, a chemistry teacher, has
documents in his desk which are relevant to the
allegations that have been made against him by a
fellow teacher. You also believe there are e-mails on
Gray’s email account which may also be relevant to
the allegations. Gray keeps his desk locked and has
changed the password on his computer.
What should you do?
1. You cannot search because Gray, by locking his desk
and changing his password, has created an
expectation of privacy
2. You can go to court and obtain an order which lets
you search his desk and email
3. The desk and emails are owned by the District and
you can search them without Gray’s permission
WORKPLACE SEARCHES (CONT)
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Analyze and evaluate the legitimate reason for the
intrusion
Review and analyze the nature, scope and intent of
the intrusion
Take the less intrusive way to effectuate the search
(intruding conduct should not exceed the legitimate
scope of intrusion)
Provide clear and specific notice to employees of
District’s policies regarding screening, monitoring,
and investigating employee conduct
District notice in writing that District will conduct
certain types of inspections significantly diminishes
the expectation of privacy
Obtain employee or student consent in sign offs for
policies
Obtain consent at the time of the search
SEARCHING COMPUTERS/ELECTRONICS
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Investigating computer activity is often essential;
factors in determining an employee’s expectation
of privacy on his/her work computer include:
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Whether the employer/district maintains a policy
banning objectionable use
Whether the employer/district actually monitors the
use of the employee’s computer activities
Whether third parties (such as IT Departments) have
the right of access to the student or employee’s
computer
Whether the employer/district placed the employee or
student on notice, or the employee/student was aware
of the monitoring policies
Employers should obtain consent, either through
acknowledgment or notification
DOCUMENTATION
Use exact words
 Contact
 Follow-up as much as needed
 Create a separate file for the investigation
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The file should include all documents and other
information gathered during the investigation
DETERMINATION
Review all of the evidence,
including witness interviews
 If necessary, follow up with
additional interviews or other
activity needed to conduct an
adequate investigation
 Consider and weigh all the
evidence
 If evidence conflicts, assess
credibility
 Report should document
assessment of credibility and
what supports your finding
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DECISION

You find the complaint is true/supported
Take appropriate disciplinary action against the
accused
 Tell the complainant to report any retaliation
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You find that the complaint is
false/unsupported
If appropriate, take disciplinary actions against the
complainant**
 Warn the accused of the no retaliation rule
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You can’t decide whether the complaint is
true/supported or not
Educate the accused and warn against retaliation
 Tell the complainant to report any retaliation
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THE INVESTIGATION REPORT
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Is a written report needed or will a verbal report
be sufficient?
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Will report (whether written or verbal) provide the
facts with conclusions or will recommendations be
included?
If a formal report is needed, the report should
include:
Background information
 An explanation of the situation prompting the investigation
 How the investigation was carried out
 Witnesses interviewed
 Documentary evidence reviewed
 Attach significant documents to report
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WRITING YOUR REPORT
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Think about your audience when
writing your report
Edit and proof your report from the
perspective of someone with no
knowledge of the event
Better yet, have someone with no
knowledge read and see if it is clear
(confidentiality)
Decide how you are going to refer to
your witnesses and then refer to them
in the exact same way throughout the
report
Will the report be Exhibit A in
litigation?
DISCIPLINE
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Did the District have a rule?
Did the District let the
employees / students know of
the rule?
Did the accused violate the
rule?
Was the investigation fair?
How has the District treated
other employees who violated
this rule in the past?
Did the discipline fit the
offense?
REMEDIES
Determine what, if any, corrective action or
remedial measures are necessary
 Always consider polices and practices
 If issuing corrective action, remember purpose of
such action:
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Correct future conduct
Communicate to employees what is acceptable
conduct
Minimize exposure to future liability for alleged
harassment/discrimination
CONSIDER ADDITIONAL ACTIONS
Report to the School Board
 Report to outside authorities
 If attorney conducted investigation and prepared
report, recommendation can be legal advice and
it can be rendered in closed session
 Witness statements and non-privileged
statements may be subject to FOIA
 Disciplinary hearings and appeals for employees
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EMPLOYEE RIGHTS IN DISCIPLINE CONTEXT
Weingarten Rights (previously discussed)
 Loudermill Rights
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Also …
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Rights under Teacher’s Tenure Act
Public Employee Relations Act (PERA)
LOUDERMILL RIGHTS
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“The employee is entitled to oral or written notice of
the charges against him (or her), an explanation of
the employer’s evidence, and an opportunity to
present his (or her) side of the story”
Employer has an obligation to inform the employee of
his/her Loudermill Rights
The employee has the right to speak or not to speak
at the Loudermill (or “pre-disciplinary”) hearing.
Also, the employee has a right to union
representation, and the union representative may
speak on behalf of the employee
If the employee chooses not to attend the Loudermill
(or “pre-disciplinary”) hearing, the employer may
proceed with discipline
MODIFICATIONS TO TTA AND PERA
Changes are numerous
 Transition from “Just & Reasonable Cause” to
“Arbitrary & Capricious”
 Can discipline up to 15 days without TTA
implications
 A discussion for another day …

KEY TAKE-AWAYS
Have a plan for investigation
 DOCUMENT!!!!! (even if no investigation)
 Provide opportunity for employee to respond to
allegations/situation
 Consult with HR
 Don’t leave situations unresolved

CASE STUDY – “THAT SHIP HAS SAILED”
2011-2012 SY
 Special education teacher, elementary
 Issues of concern raised by parent (Jan. 2012)
 Questionable conduct witnessed by other staff
(Oct. 2011; Nov. 2011) – man-handling SE child
 Response

Spoke to teacher
 Never documented issue; no letter in file
 No investigation; no interviews of witnesses

Previously-reluctant parent now on a mission
 Teacher suspended (March 2012)
 Investigation requested; “can we fire her?”

INVESTIGATION ENSUES
12 individuals interviewed
 No explanation why prior issues not documented
 Excuses Provided:

Felt issue was covered by chat with teacher
 Parent seemed less-than-concerned … initially

Wanted to come down on teacher now that parent
was upset
 Teacher countered by insisting this was parentdriven and unfair

INVESTIGATION RESULTS
222 page report
 Can we fire her? You decide …

CASE STUDY LESSONS
Initial incident should have been investigated
more thoroughly
 Interviews should have been done, statements
obtained, and (likely) discipline issued
 Documentation of that incident would have made
it easier to penalize teacher for additional bad
conduct
 Discipline for that issue would have made it
easier to severely discipline teacher for additional
bad conduct
 Level of parental rage is not the guide!
 Be thorough all the time!!
 “That ship has sailed …”

QUESTION TIME
ADDITIONAL QUESTIONS?
Kevin T. Sutton
40950 Woodward, Suite 350
Bloomfield Hills, MI 48304-5129
Direct: (248) 988-5695
Cell: (734) 377-7400
Email: [email protected]
RESPONDING TO CRIMINAL
CONVICTIONS
WHAT WILL BE COVERED?

Student Safety Initiative (SSI)
What does it require?
 What does it allow?

Interaction Between SSI and the TTA
 EEOC Enforcement Guidance
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How may criminal convictions be used in employment
decisions under federal law
A practical application of the law
STUDENT SAFETY INITIATIVE
MCL 380.1230 et seq.
 Group of acts that amended or added to the
Michigan Revised School Code
 Effective Jan. 1, 2006
 Sought to modernize public school background
check process

Went from paper to electronic fingerprints
 Includes check from State Police and the FBI
 Required all current employees to be re-checked

WHO MUST RECEIVE BACKGROUND
CHECK?
Any individual in any full-time or part-time
employment – Upon offer of initial employment
 Any individual being assigned to regularly and
continuously work under contract in any of its
schools – As soon as school is aware
 Volunteers?
 Substitutes – May rely on the check possessed by
another employing entity

REGULARLY AND CONTINUOUSLY
To work at school on a more than intermittent
or sporadic basis.
 Intermittent: stopping or ceasing for a time;
alternately ceasing and beginning again
 Sporadic: appearing or happening at irregular
intervals in time

WHAT IF CRIMINAL HISTORY?

If the report discloses that an individual has been
convicted of a listed offense, then the school
district … shall take steps to verify that
information using public records and, if the
information is verified, shall not employ the
individual in any capacity . . . and shall not
allow the individual to regularly and
continuously work under contract in any of
its
schools.
MCL
380.1230(9)
and
380.1230a(10).
LISTED OFFENSE

“Listed offense” means that term as defined in
section 2 of the sex offenders registration act,
1994 PA 295, MCL 28.722.
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Accosting, enticing, or soliciting a child for immoral
purposes;
Involvement in child sexually abusive activity or
material;
Sodomy, if a victim is under 18;
A third or subsequent offense of engaging in indecent
or obscene conduct in a public place or indecent
exposure;
Except for a juvenile disposition or adjudication,
gross indecency, if a victim is under 18;
Kidnapping, if a victim is under 18;
LISTED OFFENSE (CONT.)
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Soliciting, accosting, or inviting another person to commit
prostitution or an immoral act, if a victim is under 18;
Pandering for purposes of prostitution ;
First-, second-, third-, or fourth-degree CSC or assault with
intent to commit CSC;
Any other violation of a State or local law that, by its
nature, constitutes a sexual offense against an individual
under 18;
An offense committed by a person who was, at the time of
the offense, a “sexually delinquent person” as defined in
the Michigan Penal Code;
An attempt or conspiracy to commit an offense listed
above;
An offense substantially similar to an offense listed above,
under a law of the United States, any state, or any country,
or under tribal or military law
WHAT IF CRIMINAL HISTORY?

If the report received . . . discloses that an individual
has been convicted of a felony other than a listed
offense, then the school district … shall take steps to
verify that information using public records and, if
the information is verified using public records, shall
not employ the individual in any capacity or allow
the individual to regularly and continuously
work under contract in any of its schools unless the
superintendent or chief administrator and the
governing board or governing body, if any, of the
school district, intermediate school district, public
school academy, or nonpublic school each specifically
approves the employment or work assignment in
writing.
HERE’S WHERE IT GETS TRICKY
April 25, 2012, the EEOC issued Enforcement
Guidance relative to “the Consideration of Arrest
and Conviction Records in Employment Decisions
Under Title VII”
 Title VII is a federal law prohibits discrimination
on the basis of race, color, religion, sex, or
national origin
 The EEOC explained that blanket prohibitions
against the hiring of those with convictions have
a disparate impact on racial minorities
 Must show policy or decision has legitimate
business necessity

LEGITIMATE BUSINESS NECESSITY

EEOC encourages usage of the
“Green Factors” (Green v.
Missouri Pacific RR, 549 F.2d
1158 (8th Cir. 1977)):
The nature and gravity of the
offense or conduct;
 The time that has passed since
the offense or conduct and/or
completion of the sentence; and
 The nature of the job held or
sought.

APPLICATION OF THE GREEN FACTORS
Will rarely lead to the upholding of a blanket
prohibition regarding criminal convictions
 May not use the mere charge of a crime as reason
to discharge or not hire
 Unless legitimate business necessity exists for
the blanket prohibition, must consider each
conviction separately

HOW ABOUT CURRENT EMPLOYEES?

SSI – Section 1230c

If a school district receives notice from an
authoritative source that an employee or contracted
individual has been convicted of a listed offense:
District must verify using public records;
 If verified, shall not employ or allow to work under contract.

HOW ABOUT CURRENT EMPLOYEES?

SSI – Section 1230d
If employee/contractor is charged with a crime listed
in sections 1535a(1) or 1539b(1) they must, within 3
business days of arraignment, notify MDE and the
superintendent of employing/contracting district.
 If employee/contractor is convicted of any crime
after being charged with a crime listed in sections
1535a(1) or 1539b(1) they must, immediately, notify
superintendent of public instruction and the
superintendent of employing/contracting district.

HOW ABOUT CURRENT EMPLOYEES?

SSI – Section 1230d (cont.)
Failure to provide notification is itself a crime – and a
crime to the same level (i.e., misdemeanor or felony)
as the crime the individual has failed to report.
 “A person that fails to report may be discharged from
his or her employment or have his or her contract
terminated.” MCL 380.1230d(4)
 Discharge not subject to TTA – MCL 38.101a

CRIMES LISTED IN 1535A(1) AND 1539B(1)

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

Any Felony;
Fourth-degree criminal sexual conduct (CSC) or an attempt to commit
that offense;
Third- or fourth-degree child abuse or an attempt to commit that
offense;
A misdemeanor involving cruelty, torture, or indecent exposure
involving a child;
A misdemeanor violation of Section 7410 of the Public Health Code
(which prohibits the delivery of a Schedule 1 or 2 controlled substance
that is a narcotic or cocaine, by a person who is 18 or older to a person
who is under 18 and at least three years younger than the offender, or
delivery on or within 1,000 feet of school property);
Breaking and entering;
Allowing a minor to possess or consume alcohol at a social gathering
on premises under the offender’s control;

Indecent exposure;

Larceny from a vacant building;

Selling or furnishing alcohol to a minor; and

Any misdemeanor that is a Listed Offense.
HOW ABOUT CURRENT EMPLOYEES?
SSI – Section 1230d (cont.)
 Subsection
(7) (along with 1535a(15) and
1539b(15)) calls for the MDE, in conjunction with
the Dept of Information Tech and the Dept of
State Police to develop and implement a program
that does a biannual comparison and report of
the list of individuals employed by or working in
schools with the conviction information received
by the state police.

HOW ABOUT CURRENT EMPLOYEES?
SSI – Section 1230d (cont.)
 If a school district receives a report that discloses
a criminal conviction, the rules of 1230(9) and
1230a(10) apply:

i.e., if listed offense – shall not employ; if felony other
than listed offense – shall not employ unless
 If conviction is a non-listed felony offense, should
consider Green factors

LEGISLATIVE CONCERNS
1230d(7)
report
is
only
required by statute until July
1, 2008.
 What if I learn of a felony
conviction
from
an
authoritative source other
than the reports previously
discussed?

?????
 Statute is silent on this issue –
i.e., may take action, but none
is required

HOW ABOUT CURRENT EMPLOYEES?

Sections 1535a and 1539b


Sections are the exact same except 1535a relates to
those holding a teaching certificate and 1539b relates
to those that hold state board approval
1535a(1) and 1539b(1)

If an individual is convicted of crime listed (see slide
above) they must be notified that their
certification/approval may be suspended pending a
hearing.
HOW ABOUT CURRENT EMPLOYEES?

1535a(2) and 1539b(2)

If an individual is convicted of crime listed in that
section, “the superintendent of public instruction
shall find that the public health, safety, or welfare
requires emergency action and shall order summary
suspension of the person's teaching certificate . . . and
shall subsequently provide an opportunity for a
hearing.”
CRIMES LISTED IN 1535A(2) AND 1539B(2)




Criminal sexual conduct in any degree, assault with intent to commit
CSC, or an attempt to commit CSC in any degree;
Felonious assault on a child, first-degree child abuse, or an attempt to
commit first-degree child abuse.
Cruelty, torture, or indecent exposure involving a child;
Manufacture, delivery, or possession with intent to manufacture or
deliver, of at least 1,000 grams of a Schedule 1 or 2 controlled substance
that is narcotic or cocaine;

Intentional or knowing possession of a Schedule 1 or 2 narcotic or cocaine;

Delivery of a Schedule 1 or 2 narcotic or cocaine to a minor;

A violation of Section 7410 of the Public Health Code (described above);

Recruiting, inducing, or coercing a minor to commit a controlled substance
felony;

Assault with intent to commit murder;

Armed assault with intent to steal;

Attempted murder;

Accosting, soliciting, or enticing a child for immoral purposes;

First- or second-degree murder; and

Armed robbery.
HOW ABOUT CURRENT EMPLOYEES?

1535a(4) and 1539b(4)
If a person convicted of a crime listed in subsection
(2) has been suspended from active duty the school
district shall discontinue the person’s compensation
pending the hearing
 If the superintendent of public instruction does not
suspend or revoke the person’s certificate or state
board approval, the individual shall be made whole
by the school district without interest

INTERACTION WITH THE TTA
The Teachers’ Tenure Act contains certain
exceptions also related to criminal convictions
 Article IV, section 1a of the TTA (MCL 38.101a)
states:


Rights of a teacher under the TTA are subject to:
1230d(4) – discharge for failing to disclose conviction;
 1535a(4) – suspension of pay for conviction of sub (2) crime;
and
 1535a(5) – make whole provision if certificate not revoked
or suspended.

INTERACTION WITH THE TTA

Article IV, section 1a of the TTA (cont.)
Conviction of a violation of one of the crimes listed in
1535a(1) “is considered to be reasonably and
adversely related to the ability of the person to serve
in an elementary or secondary school and is sufficient
grounds to support the discharge or demotion of a
teacher on continuing tenure.”
 Such conviction, however, is still subject to the
procedures of the TTA.

INTERACTION WITH THE TTA

Article IV, section 3 of the TTA (MCL 38.103)
states:
If “criminal charges have been filed against a
teacher” the controlling board may place their salary
into an escrow after tenure charges have been filed
and the teacher is suspended from active duty
 Health or life insurance benefits may be suspended

INTERACTION WITH THE TTA

Article IV, section 3 of the TTA (cont.)
If a teacher suspended from active duty after the
filing of tenure charges is convicted of a felony that is
not a listed offense or a misdemeanor that is a listed
offense “the controlling board shall discontinue the
teacher's salary effective upon the date of conviction”
 This would supplement the suspension of salary
under 1535a(4) – i.e. for the conviction of a crime
listed under 1535a(2) or 1539b(2).

PRACTICAL APPLICATIONS

Upon Hiring or Contracting
Must have employee or individual to work in school
building submit to criminal history and background
check;
 If conviction of a listed offense, shall not employ
 If conviction of a felony other than a listed offense,
shall not employ unless


Apply Green factors in determining the unless
PRACTICAL APPLICATIONS

Current Employee or Individual Working in
School Building
If the school district learns from any authoritative
source that the individual has been convicted of a
listed offense, school district shall not employ
 Procedural protections of the TTA still apply - i.e.,
must file tenure charges

PRACTICAL APPLICATIONS

Current Employee or Individual Working in
School Building

If the school district learns from the biannual MDE
report that the individual has been convicted of
A listed offense, school district shall not employ
 A felony other than a listed offense, school district shall not
employ unless
 Green factors apply


Procedural protections of the TTA still apply - i.e.,
must file tenure charges
PRACTICAL APPLICATIONS

Current Employee or Individual Working in
School Building
If the school district learns from any authoritative
source that the individual has been convicted of a
felony that is not a listed offense, the school district is
not compelled to any action (at least until a report is
received)
 Apply Green factors
 Should the district choose discharge, procedural
protections of the TTA still apply - i.e., must file
tenure charges

PRACTICAL APPLICATIONS

Current Employee or Individual Working in
School Building
If the employee fails to timely report a charge of a
crime listed in 1535a(1) or conviction of any crime
after being charged with a crime in 1535a(1), the
individual may be discharged
 Procedural protections of the TTA do not apply
 School district must provide notice and an
opportunity for a hearing with the school district

PRACTICAL APPLICATIONS

Stopping Employee Pay
If charged with any crime, may suspend payment to
employee and pay into escrow account upon the filing
of tenure charges;
 If convicted of a felony that is not a listed offense or
a misdemeanor that is a listed offense the school
district may suspend payment (without escrow) upon
filing of tenure charges;
 If convicted of crime listed in 1535a(2) or 1539b(2),
the school district shall suspend payment (without
escrow) pending certification proceedings.

PRACTICAL APPLICATIONS
The procedural protections of
the TTA and requirement to
continue pay do not apply
when an individual is not
certificated – i.e., certificate is
revoked
 Requirement to continue pay
under the TTA does not apply
if the teacher is not willing
and able to teach – i.e., in jail
or has bond restrictions that
do not allow them to teach

APPLICATION OF GREEN FACTORS –
SCENARIO 1
Applicant/Employee
has
conviction
for
misdemeanor embezzlement (less than $2,000)
from 15 years prior.
 Individual is applying for position as bookkeeper
in business department?
 Individual is applying for position as janitor?
What if 5 years prior? What if a felony (More
than $2,000 but not more than $10,000)?

APPLICATION OF GREEN FACTORS –
SCENARIO 2
Applicant/Employee has conviction for felony
possession of narcotics (less than 25 grams) from
20 years ago while in college.
 Individual is applying for position as a teacher?
 Individual is applying for position as school
secretary?
 What if 5 years ago?

APPLICATION OF GREEN FACTORS –
SCENARIO 3
School district receives report from MDE that
current teacher has been recently convicted of
operating a vehicle while under the influence of
liquor (3rd offense) – a felony
 Conviction occurred in June – i.e., teacher missed
minimal if any time from work
 Teacher is certified K-6 and currently teaches 2nd
grade

ADDITIONAL QUESTIONS?
Robert T. Schindler
40950 Woodward, Suite 350
Bloomfield Hills, MI 48304-5129
Direct: (248) 988-5696
Cell: (248) 431-5401
Email: [email protected]

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