This material was originally presented as part of the professional development program of the New Hampshire School Administrators Association on November 19, 2002. 

A Word of Caution

No two cases are exactly alike. This material is designed to provide the administrator with a broad understanding of the law pertaining to the investigation of complaints about school employees. This material does not include every aspect of the law. You are strongly encouraged to seek an opinion from your legal counsel regarding any specific case.

TABLE OF CONTENTS

OVERVIEW

The purpose of this material is to provide the education administrator with a general understanding of the law in New Hampshire as it pertains to the investigation of complaints about school district employees. The goal of this material is threefold:

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I.   RECEIPT OF A COMPLAINT ABOUT AN EMPLOYEE

A school district may receive complaints relating to the conduct of its employees from a number of sources, including parents, students, other employees and even members of the public. Since the District's liability for employee misconduct may turn on what the District knew and how it responded, it is imperative that building level administrators be trained in recognizing when a complaint is made and that they know to whom they should report the complaint so that it can be fully investigated. Once the complaint has been reported to the appropriate person(s) within the District, an initial screening should be conducted to determine the degree of current risk, the nature of the complaint, the District's reporting obligations and the scope of investigation needed.

A. Assessing Current Risks

Once a complaint is received, the first assessment to be made is a determination of whether the complaint relates to past or current conduct. If the complaint does relate to current conduct, a determination must be made as to whether the employee poses a risk of harm to a student, coworker or member of the public. If so, a suspension (with pay if necessary) or an administrative leave with pay ought to be considered until a thorough investigation can be completed. If the complaint relates to an incident in the past and it is unlikely that it will be repeated, or the nature of the complaint is such that there is no risk of further harm, there may be no need to remove the employee from the workplace during the investigation.

It is also necessary to evaluate the timeliness of the complaint. If it relates to past conduct, it is possible that the complaining party has waited too long and will be barred from initiating any legal action based on the alleged conduct. Generally, the statute of limitations for bringing a civil suit is three (3) years. Some claims may have shorter statutes of limitation, which will be discussed later. Even if the statute of limitations has passed, if the complaint relates to a current employee, it should nonetheless be investigated and remedial action taken if appropriate. Once the District has knowledge of the alleged misconduct, if the District does nothing, it could face liability if the conduct is repeated.

B. Identifying the Nature of a Complaint

Once you have dealt with minimizing the current risk, the next step is to determine the nature of the complaint. This is essential because the District's reporting obligations, the nature and scope of the investigation and the District's obligation to respond will turn on the type of complaint with which you are dealing.

1. Mistreatment of Student(s)

One type of complaint a school district might receive is that a teacher, or other employee of the district, has physically or verbally mistreated a student. Such claims create the possibility of liability for both the employee and the district. It is also possible that a parent or former student will complaint that the student was harmed by an employee of the District and complain that other teachers or administrators knew of the abuse and failed to intervene to protect the student. See Marquay v. Eno, 139 N.H. 708 (1995).

Although no claim has been recognized yet in New Hampshire, it is also possible that a parent could claim that their child was harmed by another student(s) and that a teacher or administrator knew of the offending student's behavior and did nothing to protect the victim. In fact, the Pupil Safety and Violence Prevention Act, R.S.A. 193-F, requires that school employees who either witness or are aware of "bullying" report such behavior to the Superintendent.

2. Sexual Harassment

A district may receive a complaint by employee claiming that she (or he) is being sexually harassed by another employer of the district. "Sexual harassment" is any kind of unwelcome contact, physical or verbal, which is directed at an individual because of his/her gender. In order to be unlawful, the conduct must be sufficiently severe and pervasive that it interferes with the individual's ability to do his/her job. Mere insults or embarrassing jokes are not actionable unless they are repeated.

Unless the harassment is by a supervisor and has resulted in a tangible employment action (such as a termination, demotion, etc.), an employer can avoid liability if (1) it has taken appropriate steps to avoid harassment, such as adopting policies and training employees, and (2) the alleged victim failed to report the harassment and give the employer the opportunity to remedy the situation. Thus, it is imperative that employers respond to complaints of harassment by investigating and taking appropriate remedial action.

The complaint may also come in the form of a notice from the New Hampshire Commission for Human Rights advising the employer that a Charge of Discrimination has been filed. The statute of limitations for filing a charge of discrimination is 180 days (300 days if the charged if filed concurrently with the EEOC). The employer must file a response or answer (often referred to as a "Position Statement") to the Charge. The Notice will advise the employer of the deadline for filing the response. An investigator from the Commission will be assigned to the case and will investigate the claims to determine whether there is any merit to them.

3. Employment Discrimination

School Districts may also receive complaints by employees alleging that they are being discriminated against on the basis of their age, gender, race, religion, national origin, marital status, sexual orientation or physical or mental disability. Discrimination on such grounds is prohibited under New Hampshire and/or federal law. The complaint may come from an employee claiming that he/she has been denied some benefit of employment on some prohibited grounds or, as with a sexual harassment claim, the notice may come from the New Hampshire Commission for Human Rights. Although such complaints may be filed against the employer, it is generally the conduct or decision of a supervisor or administrator which leads to the complaint. Thus, it is necessary not only to respond to the charge of discrimination, but to investigate to be sure that a supervisor or administrator is not harboring unlawful biases.

4. Retaliation

Employees often complain that they are subjected to retaliation because they complained about possible misconduct by their supervisors. There are numerous statutes which prohibit such retaliation, including Title VII of the Civil Rights Act and New Hampshire's Whistle Blowers Protection Act, RSA 275-E. In the event of a complaint against a supervisor, it is advisable to warn the supervisor against taking any sort of action that can be viewed as retaliatory.

The statute of limitations for filing a claim of retaliation under Title VII is the same as for claims of discrimination. The Whistle Blowers' Protection Act does not contain a statute of limitations and, therefore, presumably the general three (3) year statute applies.

5. Educational Discrimination

Parents may also complain that a teacher or other staff member has failed to comply with a student's individual Educational Plan ("IEP") or has otherwise failed to accommodate a student's disability.

6. Union Grievances

For those school districts that are unionized, grievances may be filed by the union alleging some breach of the collective bargaining agreement. While grievances generally relate to decisions made by the administration, it is possible that a grievance could relate to the conduct of an individual supervisor or administrator. Although it is possible, such grievances generally do not involve conduct which would also expose the district to civil liability. Nonetheless, some level of investigation will be necessary in order to respond to the grievance. The grievance procedure provides a mechanism for resolving the grievance, either internally or through arbitration.

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II.   YOUR REPORTING DUTIES

The receipt of a complaint by the district's administration may trigger a reporting duty on the part of the administration. Therefore, it is vital that the administrator know whether or not the law requires that they report the complaint, and to whom the complaint must be reported. By diligently adhering to these reporting obligations the administrator can reduce district liability and fulfill their statutory obligations to protect students.

A. Reporting to Law Enforcement

Common sense dictates that any complaint alleging a crime by an employee should be reported to law enforcement. Public school administrators have a civic duty to report alleged crimes by their employees.

In addition, administrators may have a statutory duty to report crimes which occur within the "Safe School Zone," in accord with the "Safe School Zones" Act (RSA 193-D:1 et seq.).

This Act prohibits any "act of theft, destruction, or violence" within a " safe school zone" and provides for stiffer criminal penalties for certain crimes committed within the safe school zone. In addition to providing for the punishment of perpetrators, the Act contains certain public employee reporting requirements.

1. What is my Obligation?

School employees who witness, or who have information from the victim of, "an act of theft, destruction, or violence" in a "safe school zone" are required to file a report with their supervisor detailing any such acts they witness. The supervisor shall forward any report to the principal, who will file it with the police department in writing within 48 hours. See NH RSA 193-D:4.

If the alleged victim is a student, the principal should "immediately" notify the parent/guardian of the alleged victim that a report has been made to the police. The obligation to report a simple assault is deemed to be waived provided the District has a discipline policy requiring parental notification.

2. Where is the "Safe School Zone?"

The "safe school zone" is an area inclusive of "any school property or school buses."

3. What is an "act of theft, destruction, or violence?"

An "act of theft, destruction, or violence, includes the following criminal acts:

4. What goes in my report?

The Department of Education has created a standard form, ED #317 that may be used for reporting under the Safe School Zones Act.

5. Any exceptions?

Yes, a written report need not be made when law enforcement responds at the time of the incident and generates a written report.

6. Penalties for failure to report

Any person who knowingly fails to comply with the reporting requirements under this statute (unless the report has been waived) is guilty of a violation.

Practice Pointer: If you have any doubt as to whether or not a crime has been committed you should report the matter to law enforcement. You are not tasked with making the legal judgment as to whether or not a crime has been committed, and therefore you should not assume that responsibility. Instead, let the law enforcement officials make the judgment as to whether or not there has been a crime.

Administrators, as "school officials" are under a statutory obligation to report suspected abuse and neglect. The primary body to whom this reporting obligation runs is the New Hampshire Department of Health and Human Services, Division for Children, Youth and Families. When a complaint is made of potential abuse by an educator, the complaint, if credible, triggers a reason to suspect abuse and a concomitant reporting requirement.

1. What is my Obligation?

The Child Protection Act (NH RSA 169:1 et seq.) provides, in NH RSA 169-C:29, that, [a]ny . . . teacher, school official, school counselor . . . or any other person having reason to suspect that a child has been abused or neglected shall report the same. . . " to the New Hampshire Department of Health and Human Services.

2. What is "abuse or neglect?"

The terms "abuse or neglect" are defined in the context of an "abused child," or a "neglected child." An "abused child" means any child who has been . . .

A "neglected child" means any child who has been . . .

Note: Certain forms of religiously based treatment may not constitute "neglect."

3. How and what do I report?

An initial immediate report must be made orally by " telephone or otherwise" and followed by a written report within 48 hours if requested by the Department. A report should contain the following:

In addition, it is a good practice to alert the school principal of your need to file a report. In those circumstances where you have a question regarding your duty to report, you should consult your supervisor/principal with regard to whether or not you may have a duty to make a report.

4. Am I legally liable for making a report that turns out to be unfounded?

NH RSA 169-C:31 provides that a "good faith" reporter is immune from civil and criminal liability. This liability does not extend to protect a reporter that has actually engaged in abuse and neglect from the consequences of his or her actions.

C. Reporting to Parents of Student Victims

Any complaint involving a crime or any form of injury by an educator on a student will trigger a duty on the part of the district to notify the parent of a student victim. In fact, the "Safe School Zones Act" now requires in RSA 193-D:4, I, a. that if the victim of a crime in the Safe School Zones is a student, that parents be notified that a report has been made to local law enforcement.

D. Reporting to the Employee who is the subject of the Complaint

At some point, due process may require that an employee be notified that they are the subject of a complaint. While the district may, in some circumstances, be warranted in withholding that information from the employee during a preliminary investigation, fundamental fairness usually will dictate that the employee be notified of the Complaint.

E. Reporting to the Risk Manager/Liability Insurer

Certain employee acts may give rise to potential liability on the part of the District. In this litigious society, you must assume that any complaint alleging injury., malfeasance, mistreatment, discrimination, or the like on the part of the employee will give rise to potential claims of liability on the part of the district. A lack of timely notice to your liability carrier can compromise your coverage.

Practice Pointer: Always notify your liability carrier and/or risk manager of any complaint alleging injury to body, injury to property, discrimination, harassment, mistreatment, defamation, retaliation, civil rights violation, malfeasance, sexual harassment, sexual abuse, or the like. You can assume that it will give rise to a claim of liability on the part of the district.

In rare cases, the complaint may involve embezzlement or malfeasance with regard to district funds. If the complaint involves an administrator, there may be a fiduciary bond in place. The bonds require timely notice, and most bonding companies reserve the right to participate in recoupment efforts. A lack of timely notice can compromise your coverage under the bond.

G. Reporting under the Pupil Safety and Violence Prevention Act

The Pupil Safety and Violence Prevention Act is primarily designed to prevent "bullying" by students of other students. However it protects students from "insults, taunts, or challenges, whether verbal or physical in nature, which are likely to intimidate or provoke a violent or disorderly response." Query, would a report from a complaining employee to a principal insulate that complaining party from civil liability? See NH RSA 193-F:3(IV).

H. Reporting to the School Board

When it comes to reporting to the School Board, the administrator faces a natural tension. The tension is between preserving the right of the educator to a full and fair hearing in the event of termination, and ensuring that the Board has sufficient knowledge of the status of a matter so that they can quell the occasional hue and cry from the community.

As a general rule and as a matter of best practice, a Board is not entitled to know the details of a personnel matter unless, and until, it reaches the Board in the context of a full and fair hearing. The state regulations clearly delineate the dichotomy between a Superintendent's responsibility and a Board's responsibility. Whether or not that dichotomy is honored is usually dependent upon the ability of the Board to understand the scope and limits of its responsibility.

I. Reporting to the State Department of Education

Educators having reason to suspect that another educator has abused or neglected a student have a duty under NH Regulation ED 510.01 to report that suspected educator to the Bureau of Credentialing, Department of Education.

ED 510.01 goes on to state, in subpart c., that a failure to report any charges of misconduct or incidence of suspected misconduct shall result in disciplinary action being taken against the non-reporting educator by the State Board of Education.

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III.   PRELIMINARY DISCIPLINE DECISIONS

As mentioned above, one of the first decisions to be made after a complaint is received is the decision about whether the employee about whom the complaint relates ought to be removed from the workplace while the investigation proceeds. Such action is not necessary in every case, but should be considered where the complaint relates to conduct which is either ongoing or is likely to reoccur and poses a risk of harm to someone. Examples of such cases would be a complaint alleging mistreatment of students or a complaint of sexual harassment.

A. Suspension with Pay/Administrative Leave

Suspension with pay is one alternative when a district wants to remove an employee from the workplace while it completes its investigation. Until a conclusion is reached as to the truth of the allegations it is advisable to keep the employee on paid status. An "administrative leave with pay" is essentially the same as a suspension although it sounds less punitive. In some cases, some sort of administrative leave may be appropriate merely because the accused employee is so distraught over the allegations that he/she cannot effectively remain in their position. In those cases, the leave may actually be voluntarily accepted rather than punitive.

For teachers, the Superintendent has the authority, for cause, to remove from the classroom, but the employee must remain on paid status until the Board votes to dismiss. See RSA 189:31. Both a suspension and an administrative leave would be considered a "removal" and, therefore, the allegations must be serious enough to justify the "for cause" standard. For both teachers and non-teachers, applicable collective bargaining agreements should always be consulted to be certain there are no restrictions on the superintendent's authority.

B. Reassignment

Alternatively, a temporary reassignment can achieve the objective of removing the employee from the situation in which the alleged misconduct is occurring without a suspension. This alternative should be considered only where the alleged misconduct is not likely to be repeated in the reassigned position. For a teacher, it would appear that a reassignment to a different classroom would not trigger RSA 189:31. However, if the reassignment was to a strictly administrative position, RSA 189:31 would apply and there must be "cause." Once again, collective bargaining agreements should be consulted to be sure that transfer and reassignment provisions are not violated.

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IV.   DOCUMENTING THE COMPLAINT

Many complaints first arise as a spoken communication. They may enter the District in the form of a telephone call or a face-to-face complaint to an administrator. As a general rule, the complainant should be encouraged to reduce their complaint to writing. Reducing the complaint to writing produces the following benefits:

There are always exceptions to the rule. For example, it may be difficult or unreasonable to require that a young student reduce their complaint to writing. In those circumstances, the ideal practice is for the investigator to meet with the student in the company of the parents. The investigator should then make a memorandum to the file summarizing in detail the student's statement. If the parents participated in the meeting, they should be offered a copy of the memorandum. The general rule is that any formal interview of a student should occur in the presence of the parents, or at a minimum, after parental permission.

At times, students will volunteer a complaint to a trusted teacher, guidance counselor, or principal in the school setting. The administrator should request that the recipient of the complaint reduce it to writing, and should remind the recipient that the subject matter is a personnel matter which should remain confidential. Under most circumstances, the parents/guardians should be notified that their child has made a complaint. This notification protects the student, protects the parents, and also provides a potential source for testing the credibility of the complaining student.

Finally, the administrator should remember that an eighteen year old student has the right to request the school district that it not inform the parents/guardians of their complaint. The district should encourage disclosure by the student to the parents, but cannot require disclosure. The eighteen year old student is an adult and must be treated accordingly.

The foundation for any investigation is the complaint. Therefore, no investigation file is complete without a written summary of the complaint.

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Once a complaint has been documented, the nature of the complaint has been identified, and the administrator has determined whether or not they have a reporting duty, they then can determine whether or not there is a need to investigate the complaint. In making that determination, the administrator should ask the following questions:

1. Is the complaint sufficiently credible to warrant investigation?

An administrator owes a duty to its district, the taxpayers, and the employee to make a preliminary determination as to whether or not the complaint has sufficient merit to warrant an investigation. From time to time, individuals will make complaints which are patently false or frivolous. If a complaint is immediately discernable as false, or frivolous on its face, the district has no duty to conduct an investigation.

2. Do you require any additional information?

On some occasions the district simply will not require any further information. For example, if the district receives a certified copy of a court conviction for felonious sexual assault regarding a certified teacher, the district is under a mandatory duty to terminate that employee in accord with RSA 189:14-D and there really is no need for an extensive investigation.

Unfortunately, it is the rare case which can be classified as false, frivolous or simply not requiring further investigation. The majority of complaints set forth a "prima facie" complaint; that is, on their face, they are sufficiently credible to warrant an investigation.

When an administrator encounters a close call, they should err on the side of investigation. Throughout the United States there has been an increasing trend in litigation alleging that a district should have investigated a complaint, but chose instead to disregard the matter. One need only look as far as the current issues pertaining to the Catholic Church to discern the consequences of an entity's failure to investigate and resolve a prima facie complaint.

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VI.   THE CONDUCT OF AN INVESTIGATION

A. Identifying the Investigator

The first step in any investigation is to determine who is going to conduct the investigation. Depending on the allegations, a building level administrator, a human resources manager or an assistant superintendent are potential investigators. In some cases, it may be appropriate to involve legal counsel or to hire outside investigators. One benefit of having legal counsel involved is that the investigation may fall within the protection of the attorney-client privilege. Outside investigators also bring an element of objectivity to an investigation.

B. Scope of the Investigation

Obviously, the scope of the investigation will vary from case to case, depending on the nature of the complaint. In all cases, however, it will be necessary to interview and take statements from the complaining party and any witnesses. The accused employee should also be given the opportunity to respond to the accusations. In many cases, there may be documents or records to review. In particular, the accused employee's personnel file and disciplinary record are generally relevant.

If the investigation has the potential to result in disciplinary action, the accused employee should be permitted to have a representative of the union present with him/her during any interviews. In fact, union relations are often fostered if the union is involved early on it the investigation. Union representatives generally will appreciate getting the "heads up" regarding a situation as opposed to learning about it after the fact. Also, especially if the allegations are particularly egregious and appear founded, the union representative may even be helpful in reaching a quick resolution.

C. "Papering the File"

The investigator should keep a separate, confidential file on each complaint. Notes of all interviews and discussions should be kept. Where appropriate, written statements should be obtained from the complaining party, from the accused, and, if applicable, from witnesses. A summary of the investigation (who was interviewed, when, what was said, etc.), and the conclusions reached by the investigator should also be prepared. Depending on who the investigator is, a recommendation for further action may also be appropriate. It is just as important to document the basis for finding a complaint to be unfounded as it is to document the basis for finding it to be founded. If a second complaint is filed after no action was taken against an employee following an initial complaint, it will be essential for the District to be able to demonstrate that it had insufficient evidence of wrongdoing to justify any disciplinary action.

None of the investigation notes or reports should be placed in an employee's personnel file. Only the actual disciplinary action, if any, should be placed in the personnel file.

D. Reaching a Finding(s)

Once the investigator has interviewed everyone and reviewed any documents, he or she must reach a conclusion. The decision to be made is whether or not the complaint is founded. It is not necessarily the investigator's job to decide the appropriate response if it is founded. In reaching his/her conclusion, the investigator ought to consider the following:

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VII.   THE RESOLUTION OF AN INVESTIGATION

Once an investigation is complete, it is incumbent upon the administrator to resolve or, in some circumstances make a recommendation for resolution, of an investigation. If the resolution of the complaint is something less than dismissal, the Superintendent of Schools generally has authority to resolve the matter. NH RSA 194-C:4 outlines the Superintendent services provided by an SAU or single school district and these services include supervision of staff and the processing of grievances. In addition, ED 302.01 clearly establishes the role of the Superintendent as the executive officer of the local school district. ED 302.02 vests the Superintendent with authority to direct and supervise the work of all employs of the district or districts as well as responsibility for removing a teacher or other employee of the district from the classroom in accordance with RSA 189:31 and recommending the dismissal of certified staff to the School Board.

A. Understanding Your Options

It is important to understand that the resolution of a complaint not confined to the black and white decision-making framework of termination versus retention. Instead, the administrator has a vast panoply of ways in which a complaint can be resolved. Some of the options are as follows:

1. A written determination that the complaint is unfounded.

2. A conclusion that the investigator has been unable to either substantiate or rule out the complaint and therefore the complaint cannot be resolved.

3. An oral word of caution from a supervisor.

4. A written word of caution from a supervisor.

5. An oral reprimand.

6. A written reprimand.

7. A written reprimand and suspension without pay.

8. A written reprimand and removal from the classroom with reassignment to a non-classroom position in accord with RSA 189:31. (Note: This is subject to a "for cause" standard.)

9. Written findings that the complaint is true and a recommendation for dismissal to the School Board with stated reasons for the dismissal. (Note: This is subject to the equivalent of a "just cause" standard.)

B. Mandatory Dismissal

The following criminal acts require that the employee be terminated by the School Administrative Unit or school district after it receives notice of the conviction:

C. The Role of Nonrenewal

In some cases, where an educator is nontenured, the administrator is faced with a difficulty decision of whether to recommend termination or nonrenewal. In those cases where the educator's conduct falls short of the "just cause" standard set forth in RSA 189:13 for dismissal, the administrator may still wish, in the case of a nontenured teacher, to consider nonrenewal under RSA 189:14-a.

As a general rule, a teacher may be nonrenewed provided he/she receives notice in writing of the district's decision to nonrenew by April 15. A teacher who has taught for three consecutive years in the district may request in writing within ten days of a receipt of a notice of nonrenewal a written statement of the reasons for nonrenewal; and a hearing before the School Board. The administrator should note that service outside of the district may result in credit for time served and the conclusion that a teacher has taught "for three consecutive years or more."

D. The Standard for Termination

NH RSA 189:13 provides that a teacher may be terminated for the following reasons:

However, no teacher shall be dismissed before the expiration of the period for which they were engaged to teach without having been previously:

E. Documenting a "Nonfinding"

It is vital that any investigation which is concluded by "nonfinding" or a finding that the complaint was unjustified be documented. The employee is entitled to closure and closure is vital to ensure that a subsequent similar complaint does not result in district liability on a "knew or should have known" theory.

F. Media Relations

One of the most difficult tasks faced by an investigator is the management of media relations. Whenever a complaint has been lodged, the investigator is faced with the natural tension between the employee's privacy rights and the interests of both the complainant and the public in the resolution of the complaint.

When the taxpayers question the safety of their children, it is unsatisfactory for the administrator to simply make the usual "no comment" statement. In those cases where the matter does not involve the safety of a district's students, the administrator should, when questioned, assure the public that the matter does not involve the safety of the district students. In those cases where the safety of a student was compromised and the educator has been removed, the administrator can at least give assurances that there is no ongoing threat to the safety of the students.

Before speaking with the media, it is well advised to consult with counsel to determine the scope of the comments that you may make as well as any limitations on your commentary.

G. A Review of Your Reporting Duties

Before you finally close the jacket on your investigation folder, it is important for you to review whether or not the scope of your investigation triggered a new reporting duty. If it did, then you need to comply with your ongoing duty to report.

H. Impact on the Personnel File

The ultimate resolution of a complaint will determine whether or not the matter will land in the employee's personnel file. The district administrator should also be aware of the fact that some collective bargaining agreements require that a personnel file be purged of disciplinary actions after a defined period of a repose.

I. Liability Exposure

Regrettably, certain actions by employees can create liability exposure on the part of a district. In addition, a failure to make wise and prudent decisions with regard to the conduct of an investigation can result in liability exposure. This area is one of the most delicate fields of responsibility faced by an administrator. On the one hand, an improper termination decision can result in back pay, reinstatement and attorney's fees being owed to the educator. On the other hand, a failure to diligently pursue an investigation can result in a subsequent allegation that the district either knew or should have known that the educator presented a risk to students. In cases of this nature, the administrator is wise to consult with district counsel throughout the investigative process. The decision-making process in a grey area should always make student safety the priority.