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PEORIA

401 SW Water Street, Suite 106 Peoria, IL 61602 tel 309-671-9000 fax 847-670-7334 www.hlerk.com Arlington Heights O’Fallon Peoria

CSI© School District Keys for Investigating Employee and Student Misconduct Illinois Alliance of Administrators of Special Education February 19, 2015 Stephanie E. Jones [email protected]

Michelle A. Todd [email protected]

mailto:[email protected]

mailto:[email protected]

Copyright 2014. All rights reserved.

Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP

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TABLE OF CONTENTS

STEP 1: BEGINNING AN INVESTIGATION ................................................................................. 3

I. INTERNAL STEPS ................................................................................................................................................... 3

STEP 2: CONDUCTING THE INVESTIGATION ............................................................................ 7

I. GENERAL GUIDELINES FOR CONDUCTING INTERVIEWS ................................................................................................. 7 II. INTERVIEWING THE COMPLAINANT, IF ANY ................................................................................................................ 9 III. INTERVIEWING WITNESSES ................................................................................................................................... 10 IV. INTERVIEWING THE ACCUSED ................................................................................................................................ 12

STEP 3: EVALUATING AND REPORTING THE EVIDENCE ......................................................... 14

I. EVALUATING INFORMATION COLLECTED OVER THE COURSE OF AN INVESTIGATION ......................................................... 14 II. REPORTING THE OUTCOME OF THE INVESTIGATION ................................................................................................... 14

STEP 4: CONCLUDING THE INVESTIGATION .......................................................................... 16

LEGAL CONSIDERATIONS FOR INVESTIGATING STUDENT MISCONDUCT ............................... 17

I. STUDENT BULLYING ............................................................................................................................................ 17 II. ACCESS TO STUDENTS’ SOCIAL NETWORKING ACCOUNTS AND PROFILES ....................................................................... 20

SPECIAL CONSIDERATIONS FOR INVESTIGATING EMPLOYEE MISCONDUCT .......................... 21

I. WEINGARTEN .................................................................................................................................................... 21 II. ATWELL ............................................................................................................................................................ 21 III. ACCESSING EMPLOYEES’ SOCIAL NETWORKING PROFILES ........................................................................................... 21

CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE ............... 23

I. FOURTH AMENDMENT AND GENERAL OVERVIEW ..................................................................................................... 23 II. SCHOOL OFFICIALS MAY GENERALLY SEARCH THE FOLLOWING WITHOUT REASONABLE SUSPICION .................................... 24 III. REASONABLE SUSPICION NEEDED .......................................................................................................................... 25

SPECIAL CONSIDERATIONS FOR INVOLVING SCHOOL RESOURCE OFFICERS IN INVESTIGATIONS ........................................................................................................................................... 26

I. WHAT ARE SCHOOL RESOURCE OFFICERS? .............................................................................................................. 26 II. USING SROS IN INVESTIGATIONS ........................................................................................................................... 26 III. STUDENT RECORDS CONCERNS ............................................................................................................................. 26 IV. MIRANDA ......................................................................................................................................................... 27 V. FOURTH AMENDMENT CONSIDERATIONS ................................................................................................................ 28

INVESTIGATION CHECKLIST .................................................................................................. 29

These materials and the presentation made based on these materials are solely educational in nature and do not constitute legal advice to any person. These materials and the presentation based on these materials are intended as advertising, but not as a solicitation to create an attorney/client relationship between the presenter or the presenter’s law firm and any attendee of the presentation.



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STEP 1: BEGINNING AN INVESTIGATION

School officials are often called to investigate allegations of employee misconduct and student bullying, among other things. Officials receive complaints from a variety of sources, including parents, students, school district employees, and members of the public. Investigations concerning employee misconduct and student bullying can be tricky, leading to potentially grave consequences for the victim, accused staff member or student, any employees who knew or should have known of the alleged conduct, and the school district. When beginning an investigation, it is important to keep in mind that each investigation is organic and not always susceptible to a rigid investigative formula. Nevertheless, it is important to have solid practices in place to ensure that investigations are conducted in a fair, thorough, and objective manner. This outline is designed to provide guidance to any person, administrator, or attorney who is called upon to conduct an investigation.

I. Internal Steps

A. When a complaint is received, it should be given immediate attention. B. The value of an investigation is determined primarily by its thoroughness and

objectivity. For this reason, it is imperative that the investigator be someone who can keep an accurate record of the investigation and someone who will be complete and careful in interviewing witnesses and writing a report. The investigation can be conducted either by an administrator or by an attorney appointed by the school board or superintendent.

C. The investigator should generally be an administrator or outside attorney, not a

teacher or other non-supervisory employee. This is necessary because of the seriousness of the matter being investigated, the possibility that discipline will be imposed at the conclusion of the investigation, and the need to evaluate whether changes in school policies or procedures should be recommended as part of the resolution of the matter.

D. An investigation flows more smoothly when the witnesses, especially the

complaining witness, feel comfortable describing what has occurred. The investigator should spend time establishing a level of comfort in the investigation.

E. Because of the need for objectivity, the investigator should not be someone who

is close to a complainant or the accused.



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F. The investigator should consult with other professionals in the district, such as

the school social worker or psychologist, and with the district's legal counsel at any point where the investigator believes that input would be helpful.

G. After the investigator is assigned the complaint, the investigator should begin by

re-reading any applicable board policies. Often the credibility of a good investigation can be damaged by failure to follow the procedures set forth in the board’s published policy. If the investigator determines that it is necessary to deviate from the written procedures, then that fact should be documented. For example, if the policy states that all witnesses to an incident are to be interviewed, but one witness is out of town and therefore unavailable, the investigator should place a memorandum in the file to that effect. If litigation occurs, the investigator might not be able to remember two or three years later why the witness was not questioned. Contemporaneous documentation helps avoid that situation.

Applicable Board policies may include, but are not limited to, the following:

Uniform Grievance Procedure (PRESS Model Policy No. 2:260)

o Allows students, parents, employees, and members of the

public to submit complaints to school district administration on a wide variety of issues (e.g., allegations of bullying, sexual harassment, discrimination, and violations of board policy).

o Outlines a detailed process for investigating and resolving complaints that may involve a designated district complaint manager investigating the complaint, and preparing an investigative report for the superintendent’s review, the superintendent issuing a decision either affirming or denying the complaint, and a process for appealing the superintendent’s decision.

o Outlines the timelines for each step in the investigative/resolution process.



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Workplace Harassment Policy (PRESS Model Policy No. 5:20)

o Prohibits school district employees from engaging in harassment or abusive conduct on the basis of an individual’s protected status (i.e., race, religion, national origin, sex, sexual orientation, age, citizenship, disability, or other protected status).

o Describes the process for reporting harassment with complaints usually submitted pursuant to the uniform grievance procedure.

Personnel Ethics and Conduct Policy (PRESS Model Policy No. 5:120)

o Requires district employees to maintain appropriate relationships with other staff members, students, and parents. This policy typically references the Code of Ethics for Illinois Educators, adopted by the Illinois State Board of Education.

Student Harassment, Intimidation, and Bullying Policies (PRESS Model Policy Nos. 7:20 and 7:180)

o Prohibit any person (including district employees, agents of

the school district, and students) from harassing, intimidating, or bullying a student on the basis of his/her protected status (e.g., actual or perceived race; color; national origin; military status; unfavorable discharge status from military service; sex; sexual orientation; gender identity; gender-related identity or expression; ancestry; age; religion; physical or mental disability; order of protection status; status of being homeless; actual or potential marital or parental status, including pregnancy; and other protected categories).

Bullying policies must outline a procedure for investigating and resolving reports of bullying. (See Legal Considerations for Investigating Student Misconduct – Bullying, pg. 17).



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H. Where applicable, the investigator should also review any collective bargaining agreement which covers either a complaining witness or the accused. The agreement may contain provisions relating to the conduct of an investigation, notification and representation rights of the accused, disciplinary measures available, or other requirements. In order to avoid labor law consequences, any relevant sections of the agreement must be followed throughout the investigation.

I. The investigator should open a file for the investigation, a single location in

which all material relating to the investigation will be kept. After the investigation is completed, this file should be maintained for reference in the event legal action occurs.

J. If litigation is likely to follow the complaint, notify the district’s insurance

carriers, both legal liability and general liability. Keep in mind that you have a legal obligation to preserve evidence of an incident that may reasonably result in litigation.

K. Arrange a time as soon as possible to meet with the complainant.



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STEP 2: CONDUCTING THE INVESTIGATION

I. General Guidelines for Conducting Interviews A. If appropriate to the circumstances, it is best to have two individuals present

during all interviews. This avoids the “he-said, she-said” situation. B. Conduct all interviews in a private room where those being interviewed cannot

be overheard. C. Witnesses and parties should be interviewed promptly so that memories are

fresh. D. Explain the purpose of the interview briefly at the beginning of the meeting, but

without giving too much detail. It is often sufficient to state that there have been some complaints about a student or “Employee X” and you want to ask the individual some questions about what he or she might have observed.

E. Each witness should be interviewed individually or with a union representative, if

applicable. F. Interviews should be conducted as discreetly as possible and scheduled in a

manner so as not to call attention to the fact that something unusual is occurring.

G. Do not make judgmental statements during the interviews. Listening is better

than talking. H. Get as much detail as possible in response to questions so that you can assess

credibility, both of the individual being interviewed and of other people who may have observed the same events. The ultimate decision on credibility should be at the conclusion of the investigation, not before.

I. Ask open-ended questions wherever possible. Avoid asking leading questions,

those which suggest in the question the answer the interviewer wants to receive.

J. Assure the person being interviewed that, as an employer, you will not tolerate

any retaliation against any witnesses who cooperate honestly and in good faith.



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K. Witnesses may be reluctant to speak and may ask for a promise that their statements be kept confidential. Tell the witness that confidentiality will be maintained to the extent possible in conducting the investigation, but do not promise absolute confidentiality. Explain that the results of the investigation will have to be reported to the Board and the Superintendent so that they can determine the appropriate resolution of the complaint. If the witness persists in demanding confidentiality, require that the demand be made in writing. Explain that confidentiality may hamper both the investigation and the district's efforts to resolve the situation fully. If the employee cannot be dissuaded, the investigator should continue to make reasonable efforts to investigate. In reality, it may be extremely difficult to complete the investigation under such conditions. If this is so, the investigator should document that for the file. The district may wish to require cooperation on threat of employee or student discipline, depending upon the circumstances.

L. Get as much information as possible in writing, especially from the complainant.

There are several methods which can be used depending on the situation. The witness can be asked, at the conclusion of the interview, to write a statement recapping the oral remarks. Or the investigator can prepare a written summary of the witness's statement and ask him or her to sign the document. If the witness/complainant/accused refuses to sign the document, sign and date the statement yourself and note the refusal. The latter method may be preferred as it provides an opportunity for an attorney to review the statement before it is presented to the accused. Statements should be dated as well as signed.

M. In general, it is not advisable to make tape recordings of investigatory interviews.

Many people find taping very threatening and it adds an unnecessary prosecutorial appearance to the investigation. Additionally, reliance on a tape may make the investigator lax about note-taking, which can prove disastrous if the tape were to be lost or damaged. In addition, in the event of legal action, all of the tapes could be subpoenaed, and the methods and talents of the investigator subjected to close scrutiny, in an effort to uncover bias or incompetence. Finally, the witnesses may have discussed other matters, not directly related to the investigation, which could prove embarrassing or distressing if made public or produced in litigation.

N. If any witness, especially the complainant or accused, is uncooperative or seems

evasive or untruthful, the investigator should make a note of that fact and of the behaviors, statements, or actions of the witness that led to that conclusion (e.g.,



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the witness blushed, stammered, refused to look the investigator in the eye and began to tap his fingers nervously). This information will be helpful to the investigator when preparing the investigation report.

II. Interviewing the Complainant, if Any

A. If the investigation is based upon a complaint, the first interview should be with the complainant, if any. If the complaint is made anonymously or the investigation is based on an incident report, you may need to interview potential witnesses first.

B. Provide the complainant with a copy of any applicable policies on the

investigatory process (e.g., uniform grievance procedure, harassment policy or bullying policy).

C. Explain to the complainant that you will be taking notes during the interview so

that you can make an accurate record of what is being said. Explain that you will be asking for a written statement or a signature on your summary of the interview to verify that the information is accurately recorded.

D. Make sure the written statement or summary is detailed and confirmed to avoid

embellishment later. E. Take your time with this interview and conduct it in as orderly a fashion as

possible to elicit all relevant incidents and details. It often helps to go in chronological order, starting with the first time the complainant noticed a problem with the accused. Keep the complainant focused on one incident at a time and ask for all details of that incident before moving on to the next. The information that should be obtained, if possible, for each incident, is:

1. Date and time. If the witness is unsure, try to frame it in relation to

events: Was it before or after Thanksgiving? Did it happen before or after lunch? What was the weather like?

2. Location. 3. Who was present. The witness may not know whether other people in

the room witnessed the incident, but it is still important to get their names. Even if they did not see or hear the incident itself, these people can often corroborate or dispute related facts, such as whether the



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parties were in fact together, how they seemed before or after the incident, and whether either one said or did anything unusual after the incident.

4. A detailed description of what occurred. Have the witness start at the

beginning of any interaction, not simply at the point where he or she believes the incident occurred. Where possible, have the witness recount the exact words, gestures, or actions that were used by both parties.

5. Reaction to the incident. How did the complainant deal with the

comment or conduct? How did the accused behave? Did anyone else react or respond to the incident?

F. If it is not obvious, ask why the complainant is reporting the incident. G. Obtain any documents relating to the incident. For example, if the incident

includes notes or e-mail messages, ask if the witness has kept them and obtain copies for the investigation file.

H. Describe the general procedure for the rest of the investigation. Explain that you

will interview other witnesses and the accused and that you may need to re-interview the complainant depending on the information you receive from other sources. Give the complainant an estimate of how long the investigation is likely to take and when he or she can expect to hear from you again.

I. Consider whether any interim steps need to be taken during the investigation,

such as separating the complainant and the accused, or having another staff member monitor their interactions. Ask the complainant if he or she believes that interim protective steps are necessary.

J. Advise the complainant to return at once if another incident occurs.

III. Interviewing Witnesses

A. Do this promptly while recollections are fresh and before they can be influenced by other events.

B. If there is a victim, and the complainant is someone other than the victim, the

victim should be interviewed next. Explain that someone has expressed concern and refer to the incidents that the complainant described. The victim may



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confirm the complainant's version of events, explain the incident as something else, or deny the incident entirely.

C. As with the complainant, explain that you will be taking notes and that you will

be asking either for a written statement or a signature on a summary of your notes after the interview.

D. Explain what you are investigating and ask generally what the witness has

observed about the matter. If the general inquiries elicit information, obtain all the relevant information about each incident, as described in the section entitled “Interviewing the Complainant” above.

E. After the general questions, ask the witness specifically if he or she recalls the

incidents for which the complainant identified the person as a witness. Even if the person did not observe the incident itself, try to elicit other information about the surrounding circumstances, if the witness recalls. For example, if the witness does not recall a particular remark in the lunchroom last Wednesday, ask if the witness was in the lunchroom that day, whether she observed the accused speaking to, or near the complainant, whether the complainant looked upset after the accused passed, etc. These secondary observations may help you judge the credibility of the parties. For example, if the witness says the complainant was not in the lunchroom that day or that the accused never left his table during lunch, this may support the accused’s version of events. On the other hand, if the witness did not hear any remarks, but saw the complainant crying after the accused passed her, this would discredit a claim by the accused that he was not in the lunchroom that day.

F. Ask if the witness reported the incident to anyone or discussed it with anyone

else. If the answer is affirmative, ask to whom was the matter reported or with whom was it discussed, and what was their response or reaction.

G. Ask if the witness knows of others who may have seen or heard the incidents

and if the witness has any documents relating to the incident. H. Thank the witness for cooperating with the investigation. Explain that the

investigation will continue and ask the witness not to discuss the substance of the matter with others to avoid the possibility of tainting others' recollections. An admonition not to discuss the matter also protects the privacy of the complainant and the accused, especially since, until the investigation is completed, it is not possible to determine if there has in fact been any wrongdoing. Tell the witness if he or she knows of other witnesses or possible



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victims, you would like to know their names so that you can contact those individuals directly.

IV. Interviewing the Accused

A. If the investigation involves alleged employee misconduct and you believe the alleged misconduct could also expose the employee to criminal charges, you should consult with the district’s attorney before holding an investigatory meeting. A governmental employer is required to give Atwell warnings when interviewing employees concerning misconduct of a criminal nature. (See Special Considerations for Investigating Employee Misconduct – Atwell Rights, pg. 21)

B. Provide pre-meeting notification. Notify the accused, in writing, of the purpose of the meeting and the time, date, and location. Be as specific as possible concerning the purpose of the meeting.

C. Have a witness at the meeting. If possible, two management employees should

participate, one serving as a “neutral note taker.” D. Afford an employee the opportunity to have a union representative present at

the meeting. (See Special Considerations for Investigating Employee Misconduct – Weingarten Rights, pg. 21).

E. In preparation for this interview, review the notes of the previous interviews and

make sure you have a list of all of the incidents about which you wish to question the accused.

F. The timing of this interview will depend upon the nature of the allegations. In

some cases, you may wish to speak to the accused, at least for an initial interview, immediately after interviewing the complainant. Other times, it will be helpful to interview witnesses first and then to speak to the accused.

G. Begin by establishing the reason for the meeting. Be as specific as possible as to

why the meeting is being held. H. Inform the accused that you will be taking notes of the interview. Explain that

you will be asking for a written statement or a signature on your summary of the interview to verify that the information is accurately recorded.

I. Explain to the accused that he or she is the subject of a complaint and describe

the nature of the complaint. Tell the accused that this is considered a very



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serious matter and that his or her full cooperation in the investigation is required. Also advise the accused that this meeting is part of a fact-gathering process and that you simply wish to obtain the accused’s version of the incident(s) at issue. Do not express or imply your agreement with any accusations which have been made by any person.

J. Depending on the nature of the complaint, it may be necessary to identify the

complainant in order to allow the accused a full opportunity to defend against the charges.

K. Explain to the accused that, to the extent possible, you will attempt to keep the

investigation confidential to protect both the accused and the complainant. The accused should, however, be told that you may be speaking to other witnesses and that, if appropriate, you will report your findings to the governing body and/or top administrator for appropriate disciplinary action.

L. Review each incident and obtain the full details of each from the accused. M. If the accused denies the allegations, ask for any possible reason or motive the

complainant might have for making such claims. Elicit full details of any reasons, along with the names of others who may be able to support the information. If the accused admits the acts, but claims that they are taken out of context, ask for all facts and witnesses to support that contention.

N. Ask the accused if there are others he or she believes should be interviewed as

part of the investigation or if there are any documents relating to the matter. O. Advise the accused not to confront the complainant and to avoid retaliation of

any kind. Advise the accused that retaliation could lead to discipline, even if the underlying complaint is unfounded.

P. Describe the general procedure for the rest of the investigation. If you conclude

that further interviews or re-interviews are necessary, then inform the accused that you will be speaking to others and may need to re-interview him or her, depending on the information you receive from other sources. Give the accused an estimate of how long the investigation is likely to take and when he or she can expect to hear from you again.



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STEP 3: EVALUATING AND REPORTING THE EVIDENCE

I. Evaluating Information Collected Over the Course of an Investigation

A. Compare the statements from the complainant with the statements of other witnesses and the accused, and with the documents provided, if any, to determine support and inconsistencies.

B. Determine if the investigation has disclosed any pattern of conduct by either the

complaining witness or the accused that would tend to support the allegations, or on the other hand, support a finding that the allegations are not credible.

C. Follow up as necessary with the complainant, the accused, and the witnesses, to

attempt to resolve any inconsistencies and to obtain as much additional information as necessary to make a credibility determination if you do not have sufficient evidence otherwise to make a determination.

D. Continue to probe until the investigation is complete. However, do not expand

the scope of the investigation unnecessarily. Instruct witnesses not to discuss the matter with others. Do not disrupt the educational or work setting any more than necessary.

E. There will be occasions where no corroborating evidence can be found.

Misconduct frequently occurs in private and no witness will be able to substantiate the complainant’s accusations. This does not end the inquiry. It is not acceptable to terminate an investigation without concluding it simply because it involves weighing the word of one individual against another. The investigator must evaluate the information from the complainant and the accused, and make a reasoned judgment as to the parties’ credibility. Based on that judgment, the investigator will conclude whether or not the complainant’s version or the accused’s version is more credible, and therefore whether or not the incident occurred.

II. Reporting the Outcome of the Investigation

A. Depending on the severity of the accusation, a report of the investigation should be done in coordination with legal counsel and the written report should be limited in circulation.



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B. In preparing the report, the investigator should be aware that the report is likely to be subject to discovery in any litigation or administrative investigation that may follow. For this reason, the investigator should consult with legal counsel in preparing the report.

C. The report should be a clear, succinct summary of the information gathered in

the investigation. It should set forth each of the allegations, the response of the accused, the supporting facts obtained during the investigation, and the investigator's conclusions about each incident. It should also identify each of the individuals who were interviewed and, where necessary, summarize the testimony of each. The report should also contain a recommendation for corrective and disciplinary action, if appropriate.

D. As with other personnel matters, the investigation and the report should be

disclosed only to those who have a need to know the information. The governing body should not be involved in the investigation, and board members should not review the report unless and until the matter comes before the board officially.

E. The report should be acted upon as quickly as possible so that the investigation

does not become stale. F. The investigation file and all related documents should be retained and kept as

confidential as possible consistent with the requirements of any collective bargaining agreement or state personnel records law. The entire file should be provided to legal counsel in the event litigation occurs.



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STEP 4: CONCLUDING THE INVESTIGATION

A. In most cases, if the accused engaged in inappropriate conduct, then discipline

will be imposed. If the investigation involves employee misconduct, the district’s collective bargaining agreement, if any, and employee discipline policies should be followed. If the investigation involves student misconduct, the district’s student disciplinary policies, bullying policies and other applicable policies should be followed. All required statutory/ constitutional safeguards must be provided.

B. If it is determined that discipline should not be imposed, the record should

reflect the reasons why. The investigator or other appropriate administrator should meet with the accused and outline the corrective steps that will be taken. At the meeting, it is essential to emphasize the serious nature of the misconduct.

C. The district may also conclude that other forms of corrective action are

necessary, e.g. staff training, social work/counseling services. D. The investigator should meet with the accused and inform him or her that the

investigation has been completed and that the complaint was found to be either substantiated or unsubstantiated. The accused should be reminded again that retaliation is forbidden and will be treated as a serious breach, subjecting the accused to additional discipline. This should be communicated both verbally and in writing.

E. When the investigator concludes that no misconduct occurred or that there is

insufficient evidence to support the complaint, concluding action is still necessary. Too often, employers simply abandon the process after a report is written, thus leaving the parties in limbo.

F. The investigator should meet with the complainant to report the outcome. The

investigator should explain that a thorough investigation was conducted but that the complaint could not be substantiated.



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LEGAL CONSIDERATIONS FOR INVESTIGATING STUDENT MISCONDUCT

I. Student Bullying

A. Section 27-23.7 of the Illinois School Code

1. Prohibits bullying on the basis of actual or perceived race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental disability, military status, sexual orientation, gender-related identity or expression, unfavorable discharge from military service, association with a person or group with one or more of the aforementioned actual or perceived characteristics, or any other distinguishing characteristic.

2. Provides that no student shall be subjected to bullying:

a. During any school-sponsored education program or activity; b. While in school, on school property, on school buses or other

school vehicles, at designated school bus stops waiting for the school bus, or at school-sponsored or school-sanctioned events or activities; or

c. Through the transmission of information from a school computer,

a school computer network, or other similar electronic school equipment.

3. Defines “bullying” as any severe or pervasive physical or verbal act or

conduct, including communications made in writing or electronically, directed toward a student or students that has or can be reasonably predicted to have the effect of one or more of the following:

a. Placing the student or students in reasonable fear of harm to the

student's or students' person or property; b. Causing a substantially detrimental effect on the student's or

students' physical or mental health; c. Substantially interfering with the student's or students' academic



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performance; or d. Substantially interfering with the student's or students' ability to

participate in or benefit from the services, activities, or privileges provided by a school.

B. Recent Student Bullying Legislation

1. In summer, 2014, Illinois legislatures made several significant changes to the bullying prevention provisions of the School Code.

2. Public Act 98-0669 (eff. June 26, 2014) added stringent requirements for

school districts’ bullying policies. Under the amendment, a bullying policy must be consistent with school board policies and based on engagement of a range of stakeholders, including students and parents/guardians. In addition, a bullying policy must also include the following:

a. The School Code definition of bullying; b. A statement that bullying is contrary to State law and district

policy; c. Procedures for promptly reporting bullying, including, but not

limited to, providing contact information for the staff person responsible for receiving such reports and a procedure for anonymous reporting;

d. Procedures for promptly informing parents/guardians of all

students involved in the alleged incident of bullying and discussing, as appropriate, the availability to social work services, counseling, school psychological services, other interventions, and restorative measures;

e. Procedures for promptly investigating and addressing reports of

bullying, including the following:

i. Making all reasonable efforts to complete the investigation within 10 school days and considering additional relevant information received during the investigation;



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ii. Involving appropriate school support personnel with knowledge, experience, and training on bullying prevention in the investigative process;

iii. Notifying the principal or school administrator or his or her

designee of the report of bullying as soon as possible; and iv. Providing parents/guardians information about the

investigation and opportunity to meet with the principal or school administrator, or his or her designee, to discuss the investigation, the findings of the investigation, and the actions taken to address the reported incident of bullying.

f. The interventions that may be taken to address bullying, which

may include, but are not limited to, school social work services, restorative measures, social-emotional skill building, counseling, school psychological services, and community-based services;

g. A statement prohibiting reprisal or retaliation against any person

who reports an act of bullying and the consequences and appropriate remedial actions for the person who engages in reprisal of retaliation;

h. The consequences and appropriate remedial actions for a person

found to have falsely accused another of bullying as a means of retaliation or as a means of bullying; and

i. A policy evaluation process to assess outcomes and effectiveness.

2. The second major amendment to the bullying law, Public Act 98-0801 (eff. January 1, 2015), expands the definition of bullying to include “cyber-bullying.” The new law defines cyber-bullying as “bullying through the use of technology or any electronic communications,” including writing, images, and sounds.

In addition, the amendment gives schools jurisdiction over cyber-bullying conducted through off-campus computers or student-owned electronic devices if the bullying “causes substantial disruption to the educational process or orderly operation of the school,” and such bullying is reported to school personnel. It is important to note that this new law does not require school administrators to monitor off-campus, non-school-related



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online activities. Rather, the law simply empowers staff to investigate and address instances of cyber-bullying that occur outside of school after such bullying has been reported.

II. Access to Students’ Social Networking Accounts and Profiles

A. Illinois Right to Privacy in the School Setting Act, Public Act 98-0129 (eff. January 1, 2014)

1. Allows public (and recognized non-public) schools to request or require a student to provide his or her password to a social networking website if officials have “reasonable cause” to believe the student’s account contains evidence that the student violated a disciplinary rule or policy.

2. Requires schools to notify students and parents that passwords (or other related account information needed to gain access to a student’s account) may be requested or required by the school in such situations. Notice should be provided in the school’s rules, policies, handbook, or communicated by similar means.

B. Schools may NOT require students to turn over their passwords or other account information as a matter of course.

C. The District still needs to take into account the student’s Fourth Amendment rights. (See Constitutional Protection Against Unreasonable Searches and Seizures, pg. 23). Be careful when requesting or requiring a student to hand over social networking passwords or other account information.



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SPECIAL CONSIDERATIONS FOR INVESTIGATING EMPLOYEE MISCONDUCT

I. Weingarten

A. An employee has a right to union representation (or representation by a co-worker) during an investigatory meeting that the employee reasonably believes may lead to discipline.

B. The right arises only in situations where the employee actually requests

representation (unless the collective bargaining agreement places an affirmative obligation on the employer to advise the employee of such rights).

II. Atwell

A. When a governmental employer interviews an employee concerning misconduct of a criminal nature it is required to provide an “Atwell warning.” The government employer “has every right to investigate allegations of misconduct, including criminal misconduct by its employees, and even to force them to answer questions pertinent to the investigation, but if it does that it must give them immunity from criminal prosecution on the basis of their answers.” Atwell v. Lisle Park District, 286 F.3d 987 (7th Cir., 2002); Franklin v. City of Evanston, 384 F.3d 838 (7th Cir., 2004).

B. If you believe the alleged employee misconduct would also expose the employee

to criminal charges, consult with your attorney before holding an investigatory meeting.

III. Accessing Employees’ Social Networking Profiles

A. Governed by the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/1 et seq. B. Employers are prohibited from:

1. Demanding access to employees’ or applicants’ personal social networking profiles or accounts; or



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2. Requesting or requiring any employee or applicant to provide his/her password or other account information in order to gain access to an employee’s or applicant’s account or profile.

C. Employers are able to:

1. Monitor employees’ use of social networking sites or emails on equipment owned by the district; or

2. Obtain information that is available in the public domain.



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CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE

I. Fourth Amendment and General Overview

A. The Fourth Amendment – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

B. What is a Fourth Amendment search?

1. Whether a search is subject to the Fourth Amendment depends on two key factors: (1) whether the individual has a reasonable expectation of privacy in the area to be searched and (2) how intrusive the action taken is.

2. Because the individual’s legitimate privacy rights must be balanced

against the need of school officials to deal effectively with the threat of drugs and violence, the reasonableness for constitutional purposes of searches by school officials varies depending on the particular standard applied and on the circumstances of the particular case.

C. Standard for Searches by School Officials

1. A school district may legally conduct a search of a student or employee,

when that search is justified at its inception and reasonable in its scope. New Jersey v. T.L.O., 105 S.Ct. 733 (1985).

2. Justified at its inception

i. Reasonable suspicion – An employee or student’s conduct must

create a reasonable suspicion that a particular regulation or law has been violated and that the search will produce evidence of the violation. Willis v. Anderson Community School Corporation, 158 F.3d 415, 418 (7th Cir. 1998).

ii. Reasonable suspicion has been defined as “a sort of common

sense conclusion about human behavior upon which practical people . . . are entitled to rely, rather than an inchoate and unparticularized suspicion or hunch”. People v. Kline, 355



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Ill.App.3d 770 (3rd Dist. 2005). This determination is highly dependent upon the facts of a given situation.

3. Reasonable in scope

i. A search must be tailored to uncover evidence of the suspected

wrongdoing. It is not reasonable, for example, to demand that a student accused of stealing a basketball empty his or her pockets.

ii. To determine if a search is reasonable in scope the following

factors must be considered:

a. Student’s Age

b. Gravity of Suspected Offense

c. Context of the Search

II. School Officials May Generally Search the Following Without Reasonable Suspicion A. Items in Public View B. School Property

1. School property includes lockers, desks, parking lots and other district-owned spaces

2. Board policies should be clear that lockers, desks, and other district-

owned spaces remain under the control of the school district. This retention of control, properly communicated to students, reduces or eliminates any reasonable expectation of privacy in those spaces.

3. At a minimum, school officials may search all such areas when they have

reasonable grounds for suspecting that such a search will reveal evidence of illegal activity or a violation of school regulations.

C. Cars



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1. As with lockers, the School Code and Board policy may limit the expectation of privacy that individuals have in cars parked on school property.

2. School officials may search cars parked on school property when they

have reasonable grounds for suspecting that such a search will reveal evidence of illegal activity or a violation of school regulations.

III. Reasonable Suspicion Needed

A. Personal Effects

1. Searches of an individual’s personal effects, including purses, pockets, and backpacks, are subject to the restrictions of the Fourth Amendment. New Jersey v. T.L.O., 469 U.S. 325 (1985).

2. Therefore, a school official may search a student’s or employee’s

personal belongings when that search is justified at its inception and reasonable in its scope.

B. Cell Phones/Other PDAs (Electronic Devices)

1. A school official’s search of a student’s or employee’s cell phone or wireless communication device must be justified at its inception and reasonable in its scope and the District must have a reasonable basis to seize and search the wireless communication device.

2. Generally speaking, a school official may confiscate a student’s wireless

communication device if the student’s possession or use of that device is in violation of District policy. The official, however, may not subsequently search the contents of the device merely because it is now in his/her possession. Rather, the official must have a reasonable suspicion that the contents of the device contain evidence of student violation of school rules.



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SPECIAL CONSIDERATIONS FOR INVOLVING SCHOOL RESOURCE OFFICERS IN INVESTIGATIONS

I. What are School Resource Officers?

A. School Resource Officers (SROs) are, typically, sworn law enforcement officers assigned at an elementary, middle or high school. They work closely with school administration in an effort to create a safer environment for both students and staff.

B. Usually, SROs are employed by the local law enforcement agency and work with

the school district through an agreement with the law enforcement agency and the district.

C. SROs’ job responsibilities may include: (1) responding to and investigating

student misconduct; (2) investigating criminal activity that occurs on school grounds; (3) assisting with safety training for school personnel; (4) making presentations to classrooms regarding school/personal safety, established law, and youth-related issues; and (5) acting as a liaison between local law enforcement and the district.

II. Using SROs in Investigations

A. School district often have SROs investigate allegations of student misconduct and prepare the appropriate documentation.

B. School districts should have clear policies in place to outline the SROs’ role in

investigations (e.g., Who does the SRO report to? What is the SROs role in student discipline hearings?)

III. Student Records Concerns

A. Since the SRO is typically an employee of the local law enforcement agency, he/she may be responsible for documenting and reporting criminal activities to the local law enforcement.

B. The Illinois School Student Records Act, 105 ILCS 10/1 et seq., and the Family

Educational Rights and Privacy Act, 20 U.S.C. § 1232g, allow school districts to



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release certain student information to juvenile law enforcement authorities without parental consent. Likewise, the Illinois Juvenile Court Act, 705 ILCS 405/1-1, allows juvenile enforcement authorities to release certain juvenile records to school districts.

C. Section 10-20.14 of the Illinois School Code requires each school district’s parent-

teacher advisory committee to develop, with the school board and law enforcement, “policy guideline procedures to establish and maintain a reciprocal reporting system between the school district and local law enforcement agencies regarding criminal offenses committed by students.” 105 ILCS 5/10-20.14.

D. Check the district’s reciprocal reporting agreement to determine what

information/documentation may be shared with local law enforcement.

IV. Miranda

A. Generally, law enforcement officers are required to give Miranda warnings when an individual they are questioning is “in custody.” This obligation includes informing the individual that he/she has the right to remain silent, that anything he/she says can be used against him/her, and that he/she has a right to an attorney.

B. A person is in custody if, under the circumstances, a reasonable person would

not believe he/she is free to leave. C. The U.S. Supreme Court has held that students questioned at school by SROs

may be entitled to Miranda warnings. J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011). This ruling also may apply to school administrators who are acting at the direction of or on behalf of law enforcement.

D. SROs (and school officials acting at the direction of or on behalf of law

enforcement) should give students Miranda warnings before questioning them about alleged criminal activity.

E. Miranda warnings should be given in a way that students can understand, taking

into account their age.



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V. Fourth Amendment Considerations

A. As noted in the Constitutional Protections Against Unreasonable Searches and Seizures Section above, on Page 23, school officials only need reasonable suspicion that a regulation or law has been violated and that a search will produce evidence of the violation. Willis v. Anderson Community School Corporation, 158 F.3d 415, 418 (7th Cir. 1998).

B. Law enforcement officers, on the other hand, must usually meet a higher

probable cause standard before initiating a Fourth Amendment search. C. Lower federal district courts have found that a search done of a student by

school resource officers at the request of school officials is subject to the lesser reasonable cause standard. See Wilson ex rel. Adams v. Cahokia Sch. Dist. No. 187, 470 F. Supp. 2d 897, 910 (S.D. Ill. 2007). However, the Seventh Circuit Court of Appeals has not ruled on this issue.

D. Whether an SRO's search is subject to the probable cause or reasonable

suspicion standard could depend on a variety of factors (e.g., Is the police or the school directing the SRO to search? Is SRO conducting his/her search with other law enforcement officials?).



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INVESTIGATION CHECKLIST Pre-Investigation Tasks

Assign investigators Review district policies and applicable collective bargaining agreements Open file to keep all documents, witness statements and material collected from

investigation in a central location Notify district’s insurance carriers Arrange initial meeting with complainant Contact DCFS, if appropriate

Conducting Investigatory Interviews – Complainant and Witnesses

Have two investigators present, secure private room Meet with complainant, witness(es) and accused individually Obtain copies of documents from interviewees Explain the purpose of the meeting and procedure of the investigation Listen, don’t judge Ask open-ended questions Get as much detail as possible Remind the interviewee that the District will not tolerate any retaliation against

any witnesses Confidentiality issues Take notes and witness statements



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Do not allow tape recording Make note of demeanor and impressions

Interviewing the Accused

Criminal charges? Ask your attorney about Atwell Pre-meeting written notification If the investigation involves allegations of employee discipline, provide the

employee with union representation Establish reason for meeting, nature of the complaint, seriousness of the matter Remain impartial; do not express agreement with any accusations Confidentiality issues Go through each incident and ask the accused for a detailed response Take detailed notes (and if you can’t, ask someone else to do it) No retaliation, or possible discipline Discuss general investigatory procedures

Evaluating the Investigation

Compare statements from the complainant, witnesses and accused Complete follow-up interviews, if appropriate Questions – follow-up!



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Reporting the Outcome

Draft report with assistance from legal counsel Include recommendations for disciplinary action Limit circulation of report Facilitate action on report immediately Don’t destroy in case of future litigation

Concluding the Process

If discipline is appropriate, review collective bargaining agreement and/or discipline policies

If discipline is not appropriate, document reasons why Meet with complainant to communicate outcome Remind accused on retaliation prohibition, verbally and in writing

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