By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

Dear Legal Mailbag:

As the principal of a large middle school, I pride myself in running a tight ship. I want my teachers on time where they are assigned. I want my custodians to keep the building spic and span. I want my parents to keep out of my hair, and above all else, I don’t want to be surprised. Ever.

Given my admittedly inflexible personality, I was disappointed that one of my teachers did in fact surprise me, big time. The other day I received a call out of the blue from DCF asking to schedule some meetings as part of an investigation. Apparently, one of my teachers decided all on her own that the way a paraprofessional was treating a special needs child was child abuse. Given that she teaches math, I really don’t see how she is qualified to make that determination, and I was miffed that she would not consult with me before opening up this Pandora’s box.

I sent her an email, directing her to schedule a meeting with me. I plan to convey my disappointment and to tell her that she should talk with me first before filing a DCF report, but I don’t plan to impose any formal discipline. Nonetheless, she wrote back and asked if she can bring a union representative. That’s the last thing that I want. Can I tell her no?

Thank you,
Stiff Spine
 

Dear Stiff:

You are asking the wrong question. The question you should be asking is why on earth would you want to give this teacher any grief for filing a DCF report. She is a mandated reporter, and if she saw something that caused her to suspect abuse, she is obligated to report that concern to DCF.

Legal Mailbag is particularly concerned about two things you wrote. First, the last thing you want to do is convey the message that teachers or any other mandated reporters at your school must check in with you before filing a DCF report. Conn. Gen. Stat. § 17a-101a(a)(2) provides: “(2) Any person who intentionally and unreasonably interferes with or prevents the making of a report pursuant to this section, or attempts or conspires to do so, shall be guilty of a class D felony.” Moreover, Conn. Gen. Stat. § 17a-101e(a) provides in relevant part: “(a) No employer shall (1) discharge, or in any manner discriminate or retaliate against, any employee who in good faith makes a [DCF] report . . . or (2) hinder or prevent, or attempt to hinder or prevent, any employee from making a [DCF] report . . . .” I understand that you just want to be in the know, but you certainly don’t want to have to explain to DCF or the police why you think it appropriate to have an “expectation” that your subordinates report to you before filing a DCF report.

Second, your concern that the teacher may not be qualified to make such a report betrays ignorance of the DCF reporting process. The standard is that a report must be filed whenever:

[a]ny mandated reporter, as described in section 17a-101, who in the ordinary course of such person’s employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (A) has been abused or neglected, as described in section 46b-120, (B) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (C) is placed at imminent risk of serious harm, or (2) any school employee, as defined in section 53a-65, who in the ordinary course of such person’s employment or profession has reasonable cause to suspect or believe that any person who is being educated by the Technical Education and Career System or a local or regional board of education, other than as part of an adult education program, is a victim under the provisions of section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, and the perpetrator is a school employee (emphasis added).

Conn. Gen. Stat. § 17a-101a(a).

The standard for reporting suspected abuse, neglect, imminent risk or sexual victimization by a school employee is simply that the mandated reporter has “reasonable cause to suspect or believe” that such misconduct may have occurred. In Section 17a-101a(d), the General Assembly elaborated on the standard as follows: “a mandated reporter’s suspicion or belief may be based on factors including, but not limited to, observations, allegations, facts or statements by a child, victim, . . . or third party. Such suspicion or belief does not require certainty or probable cause.” The mandated reporter thus has no duty to reach a conclusion before reporting (and indeed should not even investigate). Likewise, you have no right to question whether a mandated reporter is qualified to make a report. The determination of whether specific facts constitute abuse, neglect or victimization is solely for DCF to make.

To be sure, there are special rules regarding school employees. First, Conn. Gen. Stat. § 17a-101(c) provides that school employees filing a report of suspected abuse or neglect “shall also submit a copy of the written report to the person in charge of such institution, school or facility or the person’s designee,” i.e., you. Second, when abuse by a school employee is alleged, the school district must immediately notify the parents of the potential victim that a report was filed. Conn. Gen. Stat. § 17a-101b(d). While DCF has a duty to notify your or the superintendent of the report in such cases, you could have more quickly notified the superintendent of the report and the concomitant duty to notify the parents had the teacher filed the report with you. You can and should remind the teacher of that requirement.

Finally, Legal Mailbag can answer the question that you did ask. If you have concern about an employee’s conduct and want to review that concern in an interview with the employee, the employee has the right to union representation. You do not have to notify an employee of the right to union representation in such circumstances, but if an employee asks for union representation, the standard is whether the employee reasonably fears for his or her job security. Since your intent (misguided though it was) was to give a verbal warning to the employee (the first step in progressive discipline), the employee had the right to have union representation at the meeting. Who knows? Perhaps the union representative would have straightened you out on DCF reporting procedures.