Don’t step on my toes: Boundary Investigations
Allen Clendaniel of Sedor Wendlandt Evans & Filippi
Allen Clendaniel delved into the mechanics of how a child sexual abuse investigation should be conducted, and who conducts it. Once a boundary incident is suspected, the following steps should be taken:
- Report it to law enforcement and OCS.
- Notify the district’s insurance carrier.
- Place the suspect on administrative leave with pay.
Mr. Clendaniel said that administrative leave is oftentimes the cheapest insurance a school district can buy. The suspect is removed from the school and from further contact with students. You may wonder why the district should continue to pay this bad actor? It is because you don’t know all the facts until the investigation is completed, so you are minimizing potential liability. This action also provides time to figure out the facts without having to make a decision that could have significant legal ramifications for the district.
Once the investigation is underway, the timeline is out of your control, so the employee could be on leave for a long time. Police investigators are not concerned with district employment issues and have no obligation to share details of the investigation with the district. The facts should drive the investigation, and no cases are the same.
The victim will be the key witness and may deny there was a relationship, which makes it hard to win a trial or arbitration. If the law enforcement investigators don’t think they can prove their case in court beyond a reasonable doubt, they may drop the case.
If police do not file charges, but you still think the employee is guilty, what do you do then? Should the suspect be allowed to return to school when suspected of a sexual abuse crime?
Districts may need to conduct their own investigation, because they have an obligation to protect students from harm by determining if a “groomer” must be removed, and to protect the district from legal liability. If the suspect is found to be innocent, a formal investigation can serve to absolve them of wrongdoing.
The district Administrator or a hired independent investigator should conduct the investigation in consultation with the district’s law firm. This approach allows the district to maintain attorney/client privilege and work document privilege, and provides confidentiality for the district, since the police cannot subpoena your findings.
The district investigation should include putting the employee on administrative leave, shutting off access to their computer, and checking it for evidence of the crime (ie emails and files). Conduct investigatory conferences with the alleged perpetrator and record all interviews so there is a complete record. It is very important to document every step. If the district terminates the alleged perpetrator, and they sue to challenge the termination, the investigation itself will be put on trial.
If you have information that may be helpful to law enforcement, you should share it. Multiple investigators can and should share information.
Allen Clendaniel Slides
The information provided by presenters during the 2020 AASB Law & Policy Day, and included here, is for educational purposes only and does not constitute legal advice. If related legal advice is desired, please contact your attorney.