1 of 26

Spring Cleaning: Effectively Responding to Allegations Against Special Education Employees

Christian R. Shafer

crs@ratwiklaw.com

2022 Ratwik, Roszak & Maloney, P.A.

2 of 26

Investigations

3 of 26

Before the Investigation

4 of 26

Data Practices Considerations Part 1: Tennessen Warning

Legal Requirements:

(1) purpose and intended use of the requested data;
(2) whether the individual may refuse or is legally required to supply requested data;
(3) any known consequences arising out of supplying or refusing to provide the private or confidential data; and
(4) Identity of other persons or entities authorized to receive data

5 of 26

Tennessen Warning Best Practice Tips

Start of the interview
Put in writing
Sign the Tennessen Warning
Draft broadly

6 of 26

Data Practices Considerations Part 2: Garrity Warnings

Garrity v. New Jersey, 385 U.S. 493 (1967).
Language:

(1) direct the subject to answer accurately and truthfully under penalty of insubordination
(2) inform the subject that information will not be used in a criminal proceeding

Coordination of Law Enforcement

7 of 26

Scope of Investigation

1

Review complaint(s)

2

Interview complainant(s)

3

Interview fact witnesses

4

Interview alleged wrongdoer

8 of 26

Identifying Fact Witnesses

9 of 26

How to Conquer Common Interview Distractions

Taped interviews
Requests that a parent, friend, attorney, etc. be present
Union representative repeatedly interjects
Refusal to answer
Requesting names of other interview subjects
Asking about discipline
Request for written list of questions

10 of 26

Interview Basics

Purpose of Interview

Define Your Role

Explain the Process

Do Not Promise Confidentiality

Ask Specific Questions (Journalism Questions)

Ask the Tough Questions

Ask for Documents

Ask to Identify Other Witnesses

Do Not Guarantee Results

Ask Short, Open-Ended Questions

Assume You Must Defend Interview in Court

Observe Demeanor

Follow Up

Use Visual Representation

Disclose as Little as Possible

Recommend Do Not Discuss

Appear Neutral

Label Impressions as Told

No Reprisal

Thank the Witness

11 of 26

Interviewing the Alleged Wrongdoer

Union Representation. N.L.R.B. v. Weingarten, 95 S.Ct. 959 (1975).
Opening Remarks
Addressing Refusals to Answer
Follow-Up Questions
Closing Remarks

12 of 26

Employee Discipline

13 of 26

Reasons for Discipline

Absenteeism
Performance related to drugs and/or alcohol
Failure to perform duties
Sexual harassment or violence
Negative communication
Disruption
Failure to follow the rules

14 of 26

Determining Appropriate Discipline

Collective Bargaining Agreements

At-Will Employees

What is “just cause”?

15 of 26

Progressive Discipline

Written warning
Letters of reprimand
Withholding salary increments
Suspension without pay
Demotion
Discharge

16 of 26

Substantive and Procedural �Due Process

17 of 26

Implementing Effective Discipline

18 of 26

Imposing Discipline

Who imposes discipline?
Planned, calm, and respectful manner
Consult with Department head
Impose discipline privately
Document disciplinary action

19 of 26

Discharge of Employees

Special Issues
Procedural Due Process
Loudermill Hearing
Post-Termination Hearing Rights

20 of 26

Teacher Misconduct

21 of 26

Process for Disciplining a Teacher

22 of 26

Immediate Discharge

Statutory grounds under Minn. Stat. § 122A.40, subd. 13:

Immoral conduct, insubordination, or conviction of a felony
Conduct which requires immediate removal
Failure without justifiable cause to teach without written approval
Gross inefficiency with failure to correct after notice
Willful neglect of duty
Continuing physical or mental disability

23 of 26

Basics of Written Notices of Deficiency

Statement of Purpose
Statement of Statutory Grounds for Termination
Statement of Deficiences
Directives
Consequences of Failure
Burden of Seeking Clarification
Meet with the teacher

24 of 26

Termination of a Non-Probationary Continuing Contract Teacher

25 of 26

Questions?

26 of 26

Thank you!��Christian Shafer�crs@ratwiklaw.com