CHILD ABUSE AND NEGLECT

COMMENTS ON PROPOSED POLICIES

AND PROTOCOLS

submitted to
Montgomery County Public School
System
by
Ellen Mugmon
June 8, 2015

Introduction

I am pleased to be able to provide comments on the proposed child abuse policy. I have
taken the liberty to comment as well on the protocols and other related documents. Indeed It
was particularly imperative that I comment on the protocols because most of the provisions in
the protocols should actually be in the policy. I understand that the Board of Education only
votes to approve or disapprove the policy. This allowed the Department to submit a mostly
vague, aspirational child abuse policy with the vast majority of problematic, substantive
provisions added in the draft protocols. Even so, the draft policy is not without its own
significant problems. In any case, the misplaced provisions are particularly troubling.
Handling policy development this way permits staff to change the protocols, which are, in
essence, the policy, whenever they wish without proper oversight. This arrangement lacks
integrity.
While there are a few improvements over 1989 policy and protocols, I have found these
proposed documents to have serious flaws apparently as a result of the Department and the
unions basically writing their own rules, since ignoring current laws and regulations, court
decisions, and Attorney General opinions etc. was standard operating procedure when
educators and other employees were the alleged abusers. In particular, the 1991 Attorney
General's opinion was specifically promulgated to stop egregious practices that covered up
abuse in the Howard County Public schools that MCPS and MCEA, to this day, 24 years later,
still appears to want to retain by drafting loopholes in the proposed policy and protocols.
As a Board member, I would be reluctant to be on record approving documents that do not
comply with the law. Moreover, it has been my experience that child abuse policies and
protocols cannot be evaluated adequately without analyzing other relevant policies, protocols,
letters, forms, union contracts, and yet to be drafted relevant documents. An inability to
analyze and subsequently conform these documents can only result in inconsistencies, a lack
of cross references, and contradictory provisions that would most likely lead to continued
violations of the law and the continued questionable practices which have unnecessarily and
seriously harmed Montgomery County students for so many years.
I am, therefore, requesting that the Board wait to approve this policy until certain sections in
the protocols are amended and placed appropriately in the draft policy and until other policies
and attendant regulations and documents are written and reviewed by the public. This
includes the the Employee Conduct Policy (It is certainly unusual for a school systems to have
operated so long without this necessary policy.), the Memorandum of Understanding,
"additional protocols to facilitate prompt notification of the Special Victims Investigations
Division Of the MCPD" (See section B(a) of the policy) as well as other policies such as the
Sexual Harassment policy which needs to be revised to be in conformity with the Child Abuse
and Neglect policy. Unless this preliminary work is done, the Board would be evaluating and
voting on this critical policy in a vacuum. Moreover, I would recommend that both the policy
and protocols be subject to Board approval.

I am a longstanding

child advocate in Maryland and an expert on child abuse and neglect

laws and public policy as well as criminal history background checks for those who have
access to children. Presently I am a member of Criminal Justice Information Advisory Board.
I, however, am not speaking for this body.
highlighting my experience.

I have attached a list of relevant activities

I would add that I have participated in drafting legislation and regulations and school system
policies and proffered both oral and written testimony for thirty years before various
committees in the General Assembly.

I have also testified before the State Board of

Education, The Howard County Council, the Howard County Board of Education both orally
and in writing. This is the first instance where I have encountered a process which precludes
oral testimony.
Given the importance of the subject and the scandals surroundings

this school system's

handling of child abuse cases, I was astonished and concerned that the Board did not deem
the Child Abuse Policy, which had not been revised since 1989, significant enough to
schedule a public hearing. Public hearings allow the citizens, beyond the Board, school
officials, the MCEA, and workgroup participants to proffer critical information based on their
expertise and also respond to what other entities or individuals contend during oral testimony.
(Please note that some members of the workgroup complained that they were left out of a
subset of individuals who directly drafted the policy and protocols.)
I am therefore requesting that the Board reconsider its decision that this policy and its
protocols are not "of widespread interest and concern" (See the MCPS website.) to justify a
public hearing. That is astounding. The Board has an obligation to postpone the date
scheduled for the Board to vote because the policy is premature and rushed. Moreover, after
June 8, 2015, the public should be able to review and testify about Mr. Civin's changes in the
policy and protocols, if any, before the Board takes final action.
I have been a member of the last two committees formed by the Howard County Department
of Education for the purpose of updating its child abuse and neglect policy, regulations, the
Memorandum of Understanding. In my experience, HCPS process was a model of
transparency and cooperation in comparison to the approach employed by MCPS.
In 1998, as an aside, I was appointed to a joint MSDE and OHR lnteragency Task Force on
Community Collaborations to Protect Children. Interestingly, during one of the Task Force
meetings, Montgomery County educators touted the MCPS child abuse liaison program which
apparently was subsequently

discontinued without an evaluation.

When I briefly spoke with

Mr. Zuckerman, he was unaware of it. Yet he claimed that this program idea was a recent
innovation. This gives me pause. Without historical knowledge, the same mistakes could be
made over again.

"That is why an independent investigation is vital to understand why and how the abuse
continued for so long. If we understand -- if other schools understand -- no one needs to be
at the mercy of silence. When reputation trumps child safety, the silence of authorities
enables abusers to continue as each report gets buried .... It is up to institutions rather than
the victims to speak openly .... Who Knew What When?" Yet no one in leadership in the
MCPS has commissioned an independent investigation. "The longer the [Board members and
top officials] resist this, the more they communicate

that they do not want to know the full truth

about the scale of the abuse or the cover-up perpetrated in [MCPS]." (Members of the
Survivors Group, in Making Schools Safe, a report on the Horace Mann School, May, 2015.)

My apprehension about the adequacy of the child abuse policy, protocols, the MCEA contract
and other related documents was further triggered by the Department's recommendation to
the Board to support HB 1033, "Public and Nonpublic Schools - Sexual and Physical Abuse
Notifications and Prevention", introduced last session by Delegate Luedtke, a member of the
MCEA Board of Directors. According to its analysis, MCPS staff stated that "[t]his bill aligns
with the recommendations for systemic enhancements to MCPS child abuse reporting policies
and protocols." The Board agreed and supported the bill. Its decision, based on a
problematic review by staff, is alarming because the bill, in reality, contravened Maryland's
reporting law and two Attorney General's opinions. If it had passed, it would have
exacerbated the longstanding, inexcusable mishandling of child abuse cases by MCPS. (I
would be happy to provide the Board with my testimony in opposition to this legislation which
included a copy of 76 Opinions of the Attorney General (1991) [Opinion No. 91-056
(December 17, 1991 )].
Hence, it has increasingly become clear that staff, MCEA, and the System's consultant,
Praesidium, are not aware of relevant Maryland Attorney General opinions, case law, child
abuse laws, as well as the Criminal History Records Check law etc. Ignorance, whether
studied or not, substantially contributed to the MCPS scandals. With all due respect, the
Board itself needs to ask questions about the advice it is given by staff. Staff members are
not necessarily experts in this area of the law and others recommending certain actions have
self-serving agendas.
But, most critical to child safety, the moral imperative to protect children appears to be
missing as evidenced in previous actions and documents promulgated by the school system.
For example, the Board initially supported the seven year gap in age in the 2014 "position of
authority bill," which included a deplorable exemption for sex between a student and an
educator off-campus off-time. If it had been enacted, it would have continued to be legal for
25 year-old teacher to molest a 15 year- old student off campus- off time. The Board's support
for this exemption was in response to a request from a state senator. On the tape of the
discussion regarding this legislation, Board members admitted that they did not understand
the bill, but voted to support it anyway. Every action and decisions made by members of the
Board and staff must be viewed in light of the duty to prevent unconscionable betrayals of
trust of students.

Secret files
The School System's version of the Boy Scout's scandalous "secret perversion files" criticized
nationally, and a major subject in lawsuits against the Boy Scouts across the country, is not
an acceptable substitute for abiding by the child abuse and neglect reporting laws in the first
place. See "Top executives did not report suspected Scout abuse cases, files show" J. Felch,

Los Angeles Times, December 12, 2012)

The existence of a confidential file documenting inappropriate/suspicious behaviors, better
defined as sexual abuse or exploitation of students, is established in the contract between
MCEA, other unions and MCPS. It is in the draft protocols, and already implemented by
Form 460-19, entitled, "Reporting of Suspicious/Inappropriate Interaction with a Student"
dated July 2014. This inappropriate conduct is defined as "physical contact of a questionable
nature (sitting on lap, back rub,etc.) social communication unrelated to classroom activity
(texting, personal phone calls, etc.) excessive time with a student out of the class, or being
alone with the student under suspicious circumstances (room locked and/or dark, in personal
vehicle without parent's permission,etc.) Information contained in this report is
confidential and is kept in a restricted database in the Office of Human Resources and
Development." (Emphasis is that of the MCPS.) (See Anderson v. State, for example,
decided by the Court of Appeals in 2002 in which a teacher was convicted of child abuse in
his home after he gave a 14-year-old victim a ride after school.
After Joseph Pineda's sentencing hearing, the media reported that at least two schools had
developed "Do Not Use" files, although they sometimes did not check them. Nevertheless,
the idea of "Do Not Use" files must have been considered to be such a good idea that it
needed to be replicated county-wide.
The secret file provisions in the protocol and Form 460-19 exist in violation of the child abuse
reporting law, case law and certain opinions of the Attorney General (A.G.). For example, the
A.G. held that "reason to believe" is synonymous with "suspects" child abuse and neglect, not
a higher level of proof such as witnessing child abuse and neglect or confession of the
perpetrator. Consequently, sections of the proposed protocols dated April 25, 2015 and
provisions in the employee contracts establishing the file and directing how this file is
supposed to work must be removed-. In addition, form 460-19 needs to be withdrawn as well.-g
It is not the job of MCPS to determine if a child abuse report turns out to be valid or
prosecutable. Rather, it is MCPS' obligation under the law, to report suspected abuse and
neglect and leave it up to the Police, States' Attorney and DSS to investigate. This means that
the duty to report cannot be avoided through the mechanism of a secret report in a secret file,
where each incident is supposed to be treated separately in determining whether or not a
report is required.
In the recent case of Daniel Picca v. Montgomery County Board of Education, the State Board
of Education stated:

"In affirming the decision to terminate this employee, we must emphasize our expectation of
school systems. The events chronicled in this case are shocking, not only because they
occurred, but they occurred over and over again for seventeen years. When confronted with
such obvious inappropriate behaviors on the part of a teacher toward his students, it is our
expectation and, we believe, the expectation of the school community, that the teacher will be
removed from contact with students with alacrity.
Recent child sex abuse cases have shown a bright light in that dark corner. We think that this
case can shine a light on abusive conduct.. .of school staff toward children." That light,

however, does not yet shine in MCPS as evidenced by the MCEA contract, proposed
protocols and operating procedures outlined in Form 460-19 mentioned above.
Unfortunately, MCPS and MCEA appear to believe it is appropriate to negotiate
Maryland's reporting law, an item which should be considered non-negotiable. Former
Superintendent Starr even declared this change in the contract as a step forward. In his
January 13, 2015 memorandum to the Board of Education, he announced that "the Office of
Human Resources and Development has developed a process to improve tracking of
allegations of inappropropriate interactions between employees and students. This process
was developed in consultation with our employee associations, and is referenced in all three
of their contracts .... "
Substituting a secret file of suspicious/inappropriate interactions with students for the duty to
report suspected child sexual abuse and exploitation, as well as giving the alleged offender a
bye for the first offense is repugnant. (Keeping centralized files of individuals where reports
have already been made after each incident, and the police, DSS, and State's Attorney
declined to pursue further action might be another matter only if there is independent
oversight.)
Indeed, the recent appointment of the school system's head of its Department of Association
Relations, Stan Damus, to the Child Abuse and Neglect Committee, a person whose job is to
collaborate and negotiate contracts with MCEA and the other unions, is troubling. It indicates
that the underlying intent of proposed changes is to cater to MCEA first and foremost, which
will result in the continuation of the same shocking procedures under a different guise.
But the secret file, especially the one in the MCEA contract, is even more alarming
because it makes it more likely that the handling of individual cases, which should
have been reported, in the first, second, or third place, will instead be inappropriately
subjected to internal investigations prior to reporting or failure to report at all as a
result of MCEA negotiations with Mr. Damus in his capacity as a member of the
Committee. Children, of course, have no similar representation to protect them and their
interests. Therefore, I do not agree with John Mccarthy's overly optimistic statement at the
sentencing of Jose Pineda that: "The school system is cooperating with me now. I think they

recognize that a lot of what they did was indefensible." If so, that understanding would have
been be reflected in the policy and protocols and other issues discussed in this paper.
Apparently, MCPS officials are unaware of, or believe it is their prerogative, to ignore
Maryland Court of Appeals decision in 2013, Karl Marshall Walker Jr. v. State of
Maryland. According to the Court: "Child sexual abuse can be committed as part of a
single act or a series of actions and it is not necessary that the defendant physically
touch the child in order to commit the crime." The Court further discussed the nature of
child sexual abuse which includes child exploitation and the expansiveness of the behaviors
that should be reported so that children can be protected. "The General Assembly's concern
for the welfare of children, and the myriad of ways in which abusers can sexually exploit
minors, militates against unduly narrowing the scope of a statute that is reasonably worded so
as to reach a wide swath of behaviors, including those where a minor is sexually exploited but
not physically harmed."
Accordingly, on May 12, 2015, Lawrence Joynes plead guilty to sexually abusing girls in the
Montgomery County Schools. (Note: This case was not reported to authorities by MCPS.)
Joynes' attorney said "that Joynes did not physically molest the 14 students at New
Hampshire Estates. She said in court that he pleaded guilty under the 'exploitation' provision
of the law." See the following article, " Ex-Teacher Pleads Guilty To Sexually Abusing Girls"
dated May 12, 2015 in The Washington Post. Apparently, school officials and union
leaders are still acting under the pretext that child exploitation is not part of the
definition of child sexual abuse and is not reportable per the 2013 Court of Appeals
decision. See also comments above concerning Form 460-19.
Thus, the claim that the first incident, as well as an unknown number of other incidents may
not "independently" cause school officials to have a "reason to believe" that a report needs to
be made to external agencies is dismaying. Waiting for more complaints to come to light
in order to create a pattern of "inappropriate conduct" means that students must
repeatedly be subject to trauma, embarrassment and bullying until sexual abuse is
deemed to have occurred by school officials and therefore reportable. However, in
another document, there is a caution mentioned above that individual actions should be
evaluated separately. These kind of ideas comes to the fore in an institution whose culture is
centered first on the institution, the employees second, and children third.
See Section 3(d)(vi) of the April 15 draft of the protocols. This section is problematic and
should be deleted~ because the Employee Code of Conduct Policy to which it refers, and the
Memorandum of Understanding, mentioned above, has not yet been drafted, and the criteria
for the secret file is based on an incorrect assumption, that MCPS' interpretation of the
definition child sexual abuse is controlling as opposed to that of Maryland's highest court. In
addition, the public is not able at this time to see the Memorandum of Understanding and
comment upon it as I was allowed to do when I reviewed the policy and its attendant
regulations in Howard County. This provision exemplifies how to set up an insufficient public

the Board should not take action on the policy because

it, along with the public, will not have all the interrelated documents.

review process.

Consequently,

Moreover, Dr. Starr's claim that current MCPS standards for handling these cases somehow
"promote[s] a safe and secure environment in our schools and workplaces" as reflected in the
protocols is unsupportable. See the January 13, memorandum to the Board mentioned above.
According to Robert Shoop, a nationally recognized risk management expert on sexual
exploitation in schools, the seriousness of students being sexually exploited by trusted
professionals is not fully grasped by educators. 'The language frequently used to
describe this behavior - 'boundary problems,' 'poor judgement,' or 'inappropriate
behavior' trivializes abuse and minimizes the professional violation. "
Thus, the proposed policy, protocols, contracts, and other documents outlining procedures
for placing individuals in this or other confidential files actually encourage untrained school
officials with no expertise in child sexual abuse and exploitation investigations, along with
union officials, with an obvious conflict of interest, to inappropriately screen out reports of
sexual abuse and exploitation predicated on a mistakenly narrow operating definition of these
crimes.
In a flow sheet dated November 17, 2014, entitled, "Process for Addressing Allegations of
Inappropriate Interactions between Adults and Student", the principal receives information
about inappropriate interactions from a staff member. The principal then screens this report
and "initiates fact finding to determine if child abuse is suspected." The principal contacts
OSSI and the PECU in the OHRD with initial findings." If the principal thinks that the incident
is child abuse after investigating, then the staff member who originally suspected child abuse
or neglect is told to report to CPS (as though they were reporting without an intervening
internal investigation), and the principal reports to the police if sexual abuse is suspected. The
staff member is not in the picture if the issue is suspected sexual abuse. The principal must
first conduct an internal investigation to determine if there was "reason to believe" to report.
This contradicts certain statements in the policy and protocols, but there are a number
vestiges of these illegal procedures which create loopholes that compromise the new
language and consequently jeopardize the CPS and Police Investigations to come after.
This course of action only serves, in my view, to protect the short term reputation and
interests of the school system as well as the interests of powerful unions and their most
problematic members who give the honorable teaching profession a bad name. This is a
recipe for more scandals and more unwarranted trauma and other harms to children.

Violating 76 Opinions of the Attorney General

(1991) [Opinion No. 91-056
(December 17, 1991) in both the proposed policy and protocols. The crucial
distinction between "consultation" and "consent."

Prior to the opinion cited above, school systems automatically performed extensive internal
investigations before reporting cases or prior to the police or social services arriving on the
scene where staff were involved. CPS and the police would complain that by the time they
were called or even arrived at the school, their cases were severely jeopardized because,
among other problems, alleged offenders destroyed evidence and parents refused to have
their children participate in another investigation.
School officials believed that they had the right to control all aspects of child abuse
investigations

of educators and other employees just like they do in other types of

investigations on school grounds. In Howard County, the Associate Superintendent

interviewed the alleged abusers first, a poor investigative technique, and then the alleged
victims and witnesses. Alleged offenders were then asked to sign written statements and the
alleged victims and witnesses also had to sign statements prior to reporting or quashing
reports.

Sometimes students were interviewed in the presence of the alleged offender, which

intimidated them.
Alleged offenders were almost always notified by colleagues and union representatives that
they would be subject to an investigation before it began. The HCPS (Howard County Public
School System) had drafted a written policy and memorandum

of understanding

codifying its

procedures in these documents until the Attorney General deemed that the way HCPS was
handling these cases violated the law.
It is my understanding

(see above) that MCPS officials are conducting themselves as did

Howard County officials prior to 1991. MCPS was unaware of this crucial Attorney
General's opinion until recently when a child advocate shared it with certain members
of the child abuse workgroup. This lack of critical knowledge lasting 24 years, and the
resultant entrenched support for the status quo, in my view, is a major cause of MCPS'
longstanding mishandling of sexual abuse and sexual exploitation cases to the detriment of its
students. Knowledge of this opinion has yet to overcome prior bad practices.

It explains why MCPS has drafted proposed provisions in the policy and protocols that
circumvent the requirement that no internal investigation should begin until DSS and
the Police have consented. In Section 8(2), the policy states that "no MCPS internal
investigation may proceed without "consultation" with "County partner agencies." That is not
what the Attorney General stated. Accordingly, "consent" must be substituted for
"consultation+ and "police or social services" substituted for "County partner agencies.".. Only
those two agencies have the authority to decide when MCPS can pursue its investigation
In the draft protocols, section lll(B)(3(d)(4)(i) similarly states that "MCPS internal
investigations may proceed only after 'consultation' with the County MDT participating
agencies and in accordance with the memorandum of understanding." Here also another
amendment is required. "Consultation" must be deleted and "consent" substituted and
"police or social services" substituted for "County MDT participating agencies".2 In section

lll(B)(3)(c)(iv), the protocols state that "MCPS employees shall not discuss the allegations
with the alleged offender, without prior 'consultation' with the County MDT, in order to avoid
compromising the integrity of the pending investigations by external agencies." Again,
"consultation" must be deleted and "permission" substituted and "police and social services"
must be substituted for "County MDT".l In section lll(A)(3), the protocols state that" [t]o the
extent that some preliminary inquiry must be taken .... that inquiry or action should be pursued
in consultation with the County MDT." Thus again "in consultation with" must be deleted and
substituted by "with permission of the police or social services"..
Consultation

merely means an exchange of views. This word choice is a pretense which

ultimately allows school officials to begin an investigation whenever they choose. There is no
requirement to accede to the judgement of the police or DSS.
In further support of my recommended

amendments,

the Attorney General clearly states: "The

school system should not interview the victim of the alleged abuse, the alleged abuser, or any
potential witness without prior "consent" of the local DSS or the police" not the MDT.

Loophole after loophole is inserted in both the policy and protocols to circumvent the
Attorney General's opinion in order to have the Board ratify longstanding illegal
practices which have engendered cover-up after cover-up. In another example, the
employee may ask limited follow up questions not listed in the MSDE model policy. See
below.
I also find section ll(B)(2)(b) in the protocols problematic for the same reasons. It states that
"once an oral report is made to CPS, neither the principal or any other employees shall
conduct FURTHER internal investigations." 9 It implies that internal investigations conducted
prior to reporting for the purpose of determining whether there is "reason to believe" a report
should be made, is a procedure that is supposed to continue. This provision most certainly
refers back to the flow sheet mentioned above where internal investigations were always a
part of the MCPS reporting process. This provision along with others is inconsistent with the
reporting law and the Attorney General's opinion and other sections of the policy and
protocols which requires an immediate report and consent from authorities to speak with
those involved. It is increasingly clear that MCPS language discussed above is designed as a
subterfuge by stating two contradictory courses of action which serve to create loopholes that
make it possible that internal investigations will continue to occur. Biased investigations
prior to reporting are not the standard in the law for reporting. Their use compromises
the health and safety of children. Thus, this section must be deletedll.to forestall any
mistaken, confused beliefs that such investigations can continue.
The suggested limited questioning prior to reporting in Section ll(B)(e) of the protocols is
problematic. Asking for the name and description of the alleged perpetrator as well as the
extent of the child's injuries and where the abuse took place is crossing the line into
investigative questioning, especially regarding cases where the alleged perpetrator is an
employee. If the child gives the name of the alleged perpetrator prior to the report being

made, this information can get back to the alleged perpetrator before the police or CPS can
prevent a loss of evidence. Section ll(B)(1)(e) should be amended to suggest an open ended
question such as: What happened to you? Staff who any answers to this question should be
directed only to share this information with authorities. (This following question, not the others,
is recommended

in the MSDE model policy.)1Q

In another problematic provision, section ll(B)(2)(f) in the protocols states that the MCPS
employer, contractor, or volunteer making the oral report will immediately update his/her
principal or direct supervisor, "as appropriate" regarding any further consultation with or
information received from CPS the MCPD, or any other agency participating in the County
MDT.11 Receiving confidential information does not confer the right to disseminate it under

law. Thus, this blanket directive is mandated in the protocols. However, this policy
demonstrates no concern for the child's confidentiality, or the possibility that the information
could be shared with the perpetrator or union representative, to the detriment of the
investigation. In addition, there is no definition of the key-words, "as appropriate". Thus, this
section must be deleted.11 (See discussion below outlining further concerns.)
Violations of student privacy through the re-dissemination of information in DSS
records to any number of MCPS employees through the mechanism of a
multi-disciplinary team meeting in violation of Section 1-202 of the Human Service
Article.
The widespread dissemination of information concerning the alleged victim called for in the
protocols is grossly insensitive and traumatic.12 I am sure that parents of alleged victims
would be appalled to learn that when one or more MCPS Child Abuse Contacts learn of the
child's confidential information through the MDT, it can then be shared with the MCPS Child
Abuse Coordinating Team which includes (See section 1(0) of the protocols) "the MCPS
System-wide Child Abuse Contact(s) as well as representatives from the Office of School and
Improvement (OSSI), the Office of Human Resources and Development (OHRD}, the
Department of Student Services <DSS ) the Office of General Counsel (OGC), the Department
of School Safety and Security, the Office of Communications, the MCPS Title IX Coordinator,
as well as other personnel in offices and departments as "'appropriate." (See also section l(J)
where the system-wide contacts are to consult with the County Multi-Disciplinary Team.) In
addition, School- based Child Abuse Liaisons serve as a point of contact with the the MDT in
order to support the school principal and the alleged student victim. (See section l(M) of the
protocols).12 Moreover, in other documents, questions about child abuse cases are referred
to the ombudsman. Compounding this extensive, uncontrolled dissemination of police and
social services information. other persons employed by the school systems such as
contractors who have made child abuse reports are also being told in the protocols to transmit
confidential information to the principal mentioned above.
How many individuals with confidential information does this add up to, and how many of
them are union representatives and union attorneys as well as school system attorneys who

would be privy to private student information in DSS records which could later be used in
proceedings to defend the alleged abuser as well as the MCPS in a possible suit? This
re-dissemination not only creates emotional harm to the alleged victim, but it sets up backdoor
discovery. This is reprehensible, and the protocols must be revised to comply with the law
and to prevent harmful, unfair actions against the student"
Consequently, the Attorney General in his opinion goes on to state that "[t]he fact that a
school system representative on the multidisciplinary team may have access to information
concerning the child abuse investigation conducted by the local DSS and the police, this does
not end the analysis, because the authority to obtain information does not necessarily imply
the authority to disclose it to others .... " Accordingly,the confidentiality statute does NOT
provide authority for the members of multidisciplinary team to disclose the confidential
information

contained

in such reports or records

to other persons

or agencies."

Nowhere mentioned in the policy or protocols is a mechanism to address the need for the
superintendent to have investigatory information for disciplinary hearings. The General
Assembly enacted Section 1-202( c)(1 )(vii) of the Human Services Article. It permits
information in DSS child abuse and neglect confidential files to be "disclosed upon request"
only to the public school superintendent following a report of suspected child abuse involving
a student allegedly abused or exploited or neglected by: "a public school employee in that
school system, an independent contractor or employee of an independent contractor who
supervises or works directly with students in that school system." Superintendents may not
further disseminate this information to other staff members. Consequently, the protocols
should make clear that information learned in the multidisciplinary team related to the
investigatory

process

STAYS THERE.

Information to help the student victim is authorized under Section 1-202(c)(v) of the Human
Services Article. It permits disclosure "upon request" to a "licensed practitioner who, or
agency, institution, or program that, is providing treatment or care to a child who is the subject
of the report of child abuse or neglect for a purpose relevant to the treatment or care" of the
child. This section can apply to the School-based
carefully for that purpose alone is legal.

Child Abuse Liaisons. Sharing DSS record

Trauma-Informed
and Trauma-Sensitive
Practices implemented
in other schools
systems across the country (See the programs developed in the state of Washington
and Massachusetts,

for example,

on how to create compassionate

schools.)

At the very least, this empathetic mindset should be applied in the MCPS policy and protocols
regarding the interviewing of alleged child abuse and neglect victims and witnesses on
school grounds. The proposed section lll(A)(2) in the protocols can only be described as
"trauma-uninformed"

and "trauma-insensitive."

There is an enormous body of research about how children's brains are affected by trauma,
including physical and sexual abuse and other Adverse Childhood Experiences ( ACES).
Additional trauma can be inflicted by a lack of support and emotional safety which is denied
children when principals, for example, insist on inserting themselves

in child abuse interviews

and/or asking questions, even when the victim would be intimidated, embarrassed, or
believes that the abuse is his or her fault, or that they are to be disciplined by the principal or
designee. This is a longstanding problem. The school system, however, has a moral
obligation to conduct ongoing training to ensure that the proper changes occur and to ensure
that principals, in particular, understand why current practices are unacceptable
change in the culture in the school system occurs.

so that a

Child victims and witnesses should be allowed to determine if no one will be in the
interview from the school. To make that choice for victims is to reinforce the victim's
feelings that they are as powerless to express themselves in the interview as they were
powerless to stop the abuse.
While the principal is required to consult with DSS or the Police about the concerns the
authorities may have if the principal insists on sitting in on, or interrupting the interview, some
principals have ignored these professionals' objections because they believe it is their
prerogative to know everything that happens in their school. Giving the victim and witnesses
a choice about who will be in the interview, for example, along with eliminating the illegal
power of a principal to quash reports which is not clearly stated in the policy and protocols will
facilitate the truth. (There was an example of a quashed report in a recent newspaper article,
although the retired principal denied it. In 2004, John Burley reportedly told a parent not to
report, that he would take care of it, and that scandal needed to be avoided. See attached
article.)
Indeed, what is so disappointing is the seemingly purposeful failure to use of the following
language drafted by experts at MSDE and OHR and the Howard County policy workgroup.
understand that the Howard County language was given to school officials. It describes how
principals are to proceed when DSS and/or the police are on school grounds to conduct a
child abuse or neglect interview with students.
Therefore, the following language, entitled, "Third Party Presence", must be adopted, rather
than resisted by school officials. In section lll(A)(2) of the protocols, there is no mention of
any such language. It is completely ignored. The Howard County policy has a version of this
language and the drafters of the policy and protocols have a copy of it.) This decision to
discard this provision should not stand. The amendment below must be included in both the
policy and the protocols:
"In the event that a child is questioned by the protective services worker and/or police during
the school day on school premises in an investigation of child abuse and/or neglect, whether
the child is the alleged victim or non-victim witness, and whether the child has previously been

interviewed, the principal or the principal's designee shall determine after consultation with the
individuals from the local department of social services or the police, if a school official should
be present during the questioning. The school official should be selected with input from the
child, on a case by case basis. The purpose of discussion with police and CPS is about
providing support and comfort to the child who will be questioned. All questioning of the
victim or non-victim witness must be conducted by the police or representative of DSS. In
general, state regulations express a preference for having a third party present during
questioning of a student except in circumstances where the principal or designee, in
consultation with the protective service worker [or the police], determine[s] that a third party
should not be present during a child abuse interview. This may occur, for example, where the
presence of a third party may intimidate and inhibit the child's responses. If the principal
refuses to accede, then the police or DSS can raise an objection with the superintendent."13

A Dearth of Data
Accountability and transparency requires MCPS to collect relevant data to determine if the
system is complying with law and best practices. Accountability and transparency have been
made impossible because MCPS has failed to call for an independent investigation of the
school system's scandalous handling of cases. Praesidium, the consultant MCPS has hired,
will not be conducting an independent investigation. Furthermore, Praesidium has publicly
lauded the draft policy and protocols, and markets inferior criminal history background checks
that are not fingerprint based. Hiring them acts as a distraction from the necessity of
conducting an independent investigation. The company's public praise for the draft policy and
protocols is concerning, but not surprising, given the desire of all consultants to please those
who hire them and to whom they wish to sell their products.
The hiring of this consultant will do nothing to increase transparency or uncover facts
unknown to the public. One cannot fix problems without sufficiently knowing about them and
their scope. Most important, the consultant must be versed in trauma sensitive procedures
and Maryland law. Since MCPS at this point, will not ensure that an independent investigation
will take place, I believe, at the very least, that the school system invest in the collection of as
much data as possible to have some sort of accountability.
Unfortunately, the only data element listed in the policy deemed necessary to evaluate MCPS
compliance with the child abuse laws is the overall number of suspected abuse or neglect
cases reported to law enforcement or CPS during an unstated period of time. This is
unacceptable. It leaves the impression that any attempt to be accountable and transparent
concerning such a serious issue as a child abuse and neglect scandal in a school system with
a history of appalling mishandling of such cases will not happen. Moreover, the policy does
not require even this one bit of information to be reported to the Board of Education or the
public.

MCPS would not have been the first Maryland school system to undergo an outside
independent

investigation.

For example, MSDE and subsequently

a Special Counsel both

investigated the Anne Arundel School System after the notorious Ron Price case. These
investigations made public their findings and recommendations. (I have those reports if school
officials want to see them.) The investigator concluded that in order to get all necessary
information, he absolutely needed subpoena powers. Reporting practically no data and
avoiding an independent investigation means that the public has to take MCPS at its word
with no verification. Entities that want to be trusted, however, provide evidence that they are
worthy of being trusted.
Hence the data elements listed below need to be added to section E(2)(a) of the policy.11
This is not an exhaustive list, but it is a lengthy one because there are no other accountability
measures. Additional recommendations

regarding data elements should be sought by school

officials from the public.

Historical statistics since 1991, the date of the Attorney General's opinion, need to be
disclosed year-by-year to determine if progress has been made, and whether MCPS
has now come into compliance with child abuse laws, regulations, case law, and
Attorney General opinions, including the implementation of trauma-informed and
trauma-sensitive practices for students involved in child abuse cases. Also, please
note that the recommendations regarding data below refer to aggregate data, including
aggregate data in the secret file to be delineated from other data for as long as the
secret file has existed. Historical data should be reported as soon as possible. If any
data are unavailable or have been destroyed, school officials need to tell the public
specifically which data and why.

The school system must allocate the time to compile historical data to verify that it is
actually making a conscientious effort to hold itself at some level of accountability after
its troubled history, and that it takes seriously its obligation to protect children.
Historical data must be reported to the Board and the public. Current data must be
reported annually.

The number of child physical abuse, sexual abuse (this includes sexual exploitation),
neglect, mental injury neglect and mental injury abuse reports made to DSS or Police.

The number and types of reports referred to authorities for vulnerable adults.

Reporting sources should be documented

and broken down by certificated and

uncertificated employees, contractors, volunteers, substitutes, school bus drivers,

student teachers, as well as parents etc. Anecdotally, it appears that the vast majority
of cases reported to authorities involving employees, contractors and volunteers etc.
have been initiated by parents and students or others outside the school system.
Therefore, these data needs to be collected separately to document who has reported

suspected child abuse and neglect alleged to have been committed by someone in the
system. This includes individuals in the school system who have reported, categorized
by their position and the position of those reported in the school system

The number of reports involving individuals who were once students and subsequently
reported the abuse or other sexually related crimes committed by employees or
volunteers after leaving school.

Aggregate statistics should also be delineated by primary, middle school and high
school levels and by gender.

The number of individuals currently in the school system's confidential files and how
long they have been in the file. The number and types of alleged misconduct. The
number of complaints each individual has received separated out by those generated
by students, employees, volunteers contractors and/or parents or guardians. The
range of discipline imposed by school officials for each individual. The number of
individuals in the file ultimately reported to authorities by school officials or others
outside the school system. The number of alleged victims by age and gender
discovered in the files and the number of schools where the individual had access to
students.

The number of individuals in the files who resigned and the reasons for the
resignations and whether or not they received positive recommendations from the
school system. The number of individuals suspended or fired for child abuse related
incidents.

The number of individuals accused of position of authority, child pornography, second

degree assault (a common plea bargain down from sexual offenses), neglect, physical
abuse and assault, statutory rape, and, other related sexual offenses including, but not
limited to stalking, indecent exposure, and child pornography, etc. The resultant
disposition of these individuals in the school system.

The number of individuals ever disciplined by the school system for failing to report
child abuse and neglect and/or blocking a report by category of employment. The
types of discipline imposed by the school officials for failing to report child abuse and
neglect or blocking a report. The number of individual reported to the police for
blocking a report. The penalty for interfering with a report in Section 5-702.2 of the
Family law Article is 5 years or a $10,000 fine or both. This penalty must be added to
Section V. on page 14 of the protocols. This crime can be reported even though it is
not mandated that a report is made.148

The number of children alleged to abused by registered sex offenders who have
regular access to them. This situation can be reported as well even though it is not
mandated.

The number educators whose certificates have ever been suspended and/or revoked
by the State Board for failing to report child abuse and neglect regarding children and
vulnerable adults.

The number of requests to the State Board to suspend or revoke a certificate for failing
to report.

The number of certificates ever suspended or revoked for committing child abuse or
neglect or other sexually related crimes.

The number of educators, contractors, other employees and volunteers who have
worked for the school system, even after committing sexual offenses or other sexually
related crimes or violent crimes. (There was one case recently reported in the press.)

According to experts, no one with a history sexually related crimes should

continue to be allowed to work or volunteer in any school system.)

The number of employees, broken down by category of employment, who have been
moved to another school within the system after violent or sexually related complaints.
The number of moves per each individual.

A description and number of professional development and educational outreach

efforts each year directed toward current staff, new teachers, students, parents,
school-based child abuse liaisons, substitutes, student teachers, school bus drivers,
volunteers, contractors and the community. The number and type of trainings per
each group annually.

The number of investigative interviews concerning abuse or neglect by the Department

of Social Services and/or the police on school property during school hours. The
number of interviews where principals or designee have been present in the interview
with a rationale as to why their presence was necessary.

The number of confidential settlement agreements with educators accused of child

abuse or sexual offenses involving children or vulnerable adults.

The number of individuals flagged since 1987 by the Criminal Justice Information
System regarding state crimes. When I spoke to Mr. Zuckerman, he was unaware of
anyone who had been flagged. See below." <a11 bullet points)

Criminal

History Record Checks

School officials may be under the misapprehension that individuals required to obtain criminal
history records checks under sections 5-560 et. seq. of the Family Law Article can be
exempted if they do not have "direct, unsupervised and uncontrolled access to children on
MCPS property." This exemption only applies to a contractor or subcontractor and goes into
effect on July 1, 2015. In sections A(4) and C(4) of the policy the language could be
misconstrued because it is drafted so that contractors and subcontractors are in the same
sentence with new and existing employees.15 16 This makes it seems that the exemption for
contractors and subcontractors is not limited to them alone. All certificated and
non-certificated employees, student teachers, substitutes, bus drivers have to be checked
irrespective of the exemption for "'direct, unsupervised and uncontrolled access to children."
Amendments should be drafted to clarify in both sections of the policy that the exemption
does not apply to anyone other than a contractor or subcontractor.15 16
The required standard in the the Family Law statute is "access to children" without
qualification. It is the "access" to children which then triggers the mandate for state and
federal criminal history fingerprint checks. It is unfortunate that the exemption language was
added in HB 642 during the 2015 session without any definitions of supervision and what the
standards for supervision are and whether or not school system employees would be the
ones tasked with this supervision. It is also unclear what MCPS considers "direct" or
"uncontrolled" access. These terms are undefined. MCPS need to define access as strictly as
possible in the policy and protocols. MCPS has the option of enhancing protections for
children rather than just limiting them. Amendments should be drafted in the same sections to
define "direct, unsupervised and uncontrolled access to children."11
With regard to fingerprint based criminal history record checks, I have taken the liberty of
contacting Carole Shelton. Ms. Shelton is the Director of Maryland's Department of Public
Safety and Correctional Services Information Technology and Communications Division and
the Chairperson of the Criminal Justice Information Advisory Board. She mentioned that she
is available to speak with MCPS officials and possible send staff out to meet with MCPS
officials about the flagging system for state crimes enacted in 1987 and the new Rap back
program which the FBI announced is fully operational. Both these programs avoid the
necessity of redoing checks for individuals who have been previously fingerprinted. (The state
flagging system has no cost.) She would also be able to answer other questions regarding the
law. She would also be able to explain the pros and cons of private checks as opposed to
fingerprint based checks. Her contact information is available on the DPSCS website.
Other Issues
In Section 1(1) in the definition section regarding contractors of the protocols could be
interpreted to limit the requirement to report abuse and neglect by a contractor only to when
the contractor has direct access or interaction with MCPS students on MCPS property or

during MCPS-sponsored activities. This needs to be rewritten so it does not violate Section
5-705 of the Family Law Article, which requires the reporting of child abuse and neglect by
everyone.ll
Reporting is required whether or not the contractor has direct access or an
interaction with a student and whether or not that "direct interaction took place on school
property of during MCPS-sponsored activities." This provision also appears to contradict ll(A)
and(B) of the protocols. For example, the contractor could hear from a teacher or another
contractor information that would give rise to a reason to believe that abuse or neglect took
place.
In Section ll(C)(2) of the protocols the principal or direct supervisor is instructed not to
distribute a copy of the Form 335-44 to the police and State's Attorney's Office in cases of
neglect.

In 2010 neglect was made a crime. See Section 3-602.2 of the Criminal Law Article.

Under current law educators could be neglectors. Therefore, this section of the protocols
should be amended to delete "In cases of abuse only."1.ll.
In section lll(l)(B)(d)and

lll(B)(2)(b)

of the protocols, another loophole is created which gives

MCPS the right to inform the alleged offenders that that they have been reported for abuse or
neglect without asking permission first from the police and social services. This is under the
guise of protecting the best interests of children because MCPS ostensibly needs to develop
an action plan to protect the child. This section needs to be deleted. 20 If the alleged offender

is so dangerous that school officials cannot wait for the police and social services to start
conducting their investigations, or they cannot even wait to ask the police or social services to
give permission to speak to the alleged offender so that the investigation by authorities is not
compromised, then school officials need to call 911, or the Superintendent needs to place the
alleged offender on leave without giving the offender the exact reason why. Why should
children be made frightened by having to follow a safety plan in a place where they are
supposed to be safe in the first place? The Attorney General did not give exemptions for a
action plans developed by a school system for a variety of reasons that would allow the
notification of the alleged offender that they have been reported. This is, in my view, a
subterfuge to protect the interest of the alleged offender. I have not seen these types of
provisions before. I could not find a similar provision in the MSDE model policy.
The school system should add a section about the Position of Authority law, directing
employees and others to report a violation to authorities, even though it is not technically child
abuse.1 Certainly, this behavior would give anyone reason to believe that the educator, for
example, is also abusing children on school grounds. This has already happened.
Lastly, the school system lawyer should look at a September 19, 1997 Attorney General's
opinion about who should notify parents and when.22 The Attorney General states: If the
situation involves an investigation of alleged child abuse by a teacher, the parents should be
told of the situation within 24 hours. The responsibility for notification, however lies with the
local department of social services or the police department, not the school system." Section
111(0)(3) of the protocols contradicts this opinion. Also, MCPS seems to want to contend that

a notification of a report should be treated differently from a notification of investigation. I

think this is an artificial distinction designed to notify the alleged offender and the union as
soon as possible, thereby compromising

the investigation by authorities. Because this section

of the protocols conflicts with this opinion, this section needs to be rewritten.22

Finally, I would respectfully request that my recommendations be given careful, considered

attention. I would hope that they are adopted to protect the health and safety of children
under the care of MCPS. MCPS has a profound obligation to change the culture of secrecy
which has been allowed to thrive for decades. In institutional abuse the dynamic involves a
tacit collusion between abusers and the administration to keep things under wraps. But "there
is no safety for children in secrecy." (See Horace Mann School report, referenced above).
Respectfully,

Ellen Mugmon,
Specific recommendations for amendments are incorporated in the body of this report and are
numbered and underlined.

..

FIALPH ~ TVI ~a
&tl>UTt ATTOllHE1S GE.,tll,

OFFICE OF THE ATTORNEY GENERAL

200 SAINT PAUL PLACE

BALTIMORE. MARYLANC 212022021

(301) 57&-e300
0.0~MettO ~193&
Ttlee0Pl8'

Nc.1301/ $7&,,6a0a

3330019
WRITJil'S DIRECT DIAi. NO.

T.ieollOne 10, Deaf

e111e. /Vea 57.c:172

D.e. Metro~,

December 17, 1991

The Honorable Thomas M. Yeager

413 Main Street

Laurel, Maryland

20707

Dear Senator Yeager:

You have requ.estea our opinion on several issues concerning

investigations by school system personnel of allegations that a
school system employee committe4 child abuse. Specifically, you
have aske4:

.
,lo'

Is a school system authorized to conduct, for pers.onnel

purposes, an investigation of allegations of abuse of a student by
1.

school

system

employee

independent

of

the

child

abuse

investigation conducted by a local department of social services

("local DSS") or the police? I! tbe llchool system has that
authority, what procedures must the school system follow?
2.
Is direct investigative
infomat'ion a prerequisite to ~
administrative
action against a school employee accused of abusing
a student?
3.
Do a school system and its employees enjoy immunity for
acts or omissions during the school system's investigation?

OPD(XOJr QP DI ~~Gl!CiiBltQ,
cite aa:

76 gpiniopa of tlle Attorney General_ (1991)

[Opiaioa Jlo. 11-os& (Deceaber ~7, 1,t1)J

~7))

n,;; t nc

The Honorable Thomas M. Yeager

December 17, 1991
Page 2
4
:rf the school system's investigation
compromiseser
interferes with the one conducted by the local DSS,or the police,
or adversely affects a criminal case ~rior to disposition, is the
school system subject. to any crJ.111.inal or civil penalty o:r
liability?

. s.
conflicts

Does Maryland law provide any procedures to follow when

ot interest arise in investigations of child abuse?

In responding to your inquiry, we face a significant proDlem

of statutory construction~ It would .be easyenough to say, using
the exact phrasing of your.question,
that a school system has no
authority to conduct its own"child a~use investigation."
But that
response would not really deal with the issue, because a school
system can contend with merit that an i ivastigation- cond.uc-~ed
solely for the purpose af gathering evidence for a persor~el
hearing is not a "child abuse investi9~tion.
The issue is not a matter of brminology u~ of st4Lutory
wcope. ~here is no doubt that the General _A.ssem];)~y wanted only 1/
specific
agencies,
_not._ incl-uding a school system-. -to.. dn M .
i nv,lll,,;t.~a~1on
in or(l~1to 't 1.~~e out how to help the child ancl
whether to prosecute the alleged. abuser. And the legislative
histoey supports. the cone1usion that no collateral investigation by
someoneelse .~f the same fac::ts may interfere
with the primary
investigation. What we are unable to conclude, under current law,
is that the General Assemly has flatly prohibited a school system
from conducting an.investigation
in order to figure out what to do
with an emplo~e who has been accused of child abuse

our conclusion,

in short, ia that a school system may conduct

its own personnel . J.nquiry, .but only within .. limits that ensure the
primacy of the cllild abuse investigation.
If the General Assembly
concludes that a different outcome is preferable, it is tree to
chan9e the statute accordingly.

More specifically, our opinion is as follows:

In Part I of this opinion, we conclude that a school system
may conduct its own internA1 r9r&Qnnal investigallon o! lileged
eh1Ul abuse by an employee if
it complies with the following
limitations:
Ci) 'l'he S?hooi_s_ystem.
.. ma:1. take ... 1"Q... iPY!~~.i_9~tory
a_;tj,on prior to the su):>m1ss:iono.f . a report about the inc1dent to
the local DSS or the appropriate
law enforceme_nt agency.1
(ii)
1 The term "law enforcement agency" is defined as follows:
(continued )

szaz

0L

ios

The Honorable Thomas M. Yeager

December 17, 1991

Page 3
the local oss or the ~olice of its
intention
to conduct an internal_il)y~stigation.
(iii.) ..1'he se:,hool
,system. sho.~ld: npt int~FVi~w the_.victi~ C?.f:. t~e . ~l}.~9~d.J:);,u_se,the
..a-llec;ed abuser, -or .-anY~t~tial
witness w1thout the prior consent
Th~ school system should.notify

of the local DSS or tbe;olice.v'(iv) '!'he school system must keep

confidential any information about the alleged child abuse that it
learns during the course of its internal investigation.
(v) In
order to avoid any possible risk of a collateral estoppel effect on
a criminal
pt"o11:u:1r.n~inn, thQ ai:bQQ:la 01otcs 3hould not seex Lu
&:djud.icate a final
disposi~ion - of a personnel action against an.
al"'leged child. abuser, where the charges are based on the alleged
abuse, without the prior consent of the State's Attorney.~
In Part II, we conclude that a local superintendent C?f schools

does not need direct-investigative information to tak~ a_ppropriate

action ac;1alnst a school employee suspected of child a]:,use. With

"court

approval/".

school .

personnel

who

e&-e.,

members .

of

multidisciplinary team may disclose infot"mation obtained by th@

local DSS or the police for use in a disciplinary bearing.
In Part III, we conclude .that a school system does not enjoy
complete. immunity from liability
if it conducts an independent
personnel investigation of an allegation that one of its employees
committed child
abuse.
Bowever, a school ~ystem .employee
undertaking such an investigation in accordance wi tb. a school

systems policy would ordinarily be immune from personal liability

for ~ ,t.nr,tio'I.\~ai.rt er omiccion during the -111Y\!~LJ.gation.
In Part IV, we conclude that neither a
sets out the specific offense of
investigation of child abuse. Although the
obstructing or hindering a police officer
law

1(

statute nor the common

interfering
with an
common law offenses of
in the performance of

continued)

(1) "Law enforcement agency" means a

state, county, or municipal police department,

bureau, ~r agency.
.
(2) "Law enforcezent agency" includes;
.
(i) a State, county, or municipal
police department or agency;
(ii) a sheriff's office;
(iii) a State's Attorneys's office; and
(iv) the Attorney General's office.
5-70l(k} of the Family Law Article ("FL" Article). For brevity's
sake, and to reflect common ~raetioe, this opinion will generally
refer only to "police" investigations.

~7JJ

ncJ

r nc

The Honorable Thomas M. Yeager

December 17, 1991
Page 4
duty or obstruction of justice could conceivably form the basis of
charges, the facts that would be necessary for such charges to be
brought are extremely unlikely to occur in a school board s
internal personnel investigation,
particularly if the school board
conducts the personnel investigation within the constraints
discussed in this opinion.
With regard to civil sanctions,
although a local school system's decision to conduct independent

investigations is inconsistent with the model policy of the State

Department of Education, the Stat:e Board of Education has no

authority to prevent implementation of the local school system's
decision, because the model State policy is not embodied in a bylaw

or regulation.

In Pa.rt V, we conclude that in cases where the suspected

abuser is an eniployee of the agency charged with responsibil lty for
investigating reports of suspected child abuse, tb, __ investigation
ust be conducted by another responsible investigative agency in
order ta avoid a conflict... -.. ct --
interest

... .
..

'

x
1nve1tigatio~ of euspacte4 Cbil4 &bus

Th acbool 1Y1tam1Paraop.pe1 copcerpa

On June 27. 1991 ~b leard of Eduucttion of Howard county

&opted a new apolicy on Child Abuse, sexual ~use and Neglect."
The policy acknowledges that validation of suspected. child abuse or
neglect is the responsibility of the Howard County Department of
Social Services and the Howard county Police Department.
Accordingly, tbe policy directs a school employee or volunteer to
make an.immediate oral report of suspected abuse to one cf these
agencies and to the school principal or tbe superintendent of
Schools.
However, if the report alleges that a school employee is the
abuser, tbe policy requires "[t)he Superi.ntendents de$ignee, in
cooperation with responsible law enforceJllent authorities, [toJ
promptly investigate the charges against the employee and prepare
a confidential report to the superintendent."
Although the intent
is that the school systeM's ~nvesti9ation be done coop~ratively,
nevertheless the investigation is intended to be conducted by
school system employees.
If, considering

the results of the internal

i.nves~igation,

the

Sur>e::rintendent has "reasonable causP11 1"o c:onolude that Ll1e emp.1oyee

cngag~u ln ac~s of child abuse or sexual abuse, the Superintendent

is to determine the appropriate

discipline, up to and including
dismissal. Suspension or dismissal of a certificated employee must

t:..,.11

(\{")

Tf',f'

The Honorable Thomas M. Yeager

December 17, 1991

Page 5
follow the procedures set forth in 56-202 of the Education Article
tD" Article)

( 1

Professional employees of a local school system unquestionably

may be suspended or dismissed if they are found to have abused a
student. ED 56-202 allows a county board of education to suspend
or dismiss professional personnel
for, among other things,
"(i):mmorality"
and "[ml isconduct in office including
knowingly
failing to report suspected child abuse in violation of SS-903 of
the Family Law Article " ED S6202(a)(i) and (ii).

In addition to enumerating the causes for which a board may

dismiss an employee, ED 56-202 also establishes the due process
rights that the board must accord to tenured employees prior to
dismissal.3 Before suspendin9 or dismissing an individual. the
county board must "send the individual a copy of the charges
against him and give him an opportunity within 10 days to request
a hearing." ED S6-202(a)(2). If the individual submits a timely
request for a hearing, the county ))oard.must hold one, at which the
individual has an opportunity to be heard, in person or ))y counsel,
and to present witnesses. EI> S6-202(a)(3). Except for assistant
superintendents and higher level administrators in Baltimore City,
the individual ~ay appeal from the decision of the county board to
the State Board of Education. ED S6-202(a)(4). 1'bese procedures
are consistent
with the clue process mandate of the Fourteenth
Amendment to. the u.s. constitution.
.!., .!.&.S..t.,
Bd. of
Educ. y. Loudermill, 470 u.s. 532, 542-46 (1985). 11eyeland
While ED SG-202 sets forth the general scheme under which
teacher dismissals must be considered, it is silent about the type
an4 quantum of evidence required bef~re the board may dismiss the
.,,. .....

2 Professional personnel within the scope of ED j6-202 include

teachers, P.rincipals, supervisors, assistant super.ntendents and
"other ,Professional assistants."
ED 56202 (a1.
Dieteiplinaey
pracA~d.ngs for non-professional employ~es are not addressed in
statute
tiut may ))e part of the n~ot1ated
a9reements
between
employee groups and local school systems.
l Professional public school employees in Maryland ae~ire
''tenure0 after two years of employment.
v,
o
Edue,tion,
237 F. S"P 222 (D, Md.), aff~'Ji 34
2 464 ( 4 cir.
1~65 Therefore,
tfiey may be dismisseaonly for cause subject t:n
st,tutorr duP 1:-rr;i~calili;provi:aions. Tl1ue P!'OV1sions, however, do
not afply to probationa?."Y staff, these who h~vo wo~t.~ for the
s~bgg or~tm Yo~ lwsu than ~Vo years. ED 56-202(~).

isr,kea

Bof}f

4 Neither the statute

nor the due process mandate requires
comparable procedures if the board's personnel action falls short
of a s~spension - for example, a transfer or the imposition of
leave witn pay.

6Z.L.:'.. 0l 10

The Honorable Thomas M. Yeager

December 17, 1991
Page 6

teacher.
"This section does not specifically
describe the
procedural or su~stantive elements of tbe hearing, other than to
require a prompt hearing and to grant the individual an oppor~unity
tc be heard before the board, in person or by counsel, and to bring
witnesses." 64 opinions of the Attorney General 12s, 126 (1979).
Nor does ED S6-202 provide guidance ab~ut the board's investigation
of charges for dismissal.
Finally,
neither the. ;statute nor its
legi.&lative
bistory specifically .. con'fti'ple.tes: the difficult
situation in which an el:llployee is. ch-arged with child abuse. Thus,
- D S6-202 does not expressly vest local school. officials with. the
authority to conduct an independent investigation
of suspected
child abuse by a school employee.
standing alone, the absence of express authority in ED S6202

to conduct an investigation would not preclude a sghoolaystem from

restricts
school officials'
eirowD3tum .. es In lllll!ll tftl!'I 11
evidenge that the employee has committAd ~~ ~~ ~~- -~~~
e11u11u:!J.dLllL1 lft !,b:.lU:.! (l} and in which the uployee has ):)eenafforded
an opportunity to present evidence in his or her own defense.

doing so.
authority
sufficient

The

statute

~n ,Hi:"'~

,..

plain1y

"'1f'li'Y

Resetar v. State Baor5' ot ~w;ation, 84 Hd, 5::J7, :;r;3 ,. 399 A. 211 22!:)

( 1979)
.This bur.de~. ~n the scho.ol ))card, to pres~t
evidence
.sufficient.to warrant disciplin, implies the ))oard's authority to
'find out whether such evidence exists.
Confronted with a somewhat
analogous question . - whether bearin9s under EO ft;202 may be
conducted by an appointed bearing examiner in the absence of
explicit statutory authorization - the Attorney General det~r11ined
that the use of he~ing officers was not precluded. 6,S Op,~nigps af
:the Attorney Gemfrc11 at .1.i&.

Hence, we conclude that the Howard County Board of Education

has authority under the Education Article to develop the facts that
it would need to decide whether an employee should be disciplined,
unless this authority
bas been curtailed by other law specifically, the provisions of the Family Law Article dealing with
child abuse. Indee~,.as a practical
matter, no sc::bool system can
avoid the immediate issue.whether the t=ployee should be removed
from contact with children pending further investigation.

B.

Child 41!use Subtitle

1.

curre;t statute

The General Assembly has enacted a comprehensive child abuse

prevention, detection, and treatment program.
This legislative
plan, embodied in .subtitle
7 of~:~1:~-S-"o"f'~
Family La-w Article
C "FL" Article).,
p~ovides for 'C,~~~l R~oee~~s to identify ~nd
prate~ abused ch1ld.ren and c:r1: al procedures to punish chl.ld
abusers.
The process involves three cH:stiricl: 'steps: the reporting
of s;uspected abuse: an investigation of these reports;
and, if

f.r.);

n.;)

tnc

The Honorable Thomas M. Yeager

December17, 1991
Page 7
abuse is verified, the provision of services, the initiation of
court ~roceedin9s, or both,5
Notwithstanding any other provision of law, including any law
on privileged
communications, each health practitioner, police
officer, educator, or human service worker acting
a professional
capacity vho has reason to believe that a child bas been subjected
to abuse is required to make an oral report,.by telephone or direct
communication,. as. soon as possible to the local DSS or the police.
FL SS-704 (a) (1) and (b) (1) ( i). 6
The agency to which the oral
report is made must immediately notify the other agency. FL S5
704 (b) (2) (i).
Not later than 48 hours after the contact that
caused the individual to believe that the child had been subjected
to buse, the professional must malte a written report to the local
DSS with a copy to the local State's Attorney; FL ss-

in

704 Cb) (1) (ii).

Promptly after receiving a report of suspected abuse, the

local DSS or the pol'ice, or both if jointly agreed on, are to make
a thorough investigation
of the report to protect the health,

s Maryland law also provides protection for children suspected

of being neglected.
However, because Y.our questions pertain to
ca,e, wnere a school ,em.Ployee ia suspected o~ child abuse, this

opinion focuses on ch~lcrabuse only.

6 "Abuse" means:
(i)
the physical injuey of a child by
any parent or ottier person wfio has ~ermanent
or t:emporary custod_y or responsibility
for
superv1sion of a chird, or~ any household or
family member under circumstances
that
indicate that the child's health or welfare is
significantly harmed or at risk of bein9
signifioantly harmed; or
(ii)
sexual abuse of a child, whether
physical injuries are sustained or not.
(2) "Abuse" does not include, for that re4son
alone,
providing a child
with nonmedical
religious re~eaial care
and treatment
recognized by State law.
FL SS-701(b) (1).
7 With certain
exceptions, . a person other tha.n a health
practitioner, police office, educator, or hum.an service worker who
has reason to believe that a child has been subjected to abuse is
required to make either an oral or written report to the local oss
or the police. FL SS-705.

6iLi: 0L TO

The Honorable ThomasM. Yeager

Dece=ber 17, 1991
Page 8
safety, and welfare of the child or children.
FL SS706(a)(l).8
Moreover, if the report alleges sexual abuse, the agencies
responsible far investigating reported cases of su~pPnf.::4 ocxuai
ab'llac, includin~ l.he local USS., the police, and the local State's
Attorney, are to implement "a joint investigaticn procedure for
conducting joint investigations of sexual abuse." FL SS-706(f) (1).
The joint investigation procedure must include "appropriate
techniques for expediting validation of sexual abuse CQmplaints;
inc:ludc techniques designed. to "decrease the potential for physical
harm to the child" and "decrease any trawna experienced by the
child in the investigation
and prosecution of the case"; and.
"establish an ongoing training program for persoMel
involved in
the investigation or prosecution of sexual abuse cases." FL ss706(f)(2).
Marylan.t law requires the investigation to be both thorough
and timely.
.Within 24 hours after receiving the report of
s~u;pe~tedabuse, the local DSS or the police must see the child,
attempt to have an on-site interview with tbe child's caretaker,
and de~ide on the safety of tbe child and any other children in the
care or custody of the alleged abuser.
FL SS-706 Cb).
The
investigation shall include, among other things, a determination of
the nature, extent, and cause of the abuse, if any"; and, if the
suspected abuse is verified, "a determination of the identity of
the person or persons responsible " FL SS706(C).
To the
extent possible, the investigation must. be completed within 10 days
after receipt of the first notice of suspected abuse by the local
oss
the police . FL ss-706(g)(1). Th$ local oss or the police
must submit firsttheir preliminary findings and later their final
i~vestigative report t~ the State Attorney.
FL SS-706(b) and

or

( l.)

Based on its finding and treatment plan, the local oss ust
"render the approl)riate
aervi:,-9s ii.n ,the ~!t.-!~.1~,res,:.1
of the
ch11, in~1uding, when indicated, petitioning tbe juvenile court
for appropriate relief FL S5-710(a).9 If a report bas been
made to the State's Attorney and the State's Attorney is not
satisfied
with the recommendation, the State's
Attorney may
petition the court at that time to remove the child if the State's
Attorney concludes that the child is in serious physical danger and
an emergency exists. FL S5710(b). The State's Attorney may also

8 on request by the local DSS, the state's Attorney assists in

the investi;ation. FL S-706(d).
9 This relief can include colDJDitment cf the child to the local
oss and reJJ:1oval of the child from the parent's
home.
S3820(e) (1)(ii) of the Courts Article ("CJ" Ar~icle).

6Zll 09! t09

The Honora~le Thomas M. Yeager

December 17, 1991
Page 9
file criminal charges against the abuser.
Maryland Code.
2.

Article 27, SlSA of the

t,eqisla\i hitory

In 1963 the General Assembly enacted the first statute

pertaining to the mistreatment of children. See ChaptP.~ 741, Lawe
of Ma.:-yland 19is:,.
una6r this act, codified at former SllA of
Article 27 of the Maryland Code, any parent, adoptive parent, or
other person who had permanent or temporary care or custody of a
child under the age of 14 years and maliciously beat, struck, or
otherwise mistreated
the child to such a degree as to require
medical treat111ent was quil ty of a felony and upon conviction
sentenced to not more than fifteen years in prison. Chapter 743
iJ.:ovidedno reporting or investigation
procedures.

In 1966 tbe General Assembly established the local Dss as the

principal agency to receive and investigate reports of suspected
abuse. ~
Chapter 221, Laws of Maryland 1966. Under this act,
,-v,.ry "haalt:.h praetitioute.t',
ea.uea'Cion, health, mental health, or
social worker or law enforceJnent officer" who contacted, examined,
attended or treated a child and believe~, or had reason to t,elieve,
that a child bad "sustained physical injury as a result of a~use"
was required to make a report in the :manner provided by statute.
The person ma.king the report was required to do so orally to the
local OSS an~, if the reporter believed or had reason to believe
that immediate protection was needed, also make a report to the
police. See Artic1e 27, former SllA(c) and (d). Within 48 hours
of the contact that disclosed "the possible malicious treatment or
beating," the individual was required to make a written report to
the local DSS and to the local state's Attorney.
Chapter 221 a;so implied that an agency other than the local
DSS receiving a report of suspected abuse was not authorized to
conduct its own investigation to determine whether the abuse had
osurred. J1n4er.~~e ~~~- ~~-;~e.t.. ~lJl~~-~.Y....agen~ .~t ,re~eiye:~.an
pr~~ ~OJ;" .~T!'r.itten
.report 9,l s:,.,.spe.~t.,.cl . . ~~~ .. ~r9m -~ pri v~t, .. Pa~y ~as
.rell':':~re~ .1;~_J;-~far J.t ~to J;tie~_lq.~al: ..P!~- Former SllA(cl). "If, after
interviewingt:be private party ~no reported thP. suspected Dl:>use,
the local DSS det~ined
that there was "probable cause" to believe
that a violation had occurred, then the local oss was required to
conduct an investigation as provided by the act.
The State's
Attorney, the police, "or social agencies having jurisdiction" were
required to assist
in the investigation "JJpon remiest by the
local department [of social services]." Former SllA(e) (emphasis

r;'7

,-...,...,
t

.,.,._,...

The Honorable Thomas M. Yeager

December 17, 1991
Page 10

added).10 Tbua, as of 1966, the law authorized only the local

to investigate.

oss

In Chapter 835 of the Laws of Maryland 1973, the General

Assembly for the first time authorized tbe investigation to be
conducted by the loc:al DSS 91: the police.
Accordingly, Chapter 835
mandated certain professionals, including educators, to make oral
reports
of suspected abuse to either the local DSS or the police.
The required wx-itten report was to be sent to the local DSS and a
co}:)y to the State's
Attorney.
Article 2?, former S3SA(d) 11
Neither the local DSS nor the police
were to proceed alone.
Rather, the one to which the oral report was made was required to
11nmediately notify the other. The local DSS and the police were
not prohibited from jointly agreeing to coop~rative arrangements
with othe: agencies.

In Chapter 296 of the Laws of Maryland 1984, the General

Assembly completely revised, restate~, and reoodified the laws of
Maryland relating
to family matters by enacting the Family Law
Article. As part cf that revision,
the General Assembly recoclified
in the new article the procedur&s relating
to child aburua tJ::a.at
formt111rJ,y appeared in the u1lmina1 Code. Nothing su99ests that the
General Assembly intended a change in the then existin9
investigational procedure thr.ough that revision..
bA Chapter 296,
R~visora Note to n, SS-903.

. In the 1984 Session,

the General

Asse~ly
also enacted Chapter
child
aDuae investigations.
Chapter 611 reflected the General Asseml)ly s concern for protection
of the child bf r~cr,,iz:-int, '1lDOng othei: ~l1J.n9s,.5oint efforts
among

pertaining specifically

611,

to

the agencies responsible for investigating child abuse.

Under Chapter-611, the local DSS, the police, and the state's
Attorney within each county were required to enter into a written
agreement that specified standard
operating procedures for the
investigation and prosecution of reported cases of child abuse.
These agencies were also required to implement a procedure for
conducting j.oint ,i.n.vestigations of child sexual abuse. Former FL

SS-90S(e).

Signltlcantiy, the joint

investigation procedure

required to include techniques designed to "de~ease

was

any trauma

1 Chapter 221 also established for the first time the local
department Is responsibility, based on its findings, to render
approP.riate services in theoest interests of the chi1.d, including,
when indicated, petitioninq the juvenile court on benalf of the
child for the aaaed protect.ion tnat either commitment or custody
would provide. Former llA(f).
ll

Forner SllA had been recodified as SJSA.

of Maryland 1970.

Chapter 500, Laws

{:_7JJ

f'ICJ

Tf'IC

The Honorable Thomas M. Yeager

December 17, 1991
Page 11
by_ _the c::hild in the investig~tion
and prosecution
of
case" and "establish
a- training
program for personnel
involved in the investigation
and prosecution
of child se)..-uala.buse
cases." Former FL S5-905(e)(2).
experienced

the

Chapter 611 resulted

from the work of the Governor s Task
Force on Child Abuse and Neglect. The Task Force's rationale for
requiring
joint investigations
and special training
in sexual abuse
cases was "to assure effective responses to these situations." _b&
Summaryof Preli.nainary Recommendations for Legislative Action at 5
(1984).
The Senate Judicial
Proceedings committee found that "many
counties do not have cooperative agreements l:>etween the local
Departments of Social Services and local law enforcement agencies.
As a result
et.farts are often duplicated thereby causing more
anguish to -a chi .d required to repeat accounts of abuse. n '?he
legislative intent, therefore,
was "to promote cooperation between
agencies responsible
for the investigation
and prosecution of child.
abuse so as to minimize the emotional and physical harm caused to
the child." ~ senate Judicial Prooeedin9s Co1D1Dittee, summary of
committee Report for H.B. 348 at 2 (1984).

In 1987, the General Assembly amended the Family LawArticle

to consolidate
child abuse and child neglect provisions
into one
subtitle
entitled
"Child Abuse and Neglect" and. codified.
as

Subtitle 7 of Title 5. Chapter 635, Laws of Maryland 1987. The

revision continued the requirement for -certain professionals,
including

both orA 11 :l' "'"'" :in w-.1iin9 ou3pe .. L1:::!tl

FL SS-704.
Chapter 635 also
amended the statute
to require the local oss, the police,
and the
State s Attorney
to establish
an t pngoing training
program for
personnel
involved in the investigation or prosecution of sAYnal
a.Liu1:>~

t.o

educators,

'tfi6

Ahnpe ~11100,

to report

J.ocalflSs or the police.

FL Sn708(!)(2)(11.1).

tn 1988, the General Assembly added one more agency to those

required to enter 'a 'joint agreement.
Specifically,
FL SS-706 now
provides that the local health offic:er must be included in the
written agreement that specifies standard operatin9 procedures for
the investi9ation and prosecution of reported cases of suspected
al:>use. ~
Chapter 6, Laws of Maryland 1988.

c.

balysi

The language and legislative

history of the Child .AJ:,use
leave no doubt that only the local DSS and police may
investigate an allegation of child abuse for the purposes of aiding
the child and prosecuting the abuser. But neither the statutory
language nor its history forecloses a school system's separate
investigation, under a separate grant of authority, for a quite
different purpose - deciding whether to discipline an employee.
subtitle

~7 J J

(IC

T (IC

The Honorable Thomas M. Yeager

December17, 1991
Page 12

Indeed, the overall goal of safeguarding children against abuse is

best served by a process that swiftly removes an abuser from a job
involving contact wi~ children..

_,.,,.

We infer a nU11J:>er of legislative objectives frcm the relevant

statutes: enabling sehool systems to make a prompt and informed
jua91Dent when deciding on disciplinary action against an employee;
protecting victims of child abuse against the potential trauma of
repeated questioningJ and allowing criminal cases against child
abusers to be developed by trained investiqators and prosecuted
without hindrance. The task of statutory construction is to find
a way to serve all of these goals. In doing so, we are 9',lided by
the conviction that the General Assembly meant to y1V6 primacy in
all resr~r.ta to the child abuse inv~stiqation itself and thus has
implicitly
limited th_e otherwise permi~sible . _- personnel
investiqation by the
sch~,1 system.

! .
.

. -s

one overriding r.equirem.ent of ... the Child Abuse subtitle

is
immediate reporting ot instances -of ~~spected abuse. Thus, under
no circumstances may a schoo~ system delay reporting an incident
while it conducts its own1nternal_ investigation.12
The legislative history of the subtitle also manifests ~
legislative conc:arn that some victhns. of .chil\l a~Use, especially
very ynun9 ohild~un, might be further traumatized if they had to
tell their story over and -over again to different investigators.
Furthermore, prosecution might be made more difficult if a
defendant had a basis to assert that clwnsy questioning led a child
to embroider evente=. A school board s personnel investigation must
be conducted so as to confor,m. to tbe legislative inten~ about these
matters. Thus, we advi&e that an investigator for a .school board
should not attempt to interview the victim of alleged abuse without
f.the prior approval of the local oss or the police.
More generally, we are of the view that a school system's
,should be .conducted in a WllY .that Jl.inimizes
~~ . risk of . int~f~enc_e with ..~
.invest.~ittio.n., ..~? ~ ..which the
\~!neral Asa~ly ~as .iiven .P~imary attention. one ca.n envision
situations in which a school systems investigation might create
unintended problems for those engaged in tbe investigation under

f personnel investigation
the

Child Abuse subtitle

- if,

for

example,

the suspect

were

alerted prematurely that an investigation was under way, either

directly by the school system investigator or indirectly by a
witness contacted by the school syst~.
'l'o avoid thi:s risk, a
school system conducting a personnel investigation
of alleged child
abuae by an employe~ should
notify
the
local
DSS
or
the police
~f .
. -
.......----.
- -12 The Heward county Board of Education s policy properly
requires immediate report~ng. $ee Part !A above.

F.7) )

()C J

nc

The Honorable Thomas M. Yeager

December 17, 1991
Pa9e 13
its intention to do so ~nd should abide by whatever limitations
pr_imary investigative agency imposes, particularly
on contacts
...t:fie alleged abuser or potential witnesses.
In addition,
the
school
confidentiality of the information
S6(b) generally provides that "All
child abuse are confidential
Ar.tv='o aya1.om ma.y diaclo5e thw
circumstances set out in S6(b).13

the
vith

system.
must maintain the
that it gathers. Article 88A,
records and reports coneerning
"
(Emphasis added.)
'The
lnfo,:ma.'e16n only under
the

Finally,
a school system's conduct of a l)ersonnel heariftc,
. aimed~ d~Judicat1n;~a ~erits of an allegation of child abuse
.might conceivably pose a small risk of a collateral estoppel effect
on a subsequent criminal prosecut~on, if the personnel matter were
litigated and the employee prevailed . ~ile we doubt .that all of
t:h~requisite elements of collateral eit.oppel.voulc1 be found even
in "this situation, .we urge school .systems not t.o press forward with
I Ja final ~isciplinary
hearing without tne .concurrence cf t.hestate's
.: Attorney responsible tor any prosec:ution of the alleged. abuser 14

%%
a.coeas t.o Bvi.4ence ior 'DiaoipliDarJ' Bear1D;

..: ;. .J 11~

, .. ,/j,

. ;

'! ...
.--, ,,,_..,., ,..
/"
i;.....

We are not aware of any legal require~ent that the evidence

needed to sustain a disciplinary action against an employee must be
gathered by the employer, rather than obtained. from an agency
condct1n9"'"'8n investigation for a 4ifferent purpose. 'l'hus, if a
school system did not conduct its own investigation but instead
relied on th~ results of ~he investigation by the local DSS or the
police, .the school system ~~ ... Wll .. v.~.f:n sufficient evidence
indirectly to warrant dismissal of the employee.
In fact, the
General Assembly has provided a mechanism - albeit a cWtlbersome
one, as we shall explain - for a school system to obtain evi~ence
13 Thus, infor111ation encompassed by Article 88A, $6(b) would
. ordinarily be able to be introduced into evidence at a dl.scif l~nary
hearing only if the school system f.il:.s.t.. ~a.i~ed.
a ccur
rder
un,er S6(~)<1l authorizing that disclosure. ~ note 17 below and
accompanying ext.

14 Findings in a non-criminal p;oeeeding can give rise to

collateral estoppel in a subsequent criminal prosecution, at least
where the State itself is a party in the non-criminal case. ~ee
Bow!ing v. State 298 Md. 390, 470 A.2d 797 (1984}. The test or
app ying the coiiateral eAto el doctrine is set out in Washington

bub
A.2
o

c'

e,

281 Md. 1, l8-l9, 3?6

The Honorable 'l'homas M. Yeager

Oeeell'1l:>er 17, 1991
Page 14

concerning an investigation
is a school employee.

of child abuse where the alleged abuser

SBA, $6 (b) provides that information

contained in
or records concerning child abuse may l:>e disclosed to
"members of multidisciplinary
case consultation teams, who are
investigating a report of known or suspected child abuse or who
are providing services to a child or family that is the sul'>jeet of
the report."
The regulat_ions adopted pursuant to Article 88A, 56
define a ,pultidisciplinary team as a "group of professionals which
meets reqularly to provide consultation
and treatment planning
where appropriate, on cases referred from Child Protective
services, during the investigation or continuing service phase of
local department involvement." COMAR 07 . 02.07.17A. 'l'he loc:al DSS
is to contact appropriate "community agencies and sectc:srs" tc seek
Article

reports

membership on a standing multidisciplinary case consultation ~eam.

COMAR 01.02.07.178.
PersoMel from educational
agencies are
specifically included in the list of "aporopriat
COllJl\lni~r
"'Jl;l'D~iG," COMA!t 07. ea 0 7 1"/ B. 1:J
~

faot.

that

sehool

svstem

,...,.r,.n"-a.1.iYc

on

u,u

may have acceas to information concerning

the Qhild abuse investigation conducted !:)y the local DSS and the

11\llt.id.iavJ.l)ll.m.1.ry

~~Mil

police does not end the analysis, ~ecause the authority to obtain
information does not necessarily imply the authority to disclose it
tc others. Indeed, Article 88A, 56(b) provides that "information
contained in ,-ppn:i:ta Oli records conut:!1nJ.nq elliJ.d abuse or neglect"
may be disclosed only under certain circumstances to persons or
agencies specified in the statute.
As discussed above, one of
these is "members of 11ultidisciplinary
case consultation teams, wbo
are investigating a report of known or suspected child abuse or
neglect or who are providing services to a chil4 or family that is
15 Disclosure to
a school system _participant in the
multidisciplinary team is consistent with fecreral law. The Child
Abuse Prevention and Treatment Act authorizes grants to the states
for the/~ose of develo_ping, establishing and operatinq ~rograms
designe
to improv11 "(jLJ ~o hnndling ur chila a.buse cases,
par~l~Ularly cases of child sexual abuse, in a manner which limits
additional trauma to the child-victim; and (2) the investigation
and prosec:ution of child abuse, particularly
child sexual al:>use."

42

tr.s.c.

ss1osc(a) (1988).

Federal reglations
adoptec:1 pursuant to the Act require a
state to "prov.Use for the prompt initiation ot or appropriate
investigation
by a c~ild ~rotec.t.ive agenpy or otper crop~r~
c~nstituted autijorit~o su s~antiate the accuracy o al~repor
s
o
known or suspec ed child a~use or neglec~.
45 c.r.R.
l340.l4(d) (emphasis added). such investigations may include the
use of, among other thin9.s, "cons~tatiops with other agencies
and reviews by multidisciplinary
eams. 1'\. (emphasis added).

C.7JJ

nr,

rnr

?he Honorable Thomas M. Yeager

December 17, 1991
Page 15
the subject of the report." Article 88A, S6(b}(2). Ho~ever, the
statute does ngt provide authority for members of the
multidisciplinary team to disclose the confidential
information
contained in such reports or records to other persons or
agencies. 1'
Under current law, the only way for the school system to be
able to introduce this information at a disciplinary hearing is to
obtain, pursuant to Article 8BA, S6(b)(1), a court order
authorizing disclosure of the information at the hearing.17 The
!General Assembly may wish to consider amending Article BSA, S6 to
permit limited disclosure of investigative records in proceedinqs
under ED S6io2 or to authorize school system officials to attend
\ interviews conducted >:,y police officers or DSS employees.
~
Fossey, Child Abuse rnvestigations in the P:ublic sehoo1s, 69 Ed.
Law Rep. (991) (Nov. 21, 1991).16
%:tl
?maunity in Cbi14 abuse C&s
FL SS-708 provi4es that any person who akes or participates
in making a report of abuse or participates in an investi9ation or
a resultin; judicial proceeding "shall have the immunity described
\.\nla:r S&-362 [of the cow:ts Artlull!
("CJ" Art1eleJ J' trom civil
liability or criminal penalty." CJ SS-362 describes that immunity
as follows:
Any person who in good faith makes or
participates
in making a report of abuse or
neglect under SS-704 or ss~705 of the Family
taw
Article
or
participates
in
an
investigation
or a
resulting judicial
proceeding is i~une from any civil liability
or criminal penalty that would othe%Wise
16

offense.

Improper disclosure of this information is a criminal

Artlcle BSA, 6(e}.

17 In order to preserve the confidentiality of that sensitive

information, the scliool system should seek an order providing that

the hearing be open only~o the parties and their ra_presentatives
and that tne record be sealed. Finally, the proposed"order should
provide that any person who furthe:t discloses the 1.nform.ation
outside of the hearing be subject to appropriate penalties.
18

Such an amendment c::ould be drafted in conformity with

confidentiality
requirements of federal
law.
.@.@. 45 c. r.R.
l340.14(i)(3).

The Honorable Thomas M. Yeager

December 17, 1991

Page 16
result
from making or participating
in a
report of abuse or neglect or participating in
an investi,ation
or a rasultinq judicial
proceeding. 9
We have no doubt that a school system conducting an internal
investigation of suspected child abuse to determine whether to take
disciplinary
action against
an employee would meet the test of
"good faith." Catterton v. Coale, 84 Md. App. 337, 579 A.2d 781

cert. denied,

{1990),

However,

c:r

321 Md. 638, 584 A.2d 67 (1991).

SS-362 specifies

that

immunity extends

to

any

person who makes a report of abuse under FL SS-704 or SS-705 or

participates
in an investigation or resulting
judicial
prcr:eeding.
The implication is that the immunity is 'extended only to persons
who foll9w the proc~d31res outlined in the Child Abusesubtitle.
As
discussecl in Part I above, al though a sg_hc:to.l.. syst~m may conduct an
independe~t pe;r~onnel invest'iqat.i"o~; !t does so under the authority
of the Education Article,
not the Child Abuse subtitle.
FL SS-708
offers no i111munity
to persons operating outside of its proceclures.
Two other

qrants

of immunity idght

apply,

however.

Under CJ

SS-353(e), employees of a school system are generally not liable

individually
for damages resultin9
from their tortious acts or
01nissions,
if
the employee "aot[sJ
within
the
scope
of
emploYJllent.20 And under ED S6-109(b) and CJ S5354(b), employees
a.re generally
not
liable individually
for
actions while
"participat[ing)

proceeding

in an employee

,"

if

the

dismissal
(or] disciplinary

is "[w)ithin
the scope of

action

employment."
Broadly speaking, an employee acts "within the sc(?pe Qf
e~ployment" if-the-employee--wa.s-advanci-n-q-li1s master's interests
in doing

what he did at

Food. Ins.:, 26 Md. App.

the

time

he did

it."

RusnaScJs

v. Giant
denied, 275

250, 265, 337 A.2d 445, ~

*''

au. !11.2 Dhanray v. Potomac Elec, P.ower

. ~,
488 A.2~ ,12 (iYH~J. A school board employee who
investigates an allegation of child abuse at the instance of a
supervisor
is acting
in furtherance
of the school
beard's
interests,

Md. 755 (1975).

M~- App. 941 ,,,

19 ED S6-109(a) and CJ S-354(a) (1) together provide a

separate grant of immunity to scbool employees wno report alleged
child abuse as required by FL SS-704. H"owevet', these immunity
provis;ons.
do not extend to an employee's participation
in an
1.nvest1gat1on.
20

As is usual with statutes

of this

kind,

an employee remains

liable for gross negligence and malicious actions.

~7))

()c;")

oc

The Honorable Thomas M. Yeager

December 17, 1991

Page 17
Hence, a sc::hool system employee, acting in good faith on

;n~trua~Lona of a mup~rviso~, wu~l~ l1e able ~o

as~ert 1mmunity for

tortious acts or omissions in the course of an independent

investigation of alleged chi1d a~~se by another board employee.
'I'he school-board. itself would face liability up to the limits set
out in CJ S5-353(b).

Liallility for interference With Chi14 ~use

A.

Investigations

criminal

We are aware of no provision in the Fa111.ily Law 'Artic.. le or

elsewhere in the Maryland Code that impose$ a criminal penalty for
interference with the child abuse investigation conducted by the
local DSS and the police pursuant to the Child Abuse subtitle.
Under some sets cf facts, the offenses of obstructing or hindering
a police officer or obstructing justice might be applicable. s~e
Cover Y, state, 297 Md. 398, 466 A.2d 1276' (1983-); Sibiqa y, state,
65 Md. App. 69, 499 A.2d 485 (i98S);

Mayne y. State,

45 Md. App.

4:14 A.2d 1 ( 1980). However, pr_pv~ng

the :requisite criminal
intent-would-be--extreme-ly~---un11Jtiiy when the alle9~d interference
occurred during a school system's own investigation. conducted for
483,

the legitimate purpose of pursuing potential

disciplinary action

against an employee.

a.

Ci.,il

The State Board of Education has statutory authority to

inst.itute legal proceedings to enjoin a county board of education
from engaging in certain practices.
'l'he state Board "shall
determine the elementary and secondary educational policies of this
state11 ancl "adopt bylaws, rules,
and regulations
for the
administration

of the public

sohoola."

ED 52-205 (b) (1) and (c) (1).

Properly adopted bylaws, rules, and regulations "have the force of

law" and apply to each county (except, in some instances,
to
Baltimore City). ED S2205(c)(2) and (3). The state Board is
authorized

to inf'.:td+-n~q lga:L pregoociin9c,

rules, and regulations.

1:o cnforc:e

its

1'}'ldws,

ED S2205(d)(2).

The duties of each county board of education are enumerated in

ED 4-107. These duties include determining, with the advice of
the county superintendent, the educational policies of the county
school system.
ED 54-107 (3)
This determination, however, is
"[s]ubject to the applicable bylaws, rules and regulations of
the State Board." ED S4-108(a).

.. - .

- . . - - .

The Honorable Thomas M. Yeager

December 17, 19~1

Page 18
The state Department of Education has issued a model Child
Abuse and Neglect Policy, revised in Deceml>er, 1990. The portion
of the policy concerning investigations of suspected child abuse
a~ates as follows:
Validation of suspected child abuse is the
responsibility of the department of social
services, assisted by the police.
School,

personnel

internal

shall ~

at.tempt ~

inv~st;qation a&: ~

review of the facts.

conduct Anx

independent

Policy at 10 (emphasis added). Furthermore, the policy recognizes

the use of a multidisciplinary te~:

'l'he local department of social services shall
notify school reporting sources of the receipt

r: _.,,.. . ,,,' -;.

,..

rof the report. School personnel may -re;ues~

I
..
.
,.,, ,, . } the local department of social services to

,-":'" ' ". , . .1~ J .

..,_.,..

\ call a multidisciplinary team meeting t.o share

information
and concerns to the extent
permitted by the confidentiality statute and
to coordinate planning for services to the

child.
Appropriate school.personnel are
expected to participate in the team meetin9s
in accordance with the procedure established
between. the
local
departaent
of social
services and local school system.

Policy at 11.
This pol~QY, hawaver, is merely a recoJQJDendation by the staff
cf the State Department of .Education, which local sehool systems

at their dia,..,.o+-i~n.
De p1iay
ia
"bylaw, J:'Ule, or regulation of the State Board.

aay adogt

noL au uff1CS1&J.

~hus, while the

.polic:., .. adopted &,y t.b Boward .County Board of .Education on June 27,
1991,
inconsistent with th, State m~el policy, the State Board
has no basis to institute legal proceedinqs aaainst
the Rm,-illrcl
County Burd rcr such noncompliance.
.

is

v
conflict of In~eresta

Federal regulations
adopted pursuant to the Child Abuse
Prevention and Treatment Act r,aT,;r. ,:91:'i;a,in prooc.dure.s to lA:!
followed in cases where an apparent conflict of interest
is

~r,.

1'I'\"

The Honorable Thomas M. Yeager

December 17, 1991
Page l9

involved. Specifically,
"when a report of known or suspected child
abuse involves the acts or omissions of the agency, institution, or
facility to which the report would ordinarily be made, A di(fe~ons
~er~
son~rit\od quthoritv mus~ rceive and investigate the
report and take appropriate protective
and corrective action." 45
C.F.R. S1340.14(e) (emphasis added).
Although no Maryland statute discusses conflict of interest
concerning investigations of suspected child abuse, regulations
adopted pursuant to the Child Abuse subtitle provide for special
procedures to be followed so as to avoid the appearanee of conflict
"[W]hena report of abuse involves acts of an eniployee of the State
or of a local department in the performance of the empi nyQ' s
dutiRA .. " QOKan 01.02.07.06D.

No statute or regulation
precludes a school system from
designating its own employees to conduct a personnel investigation
of a fellow employee. If such an internal investigation
is thought
to pose an actual or apparent conflict of irat.erest, the General
Assemk>ly is free, of course, to mandate alternative procedures.

ConcluaioD
In suramary, it

is our opinion that:

1.
A county board of education has authority to implement a
policy autho:z:-izing a local school system to conduct an internal
personnel
investigation,
independent of the one conducted by the
local DSS or the police,
if the suspected abuser is a school
employee. However, the personne1 investigation
must not take place
until after the alleged abuse has been reported and is subject to
wh~tever lim.ttations--.a~.e_JJilpA.sed.
by the local oss or the police.
Information about the .alleged abuse obtained during the internal
investigation is subject to the confidentiality requirements of

Article 88, S6(b).

2.

In

accordance

with

ED S6-202,

tenured

employees may be suspended or dismissed for committing

A county

,1f~!,
~..... ,-<'!'}'~

av_.,.,,.~J,

superintendent

of schools

need not

school system
child abuse.

conduct

an internal

investigation of the charges in order to introduce evidence at the

administrative
hearing.
Rather,
evidence
obtained by school
personnel in their capacity as membersof a multidisciplinary
team,
properly authenticated,
c:.~1' .. Pe. _;nt;~duced at the hearin_g...:
Under
current
law, however, the superinteriaeriF1nust g~a court order
authorizing
disclosure
of this confidential
infonnation
in the
administrative forum.

-----


The Honorable Thomas M. Yeager
December 17, 1991
Page 20

3.
Maryland law provides only
board of education that conducts a
allegations of child abuse by one of
of the local board carrying out the
be immune from personal liability.

limited immunity for a county

personnel investigation into
its employees. The employees
investi9ation, however, would

4.
Al though the Family Law Article provides no penal ties for
interference
with a child abuse investigation, under certain
circumstances
a person could be charged with the common law
offenses of obstructing a police officer in the performance of duty
or obstruction of justice. These circumstances are most unlikely
to a~ise during a school system's personnel investigation, however.
With rCfli:lZ'd to civil sanctions, the State Board. of Education has no
legal authority to require local school boards to adhere to a model
State policy. not embodied. in bylaw or regulation, providing that
a local scho l system is not to conduct an internal investigation
of child abuse.

s.

In child abuse . cases vhere a report

of suspectcu:l abuse

alleg~a that the abuser is an employee of an agency charged with

responsibility for investigating the report, the other responsible'
investigative agency must conduct the investigation in accordance
with procedures desi~ned to avoid the conflict of interest.

Very truly yours,

~$~r,
',
Ph curran, Jr.
. orney . General
~
. ,.i~~c"~

!:;;.~ack"Schwartz
- Chief counsel
Opinions, Advice

~R.~
Donna Jt. Heller
Assistant Attorney General

6GLL 0L

t0

15ft
r:,... .1/,"i ''~--~:; ~:i _ .. )
. child has-been.subjected to .... abuse .....?the obaer.ver has a -legal duty to report the incident to. the- local department. of
social services or a law enf"orcement agency. 5-704:and 5EDUCATION.:.._ PUBUC''SC:liOOI.S- CHILD ABUSE
1
INVESTIGATIONS - PERSONNEL......:PUBLIC' IN- . 705 orthe Family Law ("FL") Article-, Maryland eode.
"Abuse"
includes
"sexualabuse
of
a
child'.
.
.
;:"
'FL
5FORMATION ACT-DISCLOSURE'TO
PARENTS OF 701(b)(2). A "child" is an individual undei: therage..of:.18.. FL
INAPPROPRIATE" REI::ATIONSHIP - BETWEEN.
5-701(d). 2
, .
.
'

. ; 'i _ 'r1
TEACBERAND STUDEN'E'
. . .
- -
As
we
wrote
ma
lengthy
opinion
some
years ago; the prl
Cite.aa:c82O=
ofthitA~;
~~1997)
(OpinioO:
maey responsibility for investigating alleged _child abuse J>y
No. 9T-023 (Sep
m, 1997)] .. ,
.
.
. _ .
a school system employee ill that of the local department
and the police. 76 Opinions of the. Attorney General
~ ...
_. (1991) [Opinion No. 91-056 (December 17; 199-1)). Al ,.. ': .
_ -~ _
Se~~ber 19,.i997
though a school system may _conduct its own internal perThe Honorable Joseph M. Getty
- - _.,
sonnel investigation of alleged child.abuse-by an employee,
P.O. Box.398
,. , ,: _ - ,;.
~.
it.may do so only under limitations intended to assure the
Manchester, Maryland 21102-0398

, . . ..
primacy of the investigation .by the l11c:ai'.department and
. .-You.haverequested our opinion.aliout a public school's obthe police. Opinion No. 91-056; at 2-3. Among other tl_iing~,
ligation to notify the parents or a student when it learns or a
we advised that the school system should not ~interview the \ ,
potential romantic relationship between a teacher and a
victimofthe alleged abuse, the alleged abuser, or-any petenstudent. Specifically, you.ask whether a school.system is recal witness without the prior consent of the local' [depart
quired to notify the parents of a. stuaent. under these cirment] or the police." Opinion No. 91-056, at: 3. Wei also ad
CUJDBtances and, lC so, whether it must do. within a parvised the school system to "keep confide'ntial' any
ticular time frame. You also ask whether the legal
information about the alleged.child abuse that:it learns durobligations of the school system are aft'ected: if the student is
ing the course of its internal investlgatfon/ . fd: ; .; - - . !
18 yean of age or older.
. . . . . . . , __
Although the school system should not:discloseto parents
Our opinion la as folloYt'.s:. If the ld~on
involves an in- . information that it may have learned about alleged: child
vestigation of alleged child. abuse by a teacher, the parents
abuse by a teacher, notification to the parents-wilLocc:urby
should be told of the situation within 24 hours. The respondifferent means. Under FL 5706(b)(2); within 24:hours-'afsibility for notification, however/lies with the local departter receiving a report of abuse, the local deparbnent or law
ment of social services ("localdepartment") or-_the police deenforcement agency must "attempt to have-an.on-site inter
partment, not the school system. If there is no issue of child
view with the child's caretaker." This interview.would unabuse, a school system may notify -parents of the observed
doubtedly entail disclosure about. the. lncident,J;etween
.
circumstances concerning th97 student's-. behavior or other
teacher and student that gav~.rise to the investigaj;ion.. ..
student-oriented. information, .. without, however, disclosing.
A child abuse investigation may concern a student whe, at
information from-the teacher's personnel record. These con.
thetime of the investigation, is 18-yeanrofage-orolder.In
clusions, apply. whether. or not the student has reached the
78 Opinions of the Attorney General
.. (1993) [Opinion
ap_of18.

No. 93-049 (December 3, 1993)], we concluded that the child

abuse reporting law applied whenever there. was reason to
:" .. ....
.. -. Background
believe that child abuse had occurred in the past;._even: if,
when the incident came to light, the alleged: victim.was no
According to press ac:co~ts. two years ago a custodian at
longer a child. Thus, even if a student is 18 years cir age or
a high school in Carroll County saw a female student and a
older. the conclusion stated above--that. responsibility- for
male teacher together. one-evening at the school. The eustodiscussing the situation with the parents _ rests with the lodian was suft'lciently concerned about the situation to notify
cal deparbnent or law enforcement agency; not the school
the principal. Apparently,_ the school system investigated to
system - would apply.

determine whether the teacher had violated school system

nr
policies prohibiting inappropriately personal relationships
between teachers and students. The parents or the student
Parental Notification Apart From. ChildAbuae
Allegations.
. .
.
were not promptly notified of the custodian's observation orof the school system's response.
Under some circumstances, contact between a teacher
When the parents later found out about the incident, they
and a student may not give rise to reason to believe that
expreaaed deep concern to the Board of Education or Carroll
abuse bas occurred but might be grounds for discipline of
County that they had not been promptly notified. As the
the teacher. For example, as noted in Part I above, the Car
b~ard undertook a reyision of .its policy on teacher-student
roll County school system has a policy prohibiting inapprorelationships, the issue of parental notification took on
priately personal relationships between teachers and stugreater significance. Your opinion request seeks clarification
dents, even if the relationship la not sexual.
of the circumstances under which State law requires or auIf no investigation of alleged-child abuse- is under way, the
thorizes parents to be notified of ari incident evidencing
school system is not constrained by the considerations diswhat may be their child's inappropriate relationship with a
teacher.

OPINIONS.

so.

D
Parental Notification of Child Abuse Allegations
If the nature of a relationship between a teacher and a
student causes an observer to have "reason t.o believe that a

1 FL 5-704 is applicable to educators," among other professionals.

.
I A general account of the cireumatal1ces under which a. teacher
may be charged with child abuse may be found i.D 82Opinions of
the Attomey General
(1997) [Opinion No. 97-017 (August 19,

1997)].

MARYLAND REGISTER, VOL 24, ISSUE 23 FRIDAY, NOVEMBER 7,.1997

?HEAT.rORNE'f.'.GENERA~

cussed. in Pm:t II above. A.school system, howevei; does. not;

have unfettered discretion to disclose information about.its
investigation 0 an. inappropriate. relationship between II
teacher. and a student. Rather; any disclosures musr be.tailored to comply with a statutory prohibition againstdisclosure "ofa personnel record.of an individual." 10-616(i)(l) or
the State Government ("SG") Article. The text. of this, prohibition is as follows:
.
0) Subject ta paragraph (2) of this. subsection,. a . : -,
custodian shall deny inspection of a personnel
record of an individual, including an application,
performance rating, or scholastic achievement information. .
..
(2) A custodian shall-permit inspection by:
(i) the person in interest; or
.
.
;'.
(ii) an elected or appointed official who supervises the work of the individual.
.
.
"The obvious purpose of[SG 10-616(i)] isto preserve the
privacy of personal information about a public employee
that is accmnulated during his or her employment." 65
Opinions of the- Attornev General 365, 367 (1980 l. See also
680pinions of the Attorney General 335, 338 (1983). The
term "personnel records," we have explained, includes "not
only the papers contained in the employee's official personnel me ... but also papers relating to a personnel matter in
the hands of an authorized custodian. ... No custodian may
permit access to such records other than to a person or persons permitted access by Jaw." 78 Oninions of the Attorney
General_( 1993) [Opinion No. 93-048, at 3 (November 18,
1993)]. In that opinion, we concluded that a complaint of.improper behavior lodged against employees of a court clerk's
office was a "persennel record" that could not be made pub
lie. That conclusion applies squarely here. A school system
may not disclose to parents the contents of a teacher's "personnel record."
Despite it.s breadth, the prohibition against disclosure of
"personnel records" does not block all disclosure. First, the
term "record" is limited. to "documentary material." SG 10611<0( 1).3 First-hand observations, by contrast, are not
"records." As we pointed out in another opinion, "observable
facts that exist independently of"... a record .... "' were not
within the scope or a statute prohibiting disclosure of certain juvenile "records," 78 Opinions of the Attorney General
_(1993) [Opinion No. 93-038, at 4 (September 24, 1993)].
Therefore, a school system has the discretion to tell parents
what observers have seen or heard about a st;udent's behavior,. including observed behavior involving a teacher. This is
not disclosure of a "personnel record," even if the observations are subsequently reduced to writing and become a
"record. "4 A school system might, far example, establish a
procedure requiring an immediate oral report to a school administrator of any apparent violation of the policy barring
intimate relations between a teacher and a student. Assuming that the report does not suggest possible child abuse,
the administrator may then notify the parents of the report,

159~

because the information about: ilieu: "child: undoubtedly

would be important to the parents. Thia procedure wouldbe.
separate from any process oriented toward potential employee discipline and would not involve disclosure of. the
contents of a "personnel' record. n
Second: even after a- school system 'receives or creates
"documentary material'.' thaf would be, under the law,.~cari";.
fidential "personnel record," the school' system m"ay 's'till
have discretion to disclose some- information to parentii:"Jr,
for;example, a school system receives information about a
student during the eourseiof a personnel investigation of a
teacher, the school system may disclose that student-related
information, so long as it preserves the confidentiality of
employee-related information derived from a "personnel
record."
We acknowledge that these distinctions - between an
oral report and a written one, and between student-related
and employee-related information - seem artificial and
may.,be hard. to administer. Nevertheless, they are distiitcl,,.
tions intended to reconcile, as best we can, the prohibition
on disclosure of "personnel records" and the need to preserve as wide a. zone of discretion for school officials as possible.
.
A school system has Ka special duty to exercise reasonable
care to protect a pupil from harm. n Lwnsford v. Board of
Educ: 280 Md. 665, 676, 374 A.2d 1162 (1977). See also ColTliisv. Board of Educ .. 48 Md. App. 2J.3, 218, 426 A.2d 10
(1981) (school authorities have a common law duty, "as the
temporary custodian of children, to exercise reasonable care
for their protection"). A student's involvement in an inappropriately. personal relationship with a teacher may foreshadow sexual involvement or same other serious situation
requiring swift. parental intervention to protect the student
from psychological or physical harm. Cf. Eisel v. Board of
Educ., 324. Md. 376, 597 A.2d 447 (1991) (duty to inform
parents of report of student's suicidal statements). Despite
the barrier of the "personnel reeords" confidentiality law, a
school system does have room to make the disclosures that
will help safeguard children.5

lV

Conclusion
I,
In summary, our opinion is as follows:
1. If there is reason to believe that a child has been subjected to child abuse by a teacher, the school system should
not notify the parents. The local department or law enfon:ement agency is responsible for doing so.
2. If there. has been no allegation or child abuse but instead a report suggesting an inappropriately personal relationship between a teacher and a student, the school system
may provide immediate notice to parents of observed behavior involving the student or other student-oriented information. The school system, however, may not disclose the contents of documents created or received in the course of a
personnel investigation of the teacher or other personnel
records pertaining to the teacher.

The opinion about the clerk's office employees,for example, con

cerned written documentationof allegedlyimproper conduct.. Opinion No. 93--048, at 2-3.
'The definition ofKeducation ~rda" in the federal Family Educa
. tional Rights and Privacy Act of 1974 likewise focuses on documentary material maintained by a school. See 20 U.S.C.
1232g(a)( 4)1Al. See ~enerally Belan,r v. Nashua:-NewHampshire
School Dist., 856 F.upp. 40, 49 10 .. 8. 1994> 1reatmg legis1at1ve
history). In any event, parenta have a right of access to their child's
education records, at least if the child is under 18 yems of age. See
20 U.S.C .. l232g(b)( ll(H) and (d}.

In exceptionalcases, a schoolsystem's common law duty to protect

a student from harm might even require disclosure to parents of
informationderived fn>m a "personnel record.~ Disclosure, under
those c:ircumsta.aces, might well be viewed by the courts as "otherwise providedby law." SG 10-616(a). In an opinion that necessarily
is limited. to general guidance, however, we C811110t speculate about
the particuJar circumstances that mightjustify this additional degree of disclosure.

MARYLAND REGISTER, VOL 24, ISSUE 23 FRIDAY, NOVEMBER T, 199T

Top executives did not report suspected Scout

abuse cases, files show
By JASON FELCH, LOS ANGELES TIMES
DECEMBER 30. 2012. 3:25 PM

n 1987, a Scoutmaster at a camp in northeast Georgia was accused of fondling a boy in a

sleeping bag.

The local Boy Scouts executive, Wayne Brock, followed Scouting procedures and documented the
allegation before forwarding it to the group's Texas headquarters, where it was added to
confidential files on leaders suspected of molesting children.
The Scoutmaster was expelled and left town in a matter of days. The police were never told,
interviews and records show.
DATABASE: Search the "perversion" files
Today, Brock is the chief executive of the Boy Scouts of America.
As he and his recent predecessors rose through the ranks of Scouting, they handled at least 120
cases of suspected sexual abuse dating from the mid-rczos, according to a Times analysis of
confidential Boy Scout files.
As district executives, it was their job to gather evidence and witness statements, determine
whether to recommend a leader's expulsion and report their findings to headquarters, which made
the final decision.
VIDEO: Victims speak out
In the process, the officials had a front-row seat on cases in which Scouting's abuse-prevention
policies failed.
Although the officials may have followed Scout policy and violated no laws, the files in several cases
indicate that they did not inform authorities - or their communities - of suspected child
molesters who were expelled from the organization.
The Boy Scouts would not make Brock or the former chief executives available for interviews.
Brock did not return caUs to his home and cellphone.

In a statement, a spokesman said it was impossible to comment on specific, decades-old files.

Instead, the spokesman highlighted the executives' contributions
including the requirement

to abuse-prevention

policies,

in 2010 that any suspicion of abuse be reported to police.

Faced in recent months with the public release of hundreds of files by court order, Scouting
officials have acknowledged that "in certain cases, our response to these incidents and our efforts
to protect youth were plainly insufficient, inappropriate, or wrong."
Brock was a regional executive in the Appalachian foothills of Georgia when allegations surfaced
that Scoutmaster Peter A. Gross had fondled a boy.
The alleged molestation was witnessed by another Scout, who confronted Gross "in the act," boys
in the troop later told a parent, according to an account in the Boy Scout file on the case.
Gross gathered the boys together and "told them not to tell anybody and that he was having a
dream of a pretty lady and that was why he was 'playing with the Scout' in bed with him," the
account says.
A few days later, Gross told a Scouting official a different story: The Scout had fallen from bis bunk
during a "terrible thunderstorm," according to the file. "I had him sleep with me to calm him.
Nothing else happened!"
In a recent interview, Gross said that story sounded far-fetched and insisted he never told it. He
denied fondling the boy and said he can't explain why the troop accused him.
Brock forwarded the allegations to Scouting headquarters. The file contains no indication that
Brock or other Scouting officials notified law enforcement. The Rabun County sheriffs office said
they had no record of being told, and Gross and a local Scouting official said they were never
contacted by authorities.
On April 8, 1988, headquarters notified Brock of Gross' expulsion. Four days later, a change in
Georgia law went into effect requiring employees of youth organizations to report suspected abuse
to law enforcement.
Because Brock learned of the alleged abuse before the new law took effect, it isn't clear whether he
was required to report it to authorities.
J. Tom Morgan, a former district attorney of DeKalb County and coauthor of the law, said it was
unlikely to be applied retroactively, even by a few days.
Melissa Carter, director of Emory University's Barton Child Law and Policy Center, disagreed: "If
he had reasonable cause to believe a child had been abused, that is knowledge that persists over

time," she said. "That was no different on April 8 than on April 13.

11

Carter and Morgan agreed on one thing: Brock should have reported the allegations to police.
Days after being accused, Gross said, he moved to Florida for a few years. Today, he is a truck
driver living 20 miles from where the alleged incident took place.
Few know about the allegations, and Gross, who has no criminal record, said he hopes it stays that
way.
"I was fortunate that it didn't go any further," Gross said. "I was thankful for that."

Brock's predecessor, Robert Mazzuca, spent two decades as a regional Scout executive in California
and Pennsylvania. He sent an average of one case a year to headquarters detailing allegations of
child molestation.
One of Mazzuca's cases involved David Cooley, an assistant Scoutmaster in a Pittsburgh suburb
who was expelled in 1997 after police discovered he had made videos of himself having sex with
boys. Cooley pleaded guilty to molesting three boys and was sentenced to up to 54 years in prison.
Mazzuca and his superiors learned only later, after Cooley's arrest, that he had been convicted in
1987 of molesting a South Carolina boy and served three years in prison. Scouting did not require
criminal background checks for volunteers at the time.
Mazzuca told reporters at the time that screening of volunteers was the responsibility of the local
nonprofits or church groups that sponsored the troop, not the Boy Scouts.
A decade later, when Mazzuca was chief executive, the organization began requiring all volunteers
to have criminal background checks. Mazzuca retired in September.
His predecessor, Roy L. Williams, handled at least 13 abuse allegations while serving as a Scout
executive over three decades in Arkansas, Kansas and Rhode Island, records show.
In 1990, Boy Scouts headquarters asked Williams to obtain a written statement from an alleged
abuse victim in Rhode Island. The former Scout, by then an adult, said he and his younger brother
had been raped in the 1970s by a longtime Scout leader, Father Edmond Micarelli.
Williams sent the statement to headquarters, leading to the priest's expulsion from Scouting. There
is no indication in the file that he reported the alleged rapes to police or looked into whether
Micarelli, who had been active in Scouting as recently as 1988, had other victims in the Boy Scouts.

In 2002, the Diocese of Providence paid $13.5 million to 36 victims who sued Micarelli and 10

other priests, alleging sex abuse dating to the 1970s. Micarelli, who is retired in Florida and has no
criminal record, could not be reached for comment.
While Williams was chief executive from 2000 to 2007, the Boy Scouts encouraged volunteers and
parents to take abuse prevention training.
Jere Ratcliffe served as Scouting's chief executive from 1993 to 2000, a period when the
organization began hosting an abuse prevention symposium and publishing information about
sexual abuse in the Scout handbook. Earlier in his career, Ratcliffe handled more than 65 cases of
alleged abuse as a regional executive in South Carolina, Missouri, Alabama and Chicago.
In most of the cases, Scouting officials learned about alleged abuse from law enforcement or
newspaper reports. But in several cases where Scouts received reports directly from victims or their
parents, there is no sign the allegations were reported to law enforcement.
In one, the failure to report abuse may have allowed a suspected serial child molester to abuse
again.
In 1982, Ratcliffe learned that Birmingham, Ala., Scoutmaster Ricky C. Partain had allegedly made
sexual advances toward an n-year-old boy he had taken to a wrestling match, the Boy Scout files
show.
The boy had shared a bed with Partain at the house of an acquaintance, who heard the boy
shouting, "No, no, coach - you can't make me do it!" the file says.
Ratcliffe could not find Partain's name on a registry oflocal Scout leaders and apparently let the
matter go, according to the file.
Two years later, when a new complaint emerged, Ratcliffe learned that Partain had been working
in a local troop all along. Parents of one Scout alleged that Partain had fondled the boy twice while
teaching him to swim.
In September 1984, Ratcliffe sent a confidential report on Partain to Scouting headquarters, the
files shows. There is no indication he informed police.
In 1989, records show Partain was convicted of molesting an 11-year-old girl and today is
registered as a sex offender in Alabama.
jasonjelch@latimes.com
Copyright 2015, Los Angeles Times

The homeless student must remain enrolled in the LSS

during the dispute resolution process. If the dispute
concerns school selection or enrollment, rhe school
system shall immediately admit the homeless student
ro the school in which enrollment is sought, pending
resolution of the dispute. Theschool system shall also
provide transportation ro the parcnr-selecred school
ior the duration of the: dispute resolution process. The
school shall provide to the parent, guardian, or unaccompanied homeless youth a written explanation of
the school's decision regarding school selection or
enrollment. including the right to appeal. The LSS
shall refer the homeless student to the LSS coordinator, who shall assist with carrying om the dispute rcsolution process. ln the case of an unaccompanied
homeless youth, the homeless liaison shall ensure that
the vouth is immediately enrolled in school pending
resolution of the dispute.

AH

homeiess

Duration of Services for Homeless

Students
All homeless children and youth arc eligible to receive
services under the Education for Homeless Children
and Youth program. A child or vouth who ceases to
be homeless rnav continue to receive services until the
end of the period of time for which service was origi
nally intended to he provided, which may be the end
of the school year. A homeless child attending an
after-school or summer program who moves into a
permanent residence may remain in the program for
the rest oi that school year to the extent feasible. LSSs
must determine on :1 casc-bv-case basis whether to
continue services for these children and youth.

Source: 42 U.S.C. 11431. et seq.: COMAR 13A.05.09.

chHdren and

vouth are eiicible tc

I

receive services under the Education for

Homeless Children and Youth progran~.

C~ild Abuse _and Ne_g_l~~t

Reporting
Am educator who has reason tr believe that a child
has been subjected to abuse has a duty to notify the
local department of social services or the appropriate
law enforcement agency. Any educator who has reason
to believe that a child has been subjected to neglect
has a duty to notify the local department of social
services. :\hi. Code Ann .. Fam. Law 5-704. Educator
means am professional employee of anv public,
parochial, or private educational agcncv or institution.
M<l. Code Ann., Fnm. L1w ~,-701.
Any good faith reason to believe that abuse or neglect
occurred should he reported without attempts to do
further investigation, interrogation, or any orhcr verification. Direct knmvlc:d~c: of abuse or neglect is not
ncccssarv for reporting purpose,. The educator must
irurnediatcly nnrity and g1vc all required information to
the school adminisrraror or that individual's dcsignee,
The repnrting requirement applies w everv incident of

suspected child abuse or neglect, even if the reporting

source knows that the tamilv is known to the local
departmenr of social services. /\Id. Code Ann .. Fam.
Law 5-704.

An educator must report orally. hv telephone or direct

communication. to the local department oi social
services or law enforcement ac.:nC\' as soon as possible. The educator must file a wrincn report with the
local dcpartmenr of social services or law enforcement
a!!'ency within 48 hours liter the contact. If abuse is
suspected, a copy must aiso be senr to the State's
Artorney's Office. The: individual making the report
should include the; following information, to the extent
possible: name, age, anrl home addrcs, of child: name
and home address of child's parent or person rc::spon
siblc for child's care; whereabouts of child; nature and
extent of abuse or neglect. includinjz anv evidence or
informanon available tn the reporter concerning possible previous instances of abuse or ney,lcct; and anv
other information that would help dcrerrniuc the cause

19

of the suspected abuse or neglect and the identity of

the r,crson responsible for the abuse or neglect. Md.
Code Ann., Fam. Law 5- 704.
Educators who fail to report suspected child abuse or
neglect may be subject to professional sanctions by
their licensing/ certification boards. For those who do
report, the law provides protection ior persons who
make "good faith" reports by providing immunity
from civil liability and criminal penalty. Md. Code
Ann., Pam. Law 5-708. The Department of Social
Services (DSS) may not identify an educator who is a
reporting source without the consent of the individual,
unless the reporter's idcnriry is necessary for determination of a court issue and has been court ordered.
Disclosure in a court proceeding would generally be
limited to legal counsel. COM.AR .07.02.07.19. (See
Appendix F: Individual Employee Responsibilities for
Reporting Child Abuse and Appendix G: Child Abuse
and Neglect: Know Your Responsibility).

By School System: t\ school system may conduct an

internal personnel investigation if the suspected abuser
is a school employee. However. the internal investigation must not occur until after the alleged abuse has
been reported. DSS personnel and/or the police
should be notified of the school system's internal
investigation. The investigation is subject to whatever
limitations are imposed by the police or DSS. The victim of the alleged abuser and potential witnesses
should not he interviewed without prior consent of
those agencic.:,.

Records

Removal of Child

Child abuse and neglect reports arc not a part of the

student's education record and should be maintained
separately. Because child abuse and neglect report~ are
not part of the education record, they are not subject
to the disclosure and other requirements of FERPA.
Such records are, however, subject to State law concerning the confidentiality of child abuse and neglect
repmts. School systems may not share anv child abuse
information without the consent of the local protective services or law enforcement agencies. Tile law has
:1 criminal penalty punishable by fine not exceeding
S50(1 or impnsonment nm exceeding 9(1 davs, or both.
.Md. Code Ann., Fam. Law 5-707; Md. Ann. Code art.

Police or protective services workers may remove ;1

student from school grounds based on a child abuse
or neglect investigation if DSS has guardianship of the
child or possesses a court order. A joint decision hy
the principal and the protective services worker should
be made regarding who will notify the
parents/guardians of the action to remove the child
from school. Usually the notification is made as part
of the !'rotccme services worker's contact made to
arrange the farnilv interview. In the absence of a joint
decision, the superintendent or designee shall ensure
that prompt notification or removal from school rs
made to the student', parent/guardian.

881\, 6; COMAR 07.02.07.19;\.

Investigation
Hy Department of Social Services (DSSJ: State law
requires that the local DSS conduct a thorough investigation to prorecr the health, saferr, and welfare of the:
child. This investigation process includes a safety
determination ot' all the children in the care of the
alleged abuser or neglecter.

If a child is questioned by the protective services

worker and/ or police during the school clay on school
premises in an investigation of child abuse or neglect.
whether the child is the alleged victim or a non-victim
witness, the superintendent or dcsignee should consult

20

with the individual worker to determine whether a

school official should be present and whether the p:trent/ guardian should be informed of the investigative
questioning. The school is not required to notify par- -,
ems/guardians of invesrigarions of child abuse or neg
leer on school premises, 1t may be determined that disclosure to the parents would create a threat to rhe well
being oi the: child. COMAR 13r\.08.Ul.13.

In the absence of arrest or allegations of child abuse

or neglect, school officials may not authorize the
removal of a child from school grounds without con
sent from the parent/guardian, even if the police officer wishes to remove the child from school grounds
for investigative qucsrioninp,

Source: Md. Code Ann., Fam. Law 5701. 5-704, 5-707.

5-706: Md. Code Ann .. Art. B6A. 6: COMAR 07.02.07.19:
13A.OB.01.13