February 2016

TEA has new power to secure information in misconduct cases

Since Sept. 1, 2015, the Texas Education Agency’s (TEA) Department of Educator Investigations has had subpoena power to secure the release of information needed to conduct educator* misconduct investigations.

It has used that power more than 30 times since September to get information from districts, but not without additional legal objections from some. Are their objections a concern for other districts? And how does the subpoena process work? We asked TEA’s Director of Educator Investigations Doug Phillips to fill us in on how the investigations process has changed.
 
Q: How does the subpoena process work?
 
A: The subpoena is issued by an administrative law judge (ALJ) at TEA, so we can get one within 24 to 48 hours.

When a district reports an educator having an inappropriate relationship with a student, we send a letter to them to request their information. The districts will sometimes respond that they can’t comply unless subpoenaed. So the investigator goes to our ALJ and a day or two later, the subpoena goes to the district. In most cases, the district fulfills the request.
 
Q: Gaining subpoena power was supposed to help you conduct investigations, but you’ve encountered other problems. Tell me about that.
 
A: The problems we’ve had, we would argue, are legal misinterpretations. We’ve had motions to quash subpoenas. We think we’ve straightened that out, but we’re not certain. We have another motion pending now that has a similar “chilling” effect on collecting information. Our problems haven’t been with district staff; they are just taking the advice of their legal counsel.
 
Q: So HR administrators aren’t misunderstanding their responsibilities when you use a subpoena to gather evidence?

A: That’s my opinion. They are relying on their legal counsel. To give the benefit of the doubt to the law firms involved, they are doing what they believe is in the best interest of the school district. I would rather not have to issue a subpoena, let alone a respond to a motion to quash.
 
I testified in front of the Senate Education Committee on Dec. 7, and that morning we got served with a motion to quash a subpoena by a school district. That set off a whole mess. The law firm involved was upset with me because they felt that we had reached a deal and would willingly accept the motion to quash. That was certainly not the case.
 
Senator Paul Bettencourt was responsible for helping TEA get subpoena power. For him to find out that they were kind of thumbing their nose at our subpoena…he did not take that well.
 
Q: We’ve talked about the reluctance of some districts to report misconduct before. What is the motivation behind that?
 
A: The argument is that they don’t understand the reporting requirements. It sure is a theory that they don’t want the information to be publicized. We’ve heard, “We don’t want to ruin somebody’s career or reputation based on rumors.” What really doesn’t hold water is when they fire people or make them resign and then they pass them on to another district knowing that they shouldn’t be around students. They don’t report anything to us, or report that they gave a positive recommendation. That’s disturbing business there.
 
Q: Does that still happen?
 
A: Oh, yes, absolutely. I’d like to think it goes on less.
 
The other thing is the very difficult reality of finances. If you can get a person to resign, and part of that deal is you tell them you’re not going to report them to the State Board for Educator Certification (SBEC), they’ll resign because of that. It’s just kind of an under-the-table deal. I’ve been told that if you have to go through the termination process, it can cost a district $50,000 to $60,000.
 
Everybody kind of loses sight of the fact that it’s a battle to protect kids. You would think that would be everybody’s mission.
 
Q: When you investigate, you don’t always sanction an educator’s certificate, right? 
 
A: In December, we closed about 31 percent of our cases, which is pretty common. With cases that are closed, no action is taken.
 
Districts typically report that someone’s been terminated, has resigned, or has been arrested as part of a district investigation. We open or don’t open an investigation as a result of that report. They’ve already conducted their own investigation and make their report based on what they’ve found.
 
The reason we don’t open a case varies. Sometimes we don’t have jurisdiction, for example if the person is not a certified educator. Also, districts may report an arrest that is serious enough for them to take an employment action but it might not be serious enough to take action against the person’s certificate.
 
Q: How many cases are you working on right now?
 
A: It’s always a shock when I tell people that we have 1,000 open investigations. We would like to get them out of here as fast as we can, but if we have to jump through all these additional hoops…Again, in our opinion, if we can just get the information that any reasonable person would say that we should get…
 
If a district reports, “We have teacher X who did something bad to student Y,” we reply, “Thank you for reporting. Would you send us all your information?” and the district tells us, “No, we’re not going to give you information about who the victim is or who the witnesses are.” To the average person, that just doesn’t make sense.
 
Q: Are the privacy rights of students a big concern for districts in reporting misconduct?
 
A: That’s one of the arguments.
 
Q: Is that an issue districts need to be concerned about?
 
A: We believe that we have the right to any information involved in a misconduct investigation. We’re TEA…we have access to all student information. So one of the arguments is that they are concerned about violating FERPA (Family Educational Rights and Privacy Act of 1974). We argue that the subpoena relieves them of that concern and shifts the burden to us.
 
Another concern is the fact that they conduct an investigation of an educator and they interpret the results of that investigation as a disciplinary action against the teacher. They can say, “That’s part of that teacher’s evaluation, and by law, we don’t release evaluations.” Generally, we don’t want to see evaluations. But if they broaden the evaluation to include that, then any disciplinary action that’s part of the investigation is sheltered from TEA.
 
Another twist that we’re seeing now—and I can’t imagine this will hold water—is to hire an attorney to conduct the investigation and then say the results of the investigation are protected by attorney-client privilege so they don’t have to release the results.
 
You do start to wonder why. Aren’t we all in this together? Don’t we all want to get bad teachers out of education so we can protect kids?
 
I always argue that if districts are concerned about getting sued, should they be more concerned about getting sued because they terminated a teacher for doing something to a kid and provided us with information in the process? Or should they be more concerned about the fact that an educator goes on to the next district and offends against other victims and the district gets sued for that? I know which lawsuit I’d rather defend.
 
Q: It sounds like the battle to get districts to report has shifted a bit.
 
A: It’s shifting more and more in our favor, and after the next legislative session, it’s very likely to shift even more. I’ve never had an interim charge on anything like this, and interim charges give you an idea of the direction of the legislation that will be coming in the next legislative session. It’s been in the press every day. I was quoted in the London Daily Mail.
 
Q: Are there more offenders or is social media just making contact easier?
 
A: My belief is that electronic media is definitely making it a whole lot easier to have these relationships. Direct, unsupervised conduct happens regularly.
 
You’d hope parents wouldn’t let a teacher come over and hang out in a student’s bedroom, but with electronic media, that’s essentially what’s happening. And not just teachers, of course. Anybody and everybody.
 
Q: Offenses by noncertified employees don’t get investigated by TEA.
 
A: No.
 
Q: So it’s up to districts to decide whether to get police involved in those cases.
 
A: Yes. We’ve got enough to do without working on noncertified staff, but that did come up in the committee hearing.
 
Q: Do you have enough staff to do the job?
 
A: Staffing isn’t the answer, honestly. We’d be more efficient if we got some cooperation from the courts. A Corpus Christi woman just pled guilty of misconduct and got sentenced to seven years of probation. We worked with them from the get go, asking them in the process of making a deal with her to have her give up her certificate, because otherwise we have to go after it. That didn’t happen, so we do have to go through the process to get her to surrender her certificate.
 
Q: Is there a legislative solution for that?
 
A: We’ll be talking about that.
 
Q: If you plead guilty to misconduct, shouldn’t you automatically lose your certification?
 
A: It sure would be nice. If you plead like this woman did or if you are required to register as a sex offender, it doesn’t mean losing your certificate. Also, if you’re a teacher at district X and you have an inappropriate relationship with a student from district Y, you can’t even be prosecuted. It seems crazy to me that the teacher and student have to be at the same school district for it to be misconduct.
 
Q: Has subpoena power made your job easier?
 
A: We are glad to have it. It was much needed for years. There could be tweaks to the law to make law firms feel more comfortable. We’ll ask them to help us with that for the next legislative session.
 
Q: Any other message to districts about misconduct investigations?
 
A: The message to districts is to make sure principals are talking to HR and that things aren’t just dying at the campus level.
 
Districts should also have some clear policies about the use of social media between staff and students.
 
We just need to tighten everything up. The framework and the tools are in place.
 
(Editor’s note: Sample guidelines on employees’ use of electronic media with students are included in HR Services Model Employee Handbook.)

*Investigations and reporting requirements apply to any employee who holds an SBEC certificate including aides and individuals serving in a position that does not require certification.