Overview of New Reporting Requirements Regarding Allegations of Child Abuse and Sexual Misconduct

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1 Overview of New Reporting Requirements Regarding Allegations of Child Abuse and Sexual Misconduct April 27,

2 Disclaimer This presentation is intended as a summary of law only, and is not meant as legal advice. Please consult your attorney to obtain legal advice. 2

3 Suspected Child Abuse/Neglect Any staff member who suspects a child is abused, neglected or missing must report immediately to DCP & P. School district must contact law enforcement. See N.J.A.C. 6A: in 10 children are estimated to be victims of sexual abuse, according to a 2004 USDOE report 1 in 4 girls and 1 in 20 boys self-report having experienced sexual abuse. Over a third of sexual abuse is committed by family members; 60% by other known and trusted adults. 3

4 Reporting Suspected Bias-Related Acts and the Link to Suspected HIB Must report to local law enforcement and bias investigation officer for county prosecutor s office whenever school employees develop reason to believe a bias-related act has been committed or is about to be committed. Bias-related act means any act that is motivated in whole or in part by racial, gender, disability, religious, sexual orientation, or ethnic prejudice. Does NOT have to rise to level of a crime. Includes any allegation of HIB involving one of the above protected classes See N.J.A.C. 6A:16-6.3(e) 4

5 Staff Reporting to Outside Agencies Child abuse or neglect: report to DCCP and law enforcement Missing children: report to DCCP and law enforcement Drug possession/distribution: report to law enforcement Under the influence of alcohol or other drugs: may report to law enforcement; must send for medical evaluation Firearms/other weapon possession/use: report to law enforcement Sexual offenses: report to law enforcement and DCPP Resign After Accused of Conduct Unbecoming/Criminal Behavior State Board of Examiners 5

6 Sexual Assault Sexual assault includes (but not limited to): Victim is less than 13 years old; OR Victim is at least 13 but less than 16 years old AND the actor is at least 4 years older than the victim; OR Victim is at least 16 but less than 18 years old and the actor has supervisory or disciplinary power of any nature (e.g. any school employee); OR Victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated. N.J.S.A. 2C:14-2 NOTE information may come up when counseling a student that requires immediate reporting to law enforcement. 6

7 Case on Duty to Inform Prospective Employer Tenured elementary teacher was accused of several instances of child abuse. District reported allegations on 2 occasions to DCP & P, although some information was inadvertently withheld in one of the reports. In addition, a parent filed a third complaint with DCP & P. DCP & P determined that no action was necessary. District did its own investigation, and learned of new information. Teacher subsequently resigned from Montville and was hired by Cedar Hill. Montville informed Cedar Hill one month after hiring regarding past transgressions and allegations. Litigation followed, naming Montville as one party due to failure to inform Cedar Hill. Court held that there was no affirmative duty for a prior school district to inform a prospective employer regarding prior allegations of child abuse or sexual misconduct. Child M v. Fennes, 2016 WL (App. Div. August 25, 2016), unpublished opinion. Case prompted the introduction and passage of the so-called Pass the Trash legislation. 7

8 Pass the Trash Legislation P.L. 2018, c.5 Requires school districts, charter schools, nonpublic schools and contracted services providers working with school districts to determine if prospective employees have pending or substantiated allegations of child abuse or sexual misconduct over the past 20 years. Signed April 11, 2018 GOES INTO EFFECT on June 1, 2018 Open Question The application of the new law to those who the board votes to hire prior to June 1, 2018 who start working on or after June 1,

9 Key Definitions Child abuse means any conduct that falls under the purview and reporting requirements of P.L. 1971, c.437 (N.J.S.A. 9:6-8.8 et. seq.) and is directed toward or against a child or student, regardless of the age of the child or student THESE are the allegations that must be reporting to the Division of Child Protection and Permanency (DCP&P, formerly DYFS) 9

10 Key Definitions Sexual misconduct means any verbal, nonverbal, written or electronic communication, or any other act directed toward or with a student that is designed to establish a sexual relationship with the student, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student. NOTE that this definition potentially includes actions that may not have been reported to DCP&P but may have only been investigated by the school district 10

11 Requirements for Prospective Employee Provide a list of current employer and all former employers within the last 20 years that were schools or where the applicant was employed in a position that had involved direct contact with children Sign a written authorization that allows for prior employers to release relevant information and releases those employers from any liability Sign a written statement attesting to whether there are any substantiated or pending allegations of child abuse or sexual misconduct 11

12 Prospective Employee Statement Must disclose if: Subject of any child abuse or sexual misconduct investigation in the last 20 years unless the investigation resulted in a finding that the allegations were false or not substantiated Has ever been disciplined, discharged, nonrenewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct Has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct 12

13 Requirements for Prospective Employer Conduct a review of employment history by contacting applicable former employers to determine if such an investigation is pending or if the allegations have been substantiated; the employee was discharged, discharged, nonrenewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct; or the employee has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct NOTE that different standards involved for contacting former out-of-state employers 13

14 Employment History Review Method History check may be via written or electronic communication or by telephone Must document in writing what was revealed if done by telephone Best to have a second person present if gathering information via telephone from prior employer 14

15 Prior Employers (In-State) Must disclose requested information no later than 20 days after receiving a request if person in question employed within last 20 years Failure of prior employer to respond within 20 days may be grounds for automatic disqualification of applicant for employment NOTE this could result in applicant being penalized because of nonresponsive prior employer 15

16 Immediate Termination or Rescission of Offer Right to terminate immediately or rescind offer if applicant is offered or begins employment, and then relevant information is subsequently discovered Termination is not subject to any grievance or appeal process or tenure proceedings OPEN QUESTION What happens if a tenured employee is terminated based on inaccurate information from a prior employer without first going through tenure hearing process? 16

17 Prior Employers (Out-of-State) Out-of-State prior employers cannot be compelled to cooperate. However, school district must document with specificity diligent efforts to gather the information in question Best practice to send written request to out-of-state prior employers and follow-up if no response within short time period 17

18 What if something is revealed? Prospective employer may decide to stop considering applicant If prospective employer still wants to consider applicant, it must make further inquiries to ascertain additional details 18

19 Hiring on a Provisional Basis May employ an applicant on a provisional basis for up to 90 days if: The applicant has submitted the required documentation regarding prior employment The school district or related entity has no knowledge or information pertaining to prior allegations of child abuse or sexual misconduct The school district or related entity determines that special or emergent circumstances exist 19

20 Hiring on a Provisional Basis NOTE that statute does not define special or emergent circumstances Open Question does time served in a provisional capacity count towards accrual of tenure??? 20

21 Bars Suppression of Information The statute bars settlement agreements, contracts, or collective bargaining agreements from including language that has the effect of Suppressing or destroying relevant information related to an investigation; Limiting the right of an employer to report suspected incidents; or Expunging relevant information from employment records OPEN QUESTION The impact on nondisclosure agreements entered into prior to the effective date of the legislation 21

22 Penalties for Nondisclosure Civil Penalty - $500 Potential Criminal Penalty - 2C:28-3. Unsworn falsification to authorities a. Statements "Under Penalty." A person commits a crime of the fourth degree if he makes a written false statement which he does not believe to be true, on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable. 22

23 Potential Penalties Fourth Degree Crime On a fourth degree crime in New Jersey, you are facing the following penalties: A permanent felony charge on your record Potential probation Up to 18 months in State Prison Up to 364 days in the county jail Up to a $10,000 fine 23

24 Next Steps Critical to Revise Hiring Procedures Prior to effective date of new law, June 1, 2018 Respond promptly to requests for information from prospective employer school districts. All requests must be met within 20 days. In addition to contacting DCP&P, when appropriate conduct internal investigations (note different standard for district to take action v. DCP & P or law enforcement). Ensure that all related reporting requirements regarding allegations of child abuse and sexual misconduct are met. 24