It comes as no surprise to most educators that their job is tougher today than
it was 30 years ago. Students are more streetwise and parents watch too
much television. Everybody knows his or her rights. Too often whenever
there is a problem involving a student, if the first thing said isn't,
"I'm going to talk to an attorney," then i's the second.
Navigating the rights of students, parents, the public, and a host of agencies and regulations take more time than does teaching. Unfortunately, with the passing of each session of the legislature, things are likely to become more complicated.
Here's a new problem for educators: In response to complaints that children are being abused, the state has enacted laws that state that an educator commits child abuse if the educator intended to do the act, and that act which results in the child being injured. Note: the educator need not have intended the injury. Abuse is committed if the educator intended the act.
In one case the educator directed a student — who had just returned to the classroom after being directed to leave — to return a book that the student had taken from a desk. The teacher knew the book did not belong to the student. The student defiantly refused to return the book or give it to the teacher. The teacher grabbed the book and attempted to take it from the student. The student refused to release the book. The teacher took the student's wrist with one hand and with his other hand removed the book from the student's hand. The teacher returned the book to where it belonged and directed the student to leave.
Unfortunately for the teacher, when he took hold of the student's wrist he left a slight red mark. The student immediately reported the incident to the Division of Child and Family Services (DCFS). A photograph of the injury was taken, and the teacher was ultimately charged with child abuse! The charge was "substantiated" after an investigation. As is the case in most of the incidents in which I have been involved, the teacher was not asked his side prior to the "substantiated" finding.
Now for the really bad news: "Substantiated" findings of child abuse have been used by school districts and the Utah State Office of Education as a basis for terminating school employees and revoking teachers' licenses.
Additionally, section 53A-6-501 of the Utah Code provides that the Utah State Board of Education shall "take appropriate action against any "licensed educator" who, after having had a reasonable opportunity to contest the allegation, has been found pursuant to a criminal, civil, or administrative action to have exhibited behavior evidencing unfitness for duty, including immoral, unprofessional, or incompetent conduct, or other violation of standards of ethical conduct, performance, or professional competence; or . . . who has been alleged to have exhibited such behavior or committed such a violation."
In a case that recently came to my attention, an educator was involved in a divorce. As too often happens, the spouse raised the specter of child abuse. Because of the lax standards for proving child abuse, charges were brought against the educator. Rather than fight the charges, the educator simply entered into a "Plea in Abeyance" with the advice of his legal counsel who told him that after a year, the charges would be dismissed and it would be far less expensive to take the plea than to fight it. "Besides," according to counsel, "after a year, the plea will be withdrawn and it's almost the same as though the charges were dismissed."
This is the kind of advice criminal defense attorneys often give, and it's not always bad advice — unless you happen to be an educator.
Shortly after the plea was entered, the DCFS "substantiated" the charge of child abuse against the educator. Because of a recent change in the law, the DCFS was required to tell the educator that he had been "substantiated" as a child abuser and that he had a right to contest the finding which he immediately did because he did not believe he was really guilty of child abuse. In dismissing the teacher's request for a hearing, the teacher received this from the DCFS:
This action was initiated with a Notice of Agency Action mailed to the Respondent. The notice alleged that the respondent was guilty of emotional maltreatment and physical abuse. Following service of the Notice, the Respondent asked for a hearing in order to challenge the substantiated findings. Prior to the hearing, the [DCFS] filed a Motion to Dismiss the Hearing Request on the basis that the matter has been adjudicated.
The right of an individual to contest a substantiated finding when the underlying facts have been adjudicated is addressed in Utah Code Ann. '62A-4a-116.5(5)(a) (1998) and Rule 512-25-6 of the Utah Administrative Code, which provides as follows:A person may not make a request to challenge a substantiated finding . . . if, at any time, a court of competent jurisdiction has made a determination based on the same underlying facts that:(i) the child abuse or neglect occurred; and
(ii) the person was substantially responsible for the abuse or neglect that occurred.
In short, because the educator decided to enter a plea in abeyance to save time and money and because his criminal defense attorney suggested that after the probationary period the plea would be withdrawn, the educator could not challenge the substantiated finding.
As we said before, nothing is simple for educators. An allegation of child abuse by an angry spouse becomes a criminal case. DCFS investigates. The unwary criminal defense attorney thinks he has accomplished something by obtaining a plea in abeyance. DCFS uses the plea to substantiate its findings, as does the USOE. The school district uses the plea and the substantiated finding as a basis for terminating the educator's employment and the USOE uses them to take away his license!
The purpose of this article is to encourage UEA members to consult their UniServ directors in all matters that might affect their job. Never enter into any kind of settlement of a criminal case without consulting your UniServ director. Pleas in abeyance may work for most members of the public; they don't work for educators if it can be argued that somehow, someway, it adversely affects the educator's ability to perform the duties of his or her job.