Potosky, Harriet E.

From;
Sent:
To;
Subject:

Sequeira, Martha
Monday, May 11, 2015 10:57 AM
Potosky, Harriet E.
FW: Public comment on: DRAFT Revised Policy JHC-Child Abuse and Neglect

Good morning:

FYI
From: Daniel Hirschhorn [mailto:dhirschh4@gmail.com)
Sent: Monday, May 11, 2015 10:06 AM
To: BOE
Subject: Public comment on: DRAFTRevised Policy JHC-ChildAbuse and Neglect

To: Board of Education

MCPS's draft "JHC Child Abuse and Neglect" policy covers a lot of ground and has noble ambitions. However,
it is confusing because it covers too many issues and people's roles and responsibilities. It needs much better
organization. It might even be best to break it up into two or three interrelated policies. A professional editor
could help with that.
Of course, the policy neither tells anyone HOW to accomplish the objectives stated nor specifically what to do
or not do. Specific conunents:

I.

Subsection# 5 of Section C. Th.fPLEMENTATIONSTRATEGIES, of the draft, calls for the

superintendent of schools or designee to set forth procedures to implement the JHC policy, here "to develop
a code of conduct and other guidance for MCPS employees and others on MCPS property with clear
standards on responsible behavior and appropriate conduct between adults and students." This seems to be
the most important provision because such a code of conduct and standards would be issued and used to
train all employees in the specific actions they should do and should not do to avoid child abuse and neglect.
For example, when is a teacher allowed to make physical contact with a student, say, to comfort him or her
or just to be naturally affectionate? Schools currently implement this policy poorly.
I suggest the employee code of conduct and related standards be published and distributed as soon as possible
and that it parallel and comport with Maryland's laws on child abuse and neglect. This will also give guidance
to school management when to investigate and "prosecute" an employee for breach of the code and the school's
policies-and when not to prosecute.
.

.
Furthermore, terms must be clearly defined for readers, and Maryland law already does much of that for you.
For example:
FAMILY LAW ARTICLE, 5-701, 5-702, 5-704, 5-708, 5-711 5-701:
Definitions.

(x) Sexual abuse. -- (1) "Sexual abuse" means any act that involves sexual molestation or exploitation of a child
by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of
a child, or by any household or family member. (2) "Sexual abuse" includes: (i) incest, rape, or sexual offense in

any degree; (ii) sodomy; and (iii) unnatural or perverted sexual practices.

II. Another broad idea is to structure the organization of the policy to have differentiated sections on
responsibilities by class of the involved party. That is, to avoid reader confusion, separate sections should be
structured broadly as follows:

Management Duties
Employee Duties and Infractions (i.e., code of conduct)
Parent Obligations ( or just delete from policy)

Daniel Hirschhorn, MBA, JD

ofc. 301-414-7518 cell. 301-509-0033

Potos~, Harriet E.
From:

Sent:
To:
Subject:

Sequeira, Martha
Thursday, May 14, 2015 10:22 AM
Potosky, Harriet E.
FW: revisions to child abuse and neglect policy

Good morning Harriet:

FYI
Thank you,
Martha

From: Keith Campbell (mailto:keithcc1966@gmail.com]

Sent: Wednesday, May 13, 2015 7:20 PM
To: BOE

Cc: Ellen Gadbois

Subject: revisions to child abuse and neglect policy

Dear BOE,
In light ofrecent CPS and Montgomery policies and actions respecting 'Free Range Kids', I oppose elements of
this policy that require reporting to CPS.
CPS has taken an overly broad interpretation of Maryland statutes that were intended to protect children from
abandonment and neglect.
As a result, such reporting puts well-behaved but active children at risk of being confined involuntarily and
without parental notification, in an unacceptable violation of the liberties guaranteed by our Constitution.
I do not wish my children to live in fear of county authorities.
I urge you to defer adopting this policy until such time as CPS and Montgomery County police actions have
become more consistent with the American political tradition.
regards,
Keith Campbell
Bethesda, Maryland

Potos,2, Harriet E.
From:
Sent:
To:
Cc:

Subject

Causey, Joanne L
Thursday, June 04, 2015 4:26 PM
Williams, Stephanie P
Sequeira, Martha; Potosky, Harriet E.
Comments-Child Abuse and Neglect Policy

Dear Montgomery County Board of Education Members:

Abuse thrives in secrecy - in 2012 the Maryland State Board of Ed directed you to take concrete steps to protect
children in schools. Your response was silence.
In September of 2014, MCPS, under the direction of Dr. Joshua Starr, began to respond to media attention to
"isolated" incidents of child sexual abuse at Baker and Clemente. Since then, dozens of cases have been publicized
that had previously been mishandled. We all know now that these incidents are not isolated. There is a systemic
problem in MCPS and there should be accountability for the travesties committed against children in our schools.

As a parent volunteer on this workgroup/advisory group, there has been selective transparency - we are still
awaiting documents that we have requested on numerous occasions, and the website has been slow to be updated,
if at all. And while we were participating in workgroup/advisory group meetings with multidisciplinary team members,
children continued to be abused in our schools.

Please do not vote to implement this draft policy yet. I have grave concerns that doing something without having this
policy vetted by child abuse experts with knowledge of laws and Attorney General opinions at the state level will be
a huge mistake. I believe there are major flaws in this policy, major loopholes, conflicts with Attorney General
Opinions, and inconsistencies with Mayland law.

Additionally,
- Where is the accountability for abuses that have occurred and may continue to occur?
- While in theory this could be a good plan, it is contingent on the infrastructure that is promised - where is the
detailed plan for that?
:
- Where are the other documents that are referenced: Where is the Memorandum Of Understanding? Where is the
Employee Code of Conduct? Where is the plan for educating the public?
- Who is in charge of the implementation? Who will manage the ongoing process? Does MCPS have the resources
to support this?

And while I would like to agree with simply moving forward without looking back, MCPS has to look back to see what
went wrong to prevent it from happening again. Furthermore, just as the Board hired an outside auditor to come in to
review your credit card use, we respectfully request that the same level of accountability be held for the safety of our
children.
[

I urge you to do the right thing, not just something. This is not the appropriate time for a knee-jerk reaction and
approval vote without all of the information.

It is time to stop hiding the skeletons in the closets - I challenge you to find them all, give them a proper burial, and
hold those who put them there accountable.

Thank you for your consideration,

Susan Burkinshaw
13709 Charity Court
Germantown, MD 20874
301. 758.6995 (c}

Joanne Causey
Administrative Legal Secretary
Office of the Board of Education
Phone: 30 I 2793084
Fax: 301-279-3860
Email: Joanne L Causey(@mcpsmd.org

CHILD ABUSE AND NEGLECT

COMMENTS ON PROPOSED POLICIES

AND PROTOCOLS

submitted to
Montgomery County Public School
System
by.
I

Ellen Mug.man
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 oh 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 1,989 policyand 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 egrf?gious practices that covered up
abuse in the Howard County Public schcols 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 Sp~cial 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. I have attached a list of relevant activities
highlighting my experience,
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. TheBoard 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 DHR 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 reputationtrumps 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 [MCPSJ." (Members of the
Survivors Group, in Making Schools Sa~(f, a report o_n 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 theDepartment's recommendation to
the Board to support HB 1033, "Public and Nonpublic Schools - Sexual and Physical Abuse
Notifications and Preventi_on", introduced last session by Deli;gate 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 r>eported 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 ~buse 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 rernoved-. In addition. form 460-19 needs to be withdrawn as well.~
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 Couhty 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 F orm 460-19 mentioned above.
1

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 consultatlon 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 exploitaticn, 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 t.he 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. Dam us 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 d)smaying. Waiting for more complaints to come to light
in order to create a pattern of "lnapproprlate 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
Memorandumof Understanding, mentioned above, has not yet been drafted, and the criteria
for the secret file is based on an incorrect assurnptioh,_'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 ~o 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

review process. Consequently, the Board 'should not take action on the policy because
it, along with the public, will not have all the interrelated documents.
Moreover, Or. 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 [udqernent,' 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 cqnflict 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 ~tudent", 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 investigationto 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 consequentlyjeopardize the CPS and Police Investigationsto 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 professio_n 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 Genera/__

(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 thelaw.
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 investig'ation 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 upolice or social services" substituted for "County partner agencies."2 Only
those two agencies have the authority to decide when'MCPS can pursue its investigation
In the drsft 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 reguired. "Consultation" must be deleted and "consent" substituted and
"police or social services" substituted for "County MDT participating agencies" ..~ 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
.

,.l
,.
school system should not interview the victim of the alleged abuse, the alleged abuser. or any
potential witness without prlortconsent" 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 11(8)(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 believett 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 deletedl! to forestall any
mistaken. confused beliefs that such investi_gations 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 regardinig 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.}1-Q
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 l(D} 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 a"nd 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 empldyed 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 doesthis 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 OSS 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 protocqls ~ust be revised to comply witb the law
and to prevent harmful, unfair actions against the student,li
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 )(v.ii) 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 providinq 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 Child Abuse Liaisons. Sharing OSS record
carefully for that purpose alone is legal.
Trauma-Informed and T_rauma-Sensitive Practices implemented in other schools
systems across the country {See theprcqrams 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 Ad:,,erse 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 so that a
change in the culture in the school system occurs.

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 lanquaqe 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~ designee ~hali detecmine 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 dis,ussion 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 preference for having a third i;iam'. 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 sod 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 anunstated 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 add~d 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 obfigation to protect children.
Historical data must be reported tothe Board ahd 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 studentsor others outside the school system.
Therefore, these data needs
be collected separately to document who has reported

to

suspected child abuse and neglect alleged to have been committed by someone in the
system. This includes individuals fn 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 endtypes of alleged misconduct. The
number of complaints each indi'-7iquai-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 resiqned 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 interlering 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 reeort is made. 14~
'

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 communlty, 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 II spoke to Mr. Zuckerman, he was unaware of
anyone who had been flagged. See below .14 (an bullet porns)

'

Criminal History Record Checks

School officials may be under the misapprehension that individuals required to obtain criminal
history records checks under sections 5-590 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. 1516 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.1516
The required standard in the the Family Law statute is "access to children" without
qualification. It is the "access" to chilqre~ 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 poljcy and protocols. MCPS
has the option of enhancing protections for
;,
children rather than just limiti'nq them. ~-m.endments should be drafted in the same sections to
define "direct, unsupervised and uncontrolied 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 indivldua.li;; 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
j

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.~ 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 js 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.".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. z.l! 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 th~ 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 provisicnlnthe MSDE model policy.

The school system should add a section abou't the Position of Authority law, directing
employees and others to report a violation to authorities, even though it is not technically child
abuse.! 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 sh9uld 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.

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.

t.

Ellen Mugmon
7193 Collingwood Court
Elkridge, MD 21075
(410) 747-0857
E-mail: Ellenmugmon@jhu.edu
Education:
Master of Liberal Arts, with High Honors, The Johns Hopkins University, 1983
Bachelor of Arts, with General Honors, Douglass College, 1971

Career History:
Have attended CJIS Advisory Board meetings for over twenty years, and was appointed a
member by the Governor in 2012. With regard to criminal history records, have been a
member of the Ad-hoc Committee on the National Child Protection Act, a subcommittee of the
CJIS Board. Have been a member of the DPSCS Criminal Justice Information System
Central Repository Nuclear Committee. Have been a member of the Criminal Background
Check Investigation Workgroup, established by the Office of Children, Youth and Families and
the Governor's Council on Child Abuse and Neglect. Consultant, American Bar Association
Center on Children and the Law's reports to the US Department of Justice, entitled Effective
Screening of Child Care and Youth Services Workers and Screening of Persons Working with
Children, the Elderly, and Persons in Need of Support.
1993-Present: Legislative advocate - submitted testimony before numerous federal, state,
and local governmental bodies - served on severaf agency committees concerned with child
abuse and neglect.
1997-2015: Coalition to Protect Maryland's Children, Steering Committee
.

I~

~:

1998 - Member- Task Force - MSDE/DHR Task Force on Responses to Child Abuse
1990-2003 Legislative Committee, Governor's Council on Child Abuse and Neglect, Chair
(member since 1986)
2005-2009: Children's Healthcare Is A Legal Duty (Child, inc) - Representative to the National
Child Abuse Coalition
2004: Maryland Task Force on Child Welfare Accountability
2003-2011: Legislative Committee, Citizens' Review Board for Children, Member
1997-Present: American Professional Society on the Abuse of Children, Representative to the
National Child Abuse Coalition (2005-2009)
1996-2006: Legislative Agenda for Maryland Women, Member, Steering Committee
2000-2011: Maryland's Federally Funded Children's Justice Act Committee

1993-2002: Legislative Consultant, Maryland School Psychologists Association

1999-2003: Legislative Consultant to Maryland Pupil Personnel Services Association.
1993-2007: Consultant to entities undercontract on child abuse and neglect issues for state
and national conferences
1985-2009: Presenter at numerous conferences at local, state and national levels
1972-1977: Caseworker, Montgomery County Department of Social Services.

Significant Accomplishment:
.

My most significant accomplishment is sustaining a passionate, over 30-year commitment to

advocacy on behalf of abused and neglected children at county, state and national levels.
Among other achievements, I played a maier role in the passage of legislation requiring
criminal records screening of individuals who work with children, eliminating corporal
punishment in public schools, repealing exemptions that had-permitted religiously-motivated
medical neglect of children, establishinq child fatality review panels and strengthening
Maryland's reporting law. Also spearheaded efforts to defeat legislation that would have
threatened the health and safety of Maryland's children.

Officer/Board Membership in Civic/Nonprofit Organizations:

2012-2015: Member, Maryland Criminal Justice Information Advisory Board
1996-2009: Honorary Member of the Board of Directors, Children's Health Care is a Legal
Duty, Member - 1996-present.
1996-2003: Legislative Chair, Maryland Chapter of the American Professional Society on the
Abuse of Children (2002-2003: Vice President)
1995-2000: Member, Executive Council, National Committee on the Rights of the Child
1990-1999: Founding Member of the Board'. Voices for Children Inc. (CASA Program) - in
Howard County, MD
1994-1995: Member of the Board, Sponsor-A-Child Program
1986-1994: Chair, Advocacy Committee, Board of Directors' Howard County Sexual Assault
Center

"
1988-1992: Chair, Howard County Child Protection Committee
1985-1989, 1992-1995: Legislative Chair, PTA Council Howard County
1985-1987: Publicly elected member, Board of Directors, Harper's Choice Village Association,
Columbia, MD.

Awards/Honors:

2013: Honored by The Awareness Center, Inc.: The International Jewish Coalition Against
Sexual Abuse/Assault
2006: Distinguished Service Award on Behalf of Abused and Neglected Children, Justice For
Children
2005: Outstanding Service Award, Citizens' Review Board for Children
2004: Maryland's Top 100 Women, Maryland Daily Record
1999: Imogene T. Johnson Friend of Children Award, Children's Health Care is a Legal Duty
1999: First Annual Governor's Council on Child Abuse and Neglect Advocacy Award
1998: Champion for Children Award, Maryland Foster Care Review Board
1998: Certificate of Appreciation, Legislative Agenda for Maryland
1998: President's Honor Roll, American Professional Society on the Abuse of Children
1997: Commendation by the Family Tree for Advocacy of Behalf of Children
1997: Child Advocacy Award, Maryland Chapter of the American Academy of Pediatrics
1996: Golden Apple Award, Maryland Co~gress of Parents and Teachers
1995: Special Friend to Children, by the National Association of School Psychologists
1994: Recognized for "Outstanding Service and Dedication to the Howard County Sexual
Assault Center"
1993: Recognized for "Advocacy Efforts to pass legislation eliminating corporal punishment in
schools" by the PTA Council of Howard County
1992: Public Citizen of the Year, Maryland Chapter of the National Association of Social
Workers
1992: Governor's Citation for work on behalf of children
1992:City of Baltimore Citizen Citation for Services t~ Citizens of Baltimore
'

1992: Baltimore County Executive Citation for Advocacy on Behalf of Children in Maryland
1992: Certificate of Recognition from Howard County Government for Advocacy on Behalf of
Children
1990: Governor's Certificate of Merit for Outstanding Contributions in the Field of Victim's
Rights or Services
1988: Harper's Choice Community Service Award
1986: Honorary Life Membership, Maryland Conqress of Parents and Teachers.

Affiliations
Member, International Society for Prevention of Child Abuse and Neglect, 1991-present
Member, the American Professional Society on the Abuse of Children (APSAC), 1990 present
l

'

Member, National Child Abuse Coalition as APSAC Representative, 1994-2009

Member,_ Coalition to Protect Maryland's.Children,

1997-2015

Member, the American Humane Association, Children's Division, 1991 - present

Member, Children's Health Care is a Legal Duty, Inc., 1993-present
Member, Maryland Network Against Domestic Violence, 1995-present
Member, Maryland Congress of Parents and Teachers, 1985-present
Member, National Association of Council for Children, 1998-present
Member, the American Coalition for Abuse Awareness, 1997-present
Member, National Victims' Center, 1994-present
Member, Maryland's Children Action Network, 1997-present
Member, Center for Effective Discipline, 2000 - present
Member, Prevent Child Abuse America, 1998 - present
Member, National Committee on the Rights of the Child, 1993-2000

Top executives did not report suspected Scout

abuse cases, files show
By JASON FELCH, WS 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 mld-iszos, 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 calls to his home and cellphone.

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

Instead, the spokesman highlighted the executives' contributions to abuse-prevention policies,
inc1uding the requirement 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 J,oy.
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 his 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."
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 bas 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 bad 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 l~

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 ~n 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 be 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 of local 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 n-year-old girl and today is
registered as a sex offender in Alabama.
jasonJelclt@latimes.com
Copyright 2015, Los Angeles Times

/lf iJE
The homeless sruderu must remain enrolled in the: J.SS
during the dispure resolution process. lf the dispute
concerns school selection or enrollment, rhe school
system shaU imme<liarel}' admit the homeless studeot
to the school in which enrollment is sought, pending
resolurion nf the dispute. 'fht>.sc:hool system shall also
r,rmidt- m,nspormion to the parent-selected school
for the duration of the dispute resolution proces!.. The
school shall provide ro the puent, 1,.ruardi:m, or unaccompanied homeless youth a written explanation of
the school's decision reir,irding school selection or
enrollment. including the righr to appeal. The LSS
shall refer the homeless student to the I.SS coordinator, who shall a.~sist wi1h carrying om the dispu1c resolurion process. ln the case of an unaccompanied
"homeless youth, the homeless liaison shall ensure that
the vouth is immediately enrolled in school pending
resohnion of the dispute.

Aii homeless

Duration of Services for Homeless

Students
AJI homeless children and youth arc eligible ro receive
services under the Educauon for Homeless Children
and Youth proi,.rram. A child or vm1th who cease; ro
be homeless may continue w receive services until the
end of the period of time for which service was urii..oinnlly intended ro he provided, which mar be theend
of the school year. A homeless child anending :m
:after-school or summer pr~
who moves into a
permanent residence m:IJ' remain in the program for
rhe rest of that school year 10 rhe exrenr feasible. LSS5
must determine on a case-by-case basis wherher m
continue services for these children and \'<>tith.

Sousce: 42U.S.C.11431. et seq.: COMAR 13A05.09.

c:tiHdren and vouth are elicible to

I

._,

receive servi :es under the Education for

Homeless Children and Youth program.

<:;~ild Abuse _and ~e_g!~t

Reporting
Any educator who has reason rn believe that ~ child
has been subjected to abuse has a dury to notify the:
local department of social sen-ices or ehe appropriate
iaw enrorcemem agency. Any educator who has reason
10 believe thar a child has been subjected rn negleei
has a duty I<> notifr the local dc:p:trtn'IC:Of of social
services. ~td. Code Ann., Fam. U\t' 55- 704. Educator
means am professional employee of any public,
parochial, or pri\':ltc cducarioruil a,rcne" or insrinnion.

.M<l. Cude Ann., Fam,

WI\\'

~5- 70 I.

,\ny gnod faith reason 10 believe chat abuse or neglect

occurred should he: reported without attempts ,,. do
further invcslig:uion, inrcrrni.:icion, or any other verific:iticm.1Din:ct knowledge of abuse or nt>r,.,lei;r is nm
necessary for rc:r,orring purpose~. The educator must
immediately noriiy and ,give :111 required information 10
the school admini >1mmr or that individual's desii,,~-c.
The rcpnrtin~: requirement applies fO everv incidcm of

suspected child abuse or ncp:lc:ct. even if the rcporrin,::

source knows rhar the fami~ is known ro the loc:u
dcpanmem of social services, i\1,1. Cc,dr Ann., Fam.

Law 5-70-t.
An educator must report orally, bv telephone or direct
communication. to the local deparrrncnt of social
services or law enforcement agent\' as soon as possible. The: educator must file 3 written rcr,on 11ith tht
local department of social services or law enforcement
~>enC\within 48 hours :titer the eon1acL If abuse is
suspected, a copy must
he sent w the State's
Atmmef~ Office. The individual makin the rcr1ort
shoulcl"includc the fnllowin~ information, 1n ihc extent
possible: name, igc, :1ml home uddrcs, of child: name
and home address of child's parent or per~on responsible for child'~ care; whereabouts o( child: nature and
extent of :1bust: or neglect, including any evidence or
inforrnanon nvnilahlc 1n rhc reporter concerning pcnsible previous insrance- of 11\,us or 11egh:c1: and anv
other information rhar would hdp 1lc1crmim the cause

:u~,,

19

of the suspected abuse: or nc1,,tl~1 and the idc:ntirfor

the r,cr.,on responsible for ihe abuse or neglect. Md.

Code Ann., Fam. Law :'>- 704.

Edutators who fail to report suspected child abuse or
neglect mar he subject to professional sanctions by
their liten.<.ing/cc:ni6cation boards. For those who do
rcpori, the law provides protection ior persons who
make "good faith" rcpom by pmviding immunil)'
from civil liability and criminal penal(}', Md. Code
Ann., Fam. Law S5-70!t The Deparancnt of Social
Services (DSS) may not idcnti~ an educator who is a
rCf>(irtin~ source without the consent of the individual,
unless the rcponer's identity is nc..<ec~ury for determination of :i court issue and has been court ordered.
Disclosure in a court proceeding would ~cnerally be
limited 10 legal counsel. COl\L\R .07 .02.07 .19. (Sex:
Appendix F: Individual Employee Responsibilities for
Reporting Child Abuse :md Appendix G: Child Abuse
and NeJ!lecr: Know Your Responsibility).

Records
Child abuse and neglect reports arc nor a part of the
student's education record antl should he maintained
separarely, Because child abuse and neglect report.\ are
nut pan of the education record, thc:y are nut subject
ro the disclosure and other requirements of FERPA.
Such records arc, however, subject to Stan: law concerning the confidentiality of child abuse and neglect
rc:pmn. School systems may not share ani child abuse
information wi;hout the consern of the local proterrive services or bw enforcement :t,l(cncier.. Tne law ha.,
a cnminal penal~ punishable l>y fine: not exceeding
550(1 or imprisonment nm exceeding 9(1 davs, or born.
Md. Code Ann., Fam. Law 5-707; Md. Ann. Cod" an.
BSA. 6; COMAR 07.02.07.19,\.

Investigation
Uy Departmc:nr of Social Services (DSS): State: law
requires that the local DSS conduct ,1 thorough invcsnptiun m protect the health, saferr, ~nd welfare of the
child. This invc:scigation process includes a saf~
determination o( all the children in the: care of the
:ilknl abuser or ncglcc1or.
Ii' a child is question eel by the protective services
worker and/ or police during the school clay on school
premises in an investigation of child abuse or negleet,
whcrhcr the child is the :ille)(cd victim or :i non-victim
witness. the superirucndcnt Or dcsignee should consult

20

with rhe individual worker 10 determine whether ~

school ofticial should be present and whether rhe par
em/guardian should be informed of the invcstig;icivc
questioning. The school is not required to notify par ,
ems/ guardians of imcstig.u:ion..~of child ab\lSc or neg
leer on school premises, Ji may be determined that di~closure to the pmnts \l."QU,jd create l\ thn:at to the well
being or the: child. COMAR I JA.08.U 1.13.

By School System: A school system mar conduct an

imcmal personnel investigation if the suspected abuser
is a school employee. However, the inrcmal invesrigation must nor occur until after the all~
abuse has
been reported. DSS personnel nnd/or the police
should be notified of the school syMc:m'sinternal
imesti~ri<,n. Theinvesrigation is subject to whatc:\er
limitations arc imposed br the police or DSS. The vie
rim of the aUeged abuser and potential wimesses
should not be interviewed without prior consent of
those agencic~.

Removal of Child
Police or protective services workers may remove a
srudenr from school ~ounds based on a child abuse
or neglect investigation if DSS has guardianship of the
child or possesses a court order. 1\ joint decision hy
the principal :i.nJ 1hc protective services worker should
be made regarding who will notify the
parents/guardians oi the action 10 remove the child
from school. Usually the notification is made ll pan
of the protective services worker's contact made to
arran,l(e the family interview, Jn the ahsence of n joint
decision, the superimcndenr or desipnee sh:tl.l ensure
chat prompt notification or removal imm school is
made re the student's parent/guardian.
ln the absence of arrest or allegations of child abuse
or n~lect, school uffici.,15may not authorize the
.rcmoval of a child from school ~muncls wirhout con
senr from the par<rrith,.>1.1ardi:m. even it' the police oticer wishes ro remove the child from school grounds
for ilwcstigati\'e questioning,

Source: Md. Code Ann .. Fam. Law 5701, 5704, 5707,

5-108: Md. Code Ann . Art. BSA. 6: COMAR 07.02.07.19:
13A.OB.01.13

Rit.LPH ~ TVI

IC'Q

&!Duh &tTO<hc.-S C.!'<e11.

'

OFFICE OF THE ATTORNEY GENERAL

200 SAINT PAUL Pl.ACE
BAI.TIMORE. MARYLAND 212022021

(301> 57H300

o.c~ Me1io 10-TS3ol

l~No.

IW!J SfMCIM

333 0019
WAl'tEA'S DllU;CT OIAI. NO.

T~to,OW
IWill, ,._,

s,o,om

o.e. """ ~,

December 17, 1991

The Honoral>le 'l'boaas M. Yea9er

~1

j.. :

413 Main Street

Laurel, Maryland 20707
Dear senator Yeager:
Youhave requested our opinion on several issues coneerninq
investigations by ,school system personnel of allec,ations that a
school system employee com.mitte4 child abuse. Specifically, you

have askech .

_,

1. Is a school syste211 authorited

to conduct, for pers.onnel
purposes, an investigation of allegations of abuse of a student by
a achool system employee indepen4ent of the child abuse
investigation conducted by a local department of social services
( "local

authority,

DSS") or

tl\e

police?

It

tbe

i;cbool

what procedures must the school systm

Sl'Stem has that

follow?

2.
Is direct investigative
information a prerequisite' to '
administrative aotion against a school employeeaccu&ec1 of abusing
a student?
3.
Do a school system and its employeesenjoy immunityfor
aeta or omission& during the school system's investigation?

OPnttcpop TU H'J.IOJdln'.. UBPM,

cite u:

76 Opinion of t.be 11:ton.et Genen.l

[OpW~a Bo.. 91D5i U>eoaaber 17, 1tt1)J

(1t,1)

;..7JJ

ilt;J

nc

'l'be Honorable Thomas 11.

December 17, 1991'
Page 2

Yeager

4.
If the school. rstema investigation
compromises or
interferes with the one conducted.by .th&' local DSS,or the police,
or adversely affects a criminal case ~rior to.disposition, is the
school system sUl>ject. to. any crillinal
or. civil
penalty
Ot'
liability?
. s.

conflicts

Does Maryland law provide any ~rocedurea to follow when

of interest arise in investigations
ot child abuse?

In responding t:o your.inquiry, we face a si9nificant problem

of statutory construction~
It wo'llld .be easy'enough to say, using
the exact phrasing of your.quest.ion, that a school s:ystem has no
authority to conduct its own "child abuse invest.ic;ation." But that
response would not really 4eal with ~e iasue, because a SQbool
~yst.em c:an contend with merit. that an i 1vest.ig-o.tion.
candur"~
solely for the purpose of qathering
evidence for a persor.Ael
hearing

is not a

child abus& ,izlvesti9ation.

'l'he issue is not a matter of t.raino1ogy bu~ Qf st.aLu.t.ary

suope. ~bere is no doul* tha.t the Cenerl -~semi,;y wanted.: only v
specific . agencies, net .. ~c;:.lud.in9 a school system.. ~o. _ dn M
h,v~rt:i.9~1on in cr(lE!l: to !1~~ out how t.o- help the child and
whether

to prosecute tbe

alleged. al:tuser.'

And tbe

legislative

history supPQrts:the conclus.ion that no collateral investigation~

so~eone else .~f the same facts may interfere
with the priaary

investigation.

What we are unable to conclude, under c:urrent lav,

is'that the General Assembly has flatly prohibited a school system

from conducting an. investiqatio~ in order to fi(JUre cut what to 4o
with an emplo!._eeWbo has :been accused. of child. abuse

. our conclusion, in abort, ia that a school system aay conduct

its otm. personnel _inquiry, .but only within.l.iaits that ensure tbe

primacy of th~ ellild abuse investigation.

If the Gen""era'l. Assembly
concludes that a different outcome is prefera})le, it is free to

chanqe the statute accordingly.

More specitically, our opinion is as follows:
In Part I of this opinlon, we conclude that a school syste.m
~ay conduct its own internA1 r9ronnal inveatigallon
C! lileged
Ch1ld abuse by an employee if it complies with the following
liJRitationsi
(i)
'l'be seb.Qo.1.._system... maY.. _ta>t... ~~--. ,riv~ti~tory
a~tJQn prior to the ~iss;ion .. 0., a report about ~e incldent - t.? c
the_.local DSS or the appre>priate - law ~n~e>z;-ceme_nt. agency1. (ii)
1 The term law enforcement agency" is defined as follows:
(continue(! .. )

6iLL

0L

ros

..
The Honora~le Thomas M. Yeager

December 17, 1991

Page 3
the local oss or the police of its
(iii) .~he st:,hool
,srste'll _s~o.~ld_.
.npt int~i~
the .v:ict~m pf'. tJ;ie .. ~;q.~~d J,~J?~se,.the
_..a;lleo.ac1 abuser, or .. e,ny. .9ot_!!!1tial "witness without ~e prior consent
of the local DSS or t!le . .police. v (iv) The school syistem must keep
confidential any information about the alleged child abuse that it
The.. school system should. notify

intention to c.onduc:t an inte;nal.. .. ~y9stigation.

learns during the course of its internal investigation. (v) In

order to avoid any possible risk of a collateral estoppal effect on
a criminal
p'l"o1Utrn1~inn, thQ ac:b~o:I. oyota
3hould not &eex Lu
~cljudicate a fil;'lal di~posi't'ion of a parsonne1 aetion against an;
al"legeci' cbild abuser, where the charges are based o~ the allec;ed
abuse, without th~ prior ~onsent of the State's Attorney.~
In Part II, we conclude that a local superintendent

qf sebools

does not need direct-investigative information to tak~ a_ppropriate

action ag,iirlst. a school employee suspected of Chile! Jtbuse~ With

"court. approval/''

school'

personnel

who

e&-e''-,'mel'ibers . of

multidisciplinary team may disclose infot'llation obtained

lce.\l DSS or the police for use in a disciplinary bearing.
In Part III, we conclud~_that
complete. immunity from liability

'by

the

a school system does not enjoy

if

it

c:onduct.s an independent

per5onnel investigation of an all89ation that one of its

commiteed child abuse.
However, a school ~5tell
undertaking such an investigation in accordanoe with
system's policy would ordinarily be immune frompersonal
for ;\ tl'lr,t, ij)US a~ er omiooion during the i11vl:!1:1Llgaticsn.
In Part IV, we.conclude that neither a
law sets out the spe~ific offense of
investigation of child abuse. Although the
obst.ructing or hindering a police officer

employees
.Employee
a. school
liability

statute nor the common

interfering with an
common law offenses of
in the performance of

continued)
(1) "Law enfore~ent agency" means a
State, county, er munic1.pa.L police depar'bDent,
bureau, ~r agency. .
.
.
(2) "Law enforce~ent agency" includes:
(i) a State, oounty, or municipal
police department ~r agency;
{ii) a sheriff1s 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 ~raetice, this opinion will generally
refer only to "police" investi;ations.

1(

F-7JJ

()<;'J

TOC-

The Honorable TbomasM! Yeager

December 17, 1991

Page 4
duty or obat.r\iction otjustiee could conceivably form the basis of
charges, the facts that would be necessary for sueh charges to be
brought are extremely unlikely . to ~
in a school board s
internal persoMel investigation,
part'icularly if the school board
conducts the personnel investigation within the constraints
discussed in this opinion.
With reqard to civil sanctions,
although a local school system's decision to conduct independent
investigations is inconaia~ent with the 90del policy ot the State
Department of Education, the state Board of Education has no
authority to prevent iDplementation of the local school systeJD's
decision, because tbe moclel State policy is not embocli~ in a bylaw
or regulation.
In Part v, we conclude that in c:aaes where the suspec::ted
abuser is an employeeof the agency charged with responsibil lty for
investi;ating reports of suspected Chile! abuse, tb~L~vestigation
must be conducted by another respons~ble investi9ative aqenay in
or4er to avoid a cct~f.lict ot ...~~u.est.

A.

R BaboolfxstpPtop.el coio1ru
On June 27. 1991 t-b.e Beard of E<llluation of Bova.rd county

aaopted a new 0Policy on Child Abuae, Sexual Al:>uae and Neglect."

The policy acknowledges that validation of suspected child abuse or

neglect is tbe reaponsi~ility of the Boward county Department of
Social Services and the Howard county Police Department.
Accordingly, tbe policy directs a school employee or volunteer to
makean.ilmnediate oral report of suspected abuse to one of these
agencies and to the school principal or the Superintendent of
Schools.
However, if the report alleges that a school employee is the
abuser, the policy requires "(tJhe Superintendents de$ignae, in

cooperation with respansible

law enforcement authorities,
[to)
promptly investi9ate the charg~ against tbe employee and prepate
a confidential report to tbe superintendent." Although the intent
is that the sc:bool systes ~nvestigation be done coop~ratively,
nevertheless
the investigation
ia intended to be conducted by
school system employees.
If, considerinq the results of the internal tnves~igation, tbe.
sur,erintendent has "reasonable causP" ~o c:onol\acle that U1e employee
cn<1a9~1l J.n acts of child abuse or sexual abuse, the superintendent
is to determine the appropriate
discipline,
up to and including
dis211.issal. Suspension or dismissal of a certificated
employeemust

C.":'IJ

t'lf'I

Tt'lf'

The Honorable Thomas M. Yeager

December 17, 1991
Page 5
follow the procedures set forth in S6-202 of the Education Article

ED" Article).

(11

Professional employees of a local school system unquestionably

may ba suspended or dismissed if they are found to have abused a
student.
tD 56-202 allowc a county board of education to suspend
or dismiss professional personnel for, among other t~ings,
" [i )JDJ11orality" and 11 [ml iscenduct in off ice inc:luding knowingly
failing to report suspected child abuse in violation of S5903 of
the Family Law Article ED S6-202(a){i) and (ii).2

I.

.tn addition to enumerating the causes for which a board ~ay

dismiss an employee, ED 56-202 also establishes the due process
rights that the board must accord to tenured employees prior to
dismis&al.3 Before suspending or dismissing an individual. the
county bc:,ard must "send the individual a copy of the charges
against him and qive him an opportunity within 10 days to request
a hearing." ED S6-202(a)(2). %f the lndividual submits a timely
request for a hearinq, the county ))card must hold one, at which the
individual bas an opportunity to i:e heard, in person or by counsel,
and to present witnesses.
ED 56-202(a)(3). Except for assistant
super intendants and higher le,tel administrators in Balti.more City,.
tbe individual may appeal from the decision of the county board to
the state Board of !d11c:ation. EI> S6202(a)(4). Tbet;e procedures

i
I

are

consistent

with

the

due process

mandate of the

Fourteenth

Amendment to, the u.s. constitution. ill, A..t..S.c.,

Bel, of
Edu;. v. Loude;;mill, 4?0 u.s. 532, 542-46 (1985). 11eve1and
While ID S6202 sets

forth . the general scheme under which

tea.cb.er dismissals must be considered, it is silent about the type

and quantum
_....... of evidence required bef(?r& the bc,arc1 may disJnias the
2 Professional personnel within the sc~ of ED ,56-202 include
teachers,
P.rincipals,
supervisors,' assistant superi.ntendents and
"other ,Professional. assistants."
ED 56202
Diseiplinaey
procA~d~
for non-professional em~loy~es are not addressed in
statute
i;ut may be part. of the n'9ot1.atec1 agreements between
e111ployeegroups and local school systems.

ca,

1 Professional public:
tenure" after two years
gdu~,ti~,
237 f'. Sl.U)p. 222
1!76 .herefore,
tfiey may

school employees in Maryland ae~ire

emi,loyment.
v,
of
(D, Mel.), .a.f_f_!_d 34
2 464 ( 4
:i..r.
be c!ism!sseaonly for .cauae\.. sub~ect t:n
st,tut~~ duP ~t~oas provi3ions. Tlluse prov1sions, nowever, do
not afply to ~robationary staff, those who h~v~ w~~tea for the
s~hgo oy~tem Yot ll:Ulw than tVo yeara; ED S6202(b).
of

\apa5

Boe

4 Neither the statute nor the due process manclate requires

comparable procedures if the board's personnel aetio~ falls short
of a suspension - for example, a transfer or the imposition of
leave vi~ pay.

I
\

6c.U osz 10

.
The Honorable Thomas M. Yeager
December 17, 1991

Page 6
teacher.
itnis sec~-jon does not specifically describe the
procedural or sw:,atantl.ve elements of tbe hearing, other than to
require a prcmpt hearing and to grant the individual an oppo~unity
to be heard ~fore the board, in person or by counsel, and. to bring

witnascas."

64

r,plnions of the Attorney General

12s, 12, (1979).

Nor does ED 56-202 provide guidance al:)Qut the board's inv~stigation

of charqes for d.ismias~l.
Pinally,
nt!li~
the. ~tatuta rior its
legislative
history
apecifioally .. conam'plates~-,:the
difficult
situation in which an aployee ia. char9ed11itti child abuse. Thus,
- ED 56202 does not expressly vest local school. officials
with'.. the
authority :to conduct a.n independent investigation
of sus~ected

Child abuse ):)ya school ~loyee.

standing alone, the a~$ence of express authority in ED S6202

to conduct an investiqation would not preclude a sc;hoolaystem from
doing so.
The statute _plainly restricts school officials'
authority t.n tH cz1114 aa "' -rrryaa \a airOWll~twn
..es In WUl.l!ll !.Al!'! 11
sufficient
evid.anoethat the emP.lQYee
has coni t.eAc! l.lh ,..fl ~,.. .. ~c
euumw.c1.Luu .11\ ~b-iU:iJ.(l) ancl in wh!.cb the employee bas l>een afforded
an opportunity to present evi4enc:e in his or her ovn ciefense.
Resetar v.. Sta:t;e BPD"1 Qf-!!'!'el~lon, aa, !Ida 5:,7,. ,r;3,. 399 A. 24 22=
(~979). .This. bur.d~ .qn the ac:bo.ol board, ~o pres~t
eyidence
..sufficient .to watt~ 4isciplin,
implies the board' authority to
find out whether . Guell evidence exists.
Confr~nted vitb a somewhat
analoqous question - *ether, heari.ngs under ED 56202 may be
cond.uctad by an appointed bearing examiner in the absence of
explicit statutory authorization - the Attorney General det~ined
that the use of b~uing of.ticer& was not precluded.. 64 OP..~ni ADI of

the Attorney GWU:ll'Ml

at .1:l~.

Hence, we conclude that the Bovard county Board of Education

under the Education Article to develop the facts that
it would need to decide whether an employee should be disciplined,
unless
this authority
has been curtailed ~y other
lw specifically,
the provisions of tbe Pamily Law Article dealing with
child abuse. Indee~,.as a practical matt.er, no school system can
avoid the immediate issue. whether the ap1oyee should be removed
from contact with children pending further investigation.
has authority

a.

Qhild Abuse fUbtit1a

1.

gm-rent 1tat.at

The General Assembly has enacted a comprehensive child abuse

prevention, detect.ion, and treatment program.
Th.is legislative
plan,

einbo,cUed in -SUbtitle

oJ~~~

Family LawArticle
to identify
and
pr"aee~- abused i=hildren and er it!harprocedures to punish child
abusers. The proc:ess involves three"'d.is1Sinasteps:
the reporting
of suspected. abuse; an investigation
of these reporte.; and, if

cnFL" Art1c:le)., provides

for~.~v1l

,eroced~~

r.)> ()~) tne

The Honorble Thomas K. Yeager

December 17, 1991
Page 1

abuse is verified, the provision of services, the initiation of

court proeeedin9s, or both.5
Notwithstanding any other provision of law, including any law
on pri vilegee! coaunications,
each health practitioner,
police
officer,
educator, or humanservice worker acting in a professioraal
capacity v~o has reason to believe that a child has been subjected
to abuse is required to make an oral ~eport,.by telephone or direet
communication,. aa. soon as possible to the loca~ I>SS er the police.
n. 55704 (a) (1) and. (b)(1) (i).
'rhe agency to Which the oral
report is made must immediately notify the other agency. Ft ss704 (b) (2) (i).
Not late.r tban 48 boun after the contact that
caused. the individual to believe that the chil~ had been subjected
to buae, the professional must ~ea written report to the loeal
DSS with a copy to the local State's Attorney; FL ss704(b)(1)(ii).7
Promptlyafter receiving a report of suspected abuse, the
local DSS or t:he police, or both if .jointly agreed on, are to make
a thoroug-h investi9ation of the report to protect the health,

s Maryland law also provides protection

for children

suspected

of being neglected.
However, because Y.our qastions pertain tc
case$ where a school employee is suspecte4 o~ child acuse, this
opinion focuses on chilcrabuse only.
6 "Abuse" means:
Ci)
the physical injUZY of a. child bv
any parent or otlier person wno has 11ermanent
o:r: 'feJIO)orary custod_y or responsibility
for
su~:r:v.rsion of a chird, or l?Y any bouaahold or
family
member under ' circumstances
that
indicate that the child's health or welfare is
significantly harmed. or at risk of being
siqnif ioant.ly harmed; or
.
( ii)
,sexual ab\Jse of a child, whether
physical in)uries are ~ustained or not.
(2) Abuse" does not include, for that retson
alone! providing a child with nonmedical
reliq ous remeaial care and treatment
recognized by State law., ,
FL S5-701(b)(l).
7
With certain exceptions, . a person other than a health
practitioner, police office, educator, or bum~n 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.

6Z:U osz ros

The Honorable Thomas M., Yeager

D&Cember

1?, 1991

Page 8
safety,
and welfare of the child or children.
FL $5706(a) (1). 8
Moreover, it the report alleges
sexual abuse, the agencies
responsible for investi9ating reported cases of su~p,P~. oc>eual
~vcc,
inclu.dil11::1. Liie 1oea1 USS, the police, amt the local State's
Attorney, are to implement "a joint investigation procedure for
conducting joint investigations ot sexual abuse." Ft. S5706(f) (l).

~e

joint

investigation procedure

JDUSt

include "appropriate

techniques fo~ expediting validation of sexual abuse complaints";

inc:ludc techniques desiqna4 1:o "decrease the potential for physical
harm to the child" an4 "decrease any trauma experienced. by the
chilc:l in the investigation
and prosecution of the ease": and
"e.stablish an ongoing .training pr~u for persoMel involved in
the investigation or proaecutio~ of sexual al:>uae cases. FL ss?06(f)(2).
Maryla.n.llav requires. the investigation to be beth tbcrougb
and timely.
.Within 24 hours after rec:eivin9 the report of
.s~pe,f=~ed abuse, the local DSS or the polioe must see the child,
attempt to have an onsite interview with the child's caretaker,
and decide an the safety of the child and. any other children in the
ca.re or custody of the alleged
abuser.
FL SS-706Cb)
The
investigation shall include, amongother things, a deteniination of
the "nature, extent, and ea\\&e of the abuse, if any; and, if the
suspected abuse is verifie4, w~ determination of the identity of
the person or persons responsible Ft- SS706(C). To the
extent possible, the il\Vestigation must. be completedwithin 10 days
after receipt of the first notice of suspected ab\l$e by the loeal
oss or the police FL SS-70G(g)(l). 'l'h lOQalDss o~ the police
must aubmit f1rsttbeir preliminary findings and later their final
inYestigative report to. -.the State' Attorney.
FL SS-706(h) and
(i).

Based on its finding and treatment plan, the local DSS must
"render the approJ:)riate ael"V~ ~-9 in the ~st -+~.h~es"& of the
ch11, in~lu4ing, when indicated, petition~the
juvenile court
for appropriate.relief PL S5710(a).
If a report has bean
made to the State Is Attorney. and- the State' a Attorney is not
satisfiecl
with the_ recommendation, the Statas Attorney may
petition the court at that ti.a to remove the child if the State's
Attorney concludes that the child is in serious physical danger and
an emergencyexists. n, S571~(b).
The St.at.e's Attorney may also

8 On request by the local DSS, the State's Attorney assists in

the investigation. FL SS~706{d).
9

This relief can include commitmentof the child to tbe local

DSS and rQmoval of the child
from the parent's
home.
S3820(c) (1)(ii) of the courts Article ("CJ" Article).

The Honorable Th01118.s M. Yea~er

December 17, 1991
Page 9

file criminal charges against the abuser.

Maryland Code.
2.

r,eqt,111;m

Article 27, S35A of the

,,,toa

?n 1963 the General Assembly enacted the first statute

pertaining to the mistreatment ot children. see ChaptA~ 74), ~avo
of Mtu:yland 1ta).
unaer this act, codified at former SllA of
Article 27 of the Maryland Code, any parent, adoptive parent, or
other person who bad 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 de9ree as to require
medical treatment was guilty of a felony and up~n conviction
sentenced to not more than fifteen years in prison. Chapter 743
p.:ovided no reporting or investigation procedures.

zn 1966 tba General A.Ss.emblyestablished the local DSS as the

principal agency to receive and investigate reports of suspected
abuse. in Chapter 221, Lawa of Maryland 1966. Under this act,
,..,.,,.,:y hoa.1t.b prac:ti tiomu, ae1uea'Cion, heal th, mental heal th, or
social worker or law enforcement officer" who contacted, examined,
attended or treat~d. a child and believed, or had reason to believe,
that a child bad sustained physical injury as a result of abuse"
was required to make a report in the manner provided by statute.
The person making the report waa required to do so orally to the
local Dss an4, if the:reporter believed or had reason to believe
th.at immediate protection was needed, also make a report to the
police. bf! Article 27, former S11A(c) and (d). Within 48 hours
ot the contact that disclosed "th& possible ma.licioua treatment or
beating, the individual. waa required to make a written report to
the local DSS an4 to the local,State's Attorney.

Chapter 221 also ilDplied that an agency.other than the local

DSS receiving a report of suspected abuse was not authorized to
cond~ct: i't.s own investigation to determine whether the abuse had
o~urred.. JJn~~ ...~e ~.'!~- ~\.;~a.~.. ~~~,-:..~ra.._.afienP}'
,~t
.~e~iv:e_d,,.an
F..~~ .o; .~i~ien .~o~ ..t:'J. .sst>t9_~,Ji~,.~r$) ~ priva~ ._P&J:'..ff -,w~s

.reczi!~re4. .t.9-~J;~fer J.t .~o -~~ .lq_~l.,p~~- Former S11A(4). If, after

lnterviewln9 tbeprivate party ~"iio reported~~ suspeoted D.buse,

the local nss det&rmined that there was "probable cause to believe
that a violation ha4 occurred, then the local DSS was required to
co:tduc:t an investigation as provided by the act. The state's
Attorney, the police, "or social aqencies having jurisdiction" were
required to assist in the investigation "IJpon teqpest by the
loeal department [of so~ialservices]." Former SllA(e) (emphasis

...

,.. '

..

,....,...

. ,..,..

The Honorable Thomas M. YeaCJer

De.cembe>: 17 , 19 91

Page 10

added).10 Thus, as of 1966, the law authorized only the local DSS
to investigate.
In Chapter 835 of the Laws of Maryland 197l, the General
Assembly for the first time authorized
the investigation
to be
conducted by the loc:al DSS .Q the police.
Accordingly, Chapter 835
mandated certain professionals, including educators, to makeoral
reports of suspected awse to either the local t>ss or the police.
Tbe required written report was to be sent to the local DSS and a
copy to the State's
Attorney.
Article 27, former S35A(d)11
Neither the local oss nor tbe polic=e were to proceed alone.
Rather,

the one to which the oral

report

was made was requ.ire4 to

immediately notify the other. The local DSS and the police were
not prohibited trom jointly agreeing to coop~ative arrangements
with othe: agencies.

In Chapter 296 of the Laws of Marylan4 1984, the General

.Assembly oc:,mpletely revised, restatecl, and. reoodified the laws of
Maryland relating to family matters by enacting the Family Law
Article.
A& part of that revision, the Ganual Assembly recodified
in the naw article th& procedures relatinc;r to Child abur:. ~t
form,nly appeared in tba ~~lmii\alC'ode. Nothing su99ests that the
.General Assembly intended a change in the then existinq
investigational procedure thr.ou;h that revision.
Cbapter 296,
R~visors Note to FL $5-903.

. ln tbe 1984 session, the General AsseJ1mlY also enacted Chapter

611, pertaining
specifically
to child abuse investigations.
Chapter 611 reflected the General Aasemblys concern for protection
of the child bf rPcr.tiz:in9, mnong other 1..t1in91, .5oint: efforts among
the agencies responsible for investigating child abuse
. .

Under Chapter.611, the l.ocal DSS, the police, and the State's
Attorney within.each cot.inty were required t.o enter into a written
agreement that specified standard operating procedures for the
investigation

and

prosecution of reported cases.of

These agencies ware also required

child

abuse.

to iaplaent:

a procedure for
conducting :).oint ,yestigat.ions of child.sexual abuse. Former FL
SS905(e).
Sigriltlc:ant1y; -the joint: investigation procedure was
required to include techniques designed to c1ecrease
any trauma
..
'

lO Chaoter 221 also established

for the first time tbe local
based on its findings,
to render
approP.riate services in the "best.1nterests
of the chil.d1 including,
when indicated, petitioning the juvenile court on benalf of the
child for the added protection tnat either commitment or c\1Stody
would provide.
Fonner SllA(f).
,
departmenti6s responsibility,

11 Former SllA hed been r~codifiec1

of Maryland 1970.

as SJSA.

Chapter

soo,

Lavs