Part B-3 DJ VU AND SLEEPING WATCHDOGS Dejavu All Over Again Keep - - PowerPoint PPT Presentation

Part B-3

DÉJÀ VU AND SLEEPING WATCHDOGS

Dejavu All Over Again

Keep the following in mind: By the end of the summer of 2013 the district had spent more than $42,000 in attorney fees for Attorney Lindsay to prepare an investigative report and make recommendations regarding bullying problems at the Washington Elementary School. After open record requests and litigation from 2013 to 2016 and being repeatedly reminded about the investigative protocol for alleged bullying one would expect that the district would now be extremely diligent in following the required bullying protocol. The district was also held responsible for $25,000 in attorney fees incurred by the record requester due to the open records violations. The school district also had costs associated with its own legal representation. As noted in a previous slide, on March 2, 2017 Attorney Osinga made an open records request to the district about the December, 2014 parent complaint that Superintendent Ertl testified about in his February, 2016 deposition. However, on March 7, 2017 you will now see that there was an entirely new bullying incident at a district elementary

• school. It would seem logical that the district’s bullying protocol would finally now be followed and the

accompanying investigative reports would be generated. As also noted on a previous slide, on March 13, 2017 Attorney Osinga followed up his March 2, 2017 letter by requesting additional bullying related documents related to the February, 2016 Ertl deposition. On March 29, 2017 Attorney Osinga and his law office sponsored a seminar on Wisconsin’s Open Records law at the Radisson Milwaukee West in Wauwatosa, Wisconsin. The press release announcing the seminar is included in the next slide.

This was a press release to area media regarding the subject matter

• f the seminar.

No school board members, school board candidates, or Wauwatosa school district administrators showed

• up. No members of the local media

showed up or inquired about the facts recited in the press release.

EXPLANATORY NOTE:

At the outset it should be noted that there are 3 parties or entities that acted appropriately in the situation you will see described: 1. The Student Victim. The victim appropriately did what the bullying policy envisions, i.e. report the assault to someone in authority at the school. 2. The Wauwatosa Police Department The department received a report of an assault at Underwood Elementary at 9:09 pm and at 11:29 pm an officer was taking a statement regarding the nature of the incident. The officer determined that while the victim had been kicked in the stomach but that there were no actual injuries from the incident. For a law enforcement agency the matter of verifiable injury is important in determining whether an actual battery occurred. Once the officer could not verify an injury the officer appropriately referred the matter for follow up by the school district. 3. Leigh Anne Fraley

• Ms. Fraley was approached by the mother of the victim on April 1, 2017. The mother described what had happened

and what she viewed as an unsatisfactory action by the school. Ms. Fraley was a school board candidate at the time and had not yet been elected to the school board. She appropriately passed on the information to Superintendent Ertl and then school board president at the time, Michael Meier. She also advised them that as she was campaigning around the city that she was hearing repeatedly from parents that bullying was being enforced inconsistently in the district.

This is the April 1, 2017 email from Fraley to Superintendent Ertl and then Wauwatosa School Board President Michael Meier regarding the new student bullying incident. The problem Leigh Ann Fraley, now a school board member, pointed out was that during her school board campaign she spoke to people in Wauwatosa who complained of a lack of consistency in dealing with bullying: “I think it is important to know that the topic of inconsistent responses to bullying has come up in conversations that I have had with parents across the city. Today alone, it came up 3 separate times, with no prompting ……” *When policies such as the bullying policies are enacted they are intended to help provide that very consistency. It should not matter who the bully is, i.e., whether a student, a teacher or a principal. When students are involved it does not matter whose child the perpetrator is or whose child the victim is. It does not matter whether it is the first incident involving particular students or if it the tenth in a series of incidents.

This was the principal’s Discipline Referral Form This contains a brief description of the incident as related by the victim to the principal. Note: In the open records request it was specifically requested that the names of the students be redacted to comply with student confidentiality requirements. This document received from the Superintendent’s office, however, included a distinctive first name for

• ne of the two students who perpetrated the assault. Here that name

has been covered over with a pink strip for purposes of this presentation.

This is the Wauwatosa Police Department report. The Wauwatosa Police Department would generally not investigate most types of bullying conduct. The investigating officer sought to determine if the incident is one which a law enforcement agency should

• investigate. Once it was established that there was no physical injury

the matter was left to the school district to address within the school context.

This is an email to Superintendent Ertl in which the mother of the victim relates the facts of the assault as told to her by her daughter. The e-mail appears to indicate that since the assault the victim has been reluctant to return to school and was removed from school for the remainder of the year.

This is the Open Records request generated by Osinga Law Office and sent

• n June 6, 2017

This describes a commonly known incident of apparent bullying that

• ccurred on or about March 7, 2017.

The request asks for public records that would have been generated under policy 5517.01 during the report and investigation of the incident The request also makes the point of not wanting any identifying information in regards to the students involved so that their privacy is

• maintained. This also deflects the ploy of calling these records student

records and thus immune from disclosure.

This is the response to the record request by Superintendent Ertl. The response continues to reflect a fundamental and continuing misunderstanding about the content of the bullying policy. The incident as described by the victim on its face makes it probable that some level of bullying conduct occurred. It was a 2 on 1 assault in a school

• bathroom. It involved physical and verbal intimidation that apparently

resulted in no physical injuries but was later shown to have left fear in the victim. Under the bullying policy 5517.01 it was mandatory to investigate and follow the provisions of the policy. If the investigation supported the existence of bullying then that should have been duly noted and the conduct punished in an appropriate fashion. If it didn’t support a finding

• f bullying that should likewise have been noted and an explanation

included as to why. Perhaps the most frustrating aspect of this response is that while simply ignoring the bullying policy’s protocol the decision was made that the incident simply did not constitute bullying. This is the proverbial “putting the cart before the horse”. The explanation offered was that “because the incident that is the basis for your request was an isolated instance with the students involved, it did not constitute bullying such that a complaint form would have been completed.” The bullying policy, however, says nothing to indicate that an “isolated instance” cannot constitute bullying. The policy does makes passing reference to the fact that on some occasions the incident under review may have been preceded by other bullying incidents. But nowhere does it state that prior incidents are a requirement under the policy. Obviously, a string of bullying incidents must always start with the very first one. In addition, some bullying conduct can be directed at multiple victims so the identity of the students involved may change repeatedly.

This notes the response as to whether school board members were aware of this incident.

The “Fourth Concern”

As you will see in the upper right hand corner of this document this was exhibit #7 from the February 3, 2016 deposition of Lyda Osinga. She testified that it was a rough draft of a fourth concern that she had contemplated filing in addition to the other three concerns she did file with the district. It is a summary of both the problem and the potential solutions.

Page one of the “Fourth Concern”

Lyda Osinga testified about this document in her deposition on February 3, 2016.

This discusses the district’s bullying policy and the accompanying administrative rules enacted by the district administrators.

Page 2 of the “Fourth Concern” discusses the real life effects of a failure to enforce the bullying policy. The effects include:

• Effect on student victim
• Effect on student bystanders
• Effect on progressive

discipline for the offending teacher

• Effect on parents
• Potential legal liability

• Effect on the district to compete with other

schools for students

• Effect on offending teacher not being given
• pportunity to

recognize failings and improve Discussion of solutions: Enforce Existing Policy as enacted. Make possible changes to make the policy as “kid friendly” as possible. Create and track all reports of bullying. Clearly state and identify the conduct in question. Apology to students for the failure to enforce policy in the past.

How “research and copying charges” can be used to d dis iscourage open record requests

The next six slides are included to illustrate how public record custodians may attempt to inhibit certain record requests by a means other than a simple denial. The record custodian instead attempts to discourage the record requester by quoting excessive fees for services that are not part of the legally allowed “research and copying” costs the requester can be charged for. Lesson: If a requester under the open records law has doubts about the amount quoted do not be afraid to ask for an explanation.

This January 5, 2015 letter from the Wauwatosa School District begins a series of letters between the district and the law firm that Attorney Osinga had secured to make anonymous record requests on his behalf. This letter indicates that the district is requesting prepayment for certain record requests in the amount of $1,586. The letter infers that these charges are primarily for locating the records.

This is the January 15, 2015 letter sent in

• response. The amount quoted by the district

for “research” is being challenged based on the nature of the records being requested A clarification is requested from the district.

This is the district’s February 5, 2015 letter

• f clarification for the quoted charge of

$1,586 for research. Note the words “double checking” and “redactions”. These are discussed in subsequent letters.

This is the February 13, 2015 letter in response to the district’s previous letter. The first portion of the letter points out the disadvantage faced by virtually all public record requesters. They lack direct personal access to the records and must rely on the diligence and veracity of the record custodian in making the response. The letter to the concept of “double checking” previous responses to earlier requests and then attempting to charge the requester for that cost.

This is a March 17, 2015 letter to the school district that raised several issues. The letter questions whether the district is properly retaining public records due to its inability to furnish records that presumably should exist. The letter also seeks clarification as to who is responding to the record requests that have been made. Some have been responded to by Superintendent Ertl while

• thers by Human Resources Director, Jack

Bothwell. This raises two potential issues: First, if someone other than the DRO (Designated Record Custodian) is responding would that response be deemed valid and official. Second, the actual DRO could later attempt to deflect blame for any failures onto a subordinate.

This is an April 20, 2015 letter to the district. The letter cites a Wisconsin Supreme Court case that holds that the district’s prior attempts to charge for “redaction” is simply not allowed under the open records law. The letter also indicates that the district’s response regarding a request to see a letter of recommendation from the district’s literacy consultant, Doug Buehl, is now accepted by the record requester as the district’s final position

• n that issue. Because the Buehl

recommendation had been contained in an email sent to Principal Frank Calarco the letter points out the obvious simplicity of resolving this matter by using the superintendent’s personal access to him. Note: After the open records litigation was filed the district did eventually come up with a copy

• f the Buehl letter.

What the persis istent use of f the open records la law has established and the im important facts the publi lic should ld know

• Inconsistent enforcement of district policies

relating to bullying and public record retention

• Attempts to discourage record requesters
• Lack of concern about the safety and welfare of

students

• Lack of professionalism
• Lack of basic honesty
• Lack of desire to address and solve problems

Why sleeping watchdogs create an important role for “private attorneys general”.

After examining the prior materials you may have had a question as to how Attorney Osinga was able to enforce Wisconsin’s Open Records Law by taking the school district to court. This is where the role of the “private attorney general” comes into play. This concept involves incentivizing private parties to enforce certain laws that have significant public interests involved. Chapter 19 of the Wisconsin Statutes specifically gives members of the public the right to not only request public records but to take government entities to court when they start to play games with that right. The open records law allows a court to award not only attorney fees but also monetary and punitive damages to the record requester.

Who are these sle leeping watchdogs?

Watchdogs are generally expected to raise an alarm when something is not right and either family or property is put at risk. However, if the watchdogs sleep through these events then they are of no value. The first group would be members of the publicly elected Wauwatosa school board. The second group would be members of local media

• utlets.

Watchdog #1: School Board

The next watchdog would be the school board for the Wauwatosa school district. It is empowered to provide oversight for the management of the school district. They have not been kept in the dark about at least some of the events. The board at least appears to value the idea of “go along to get along”.

In fairness, many school boards may often not be privy to specific factual information on what is happening in the district’s schools. As with many governmental entities the information can be scrubbed or hidden by bureaucrats to prevent adverse facts from being aired. Local school boards may also have adopted an undue deference to the decisions of the “experts”, i.e. school district administrators. This has become increasingly prevalent issue on the federal level with the deference given by courts to administrative agency decisions. From the previous materials, however, it is evident that the Wauwatosa school board had been made aware of

• r should have been aware of some of the dysfunctional
• events. In August, 2016 the board members heard some

blunt comments at a school board meeting and then were provided by e-mail with a sampling of the documents you have seen.

Watchdog #2: Local Media Outlets

The material provided in this presentation on

• pen records law violations has been ignored

by the Wauwatosa school board and by local media outlets. As a result it has not been the subject of public discussion. In this and the subsequent 3 slides is a copy of a May 9, 2016 press release that discussed the final open records case court decision in the context of an almost contemporaneous incident involving African American students and the principal at Wauwatosa West High

• School. The apology subsequently issued by the

school district is attached to the right and on the next slide

This is the press release issued on May 9, 2016 In April and May of 2016 there were multiple instances in Southeast Wisconsin where racial discrimination had been alleged. This included Wauwatosa West High School and a school in the Kenosha area. The records from the open records litigation also indicated a problem that had festered over a lengthy period. Attorney Osinga invited local media outlets to request 50 pages of documents he had available for their

• review. He received no response to this invitation.

The second page of the press release

Other local media outlets that were contacted

What is troubling is the fact that on two prior occasions there were public record documents that could have been accessed by the media to provide information on what was occurring in the Wauwatosa School District. The first was in June, 2015 when the petition for writ of mandamus was filed with the Milwaukee County Circuit

• Court. That petition outlined a number of the troubling

events that had occurred in the district. The second was in April, 2016 when the circuit court handed down its decision that the school district had committed multiple violations of the open records law

If If you are a teacher what does all

• f this

is tell you?

A couple of key lessons to be derived from all of this: #1. Keeping information from the public can be important to educational bureaucrats in local school districts. Some of them will go to extreme lengths to maintain secrecy. #2. School district policies do not necessarily apply the same way to all

• people. Most members of the public recognize that things happen in a public

school that can’t always be controlled. However, they do want to see that the response to those events to be consistent and in accord with policies that have been adopted. The public, for example, legitimately expects a bullying policy applied to not only the students who bully but district employees who do likewise. #3 Do not rely on the designated public interest watchdogs. Become your

• wn watchdog.

Pay for Performance or Doll llars for Dysfunction?

Wauwatosa School Superintendent Phillip Ertl 2015-16 Salary: $178,044 Fringe Benefits: $ 43,365

This website includes a second presentation from Osinga Law Offices. The second presentation will shift the focus to a different Wauwatosa school district policy. For teachers it will hit a lot closer to home, i.e., teacher evaluations and teacher compensation policy.