Presentation B-2 Part 2 The reality: How the policies on open - - PowerPoint PPT Presentation

Presentation B-2

Part 2 The reality: How the policies on open records and bullying were really implemented.

#2 THE FIV IVE OPEN RECORD REQUESTS FROM JUNE, JULY 2013

The next slides focus on five written open record requests that had been made by Attorney Osinga in 2013 and which focused largely on potential records relating to student bullying.

Ertl: Not many open record requests are made to the dis istrict

Question: “How often do you rely on legal counsel to respond to

• pen records requests?”

Answer: “I don’t know. I couldn’t tell you how

• ften. We don’t have a

lot of open record requests….”

June and July ly 2 2013: Summary ry of the contents of the 5 5 open record requests

• 1. June 18, 2013 The first public record request was for

bullying records compiled under district bullying policy. These were a set of detailed requests for records regarding particular bullying incidents or behavior or the reporting involving such incidents in 2010 and after

• 2. June 26, 2013 After the district responded to the June 18

request it was modified to narrow the request and set an

• rder of priority in responding
• 3. July 1, 2013 This was a simple request for a copy of an

earlier version of the district bullying policy. The letter referred back to a previous open records request #2.

• 4. July 10, 2013 Submitted public record requests for

additional detailed records pertaining to bullying reports

• 5. July 22, 2013 After the district response the July 10

request was modified again and was directed at records relating to teacher bullying

2014 open record requests ---

• -- ANONYMITY:

A change in in approach for requesting public records from the school dis istrict

• On May 22, 2014 Attorney Osinga began making anonymous open record

requests through a local law firm. Anonymous requests are specifically allowed in the open records statute.

• From past experience as a criminal prosecutor Attorney Osinga had a

professional hunch that the district’s answers might well be different if the public records custodian did not know it was him making the requests. Using anonymity in this fashion is similar, for example, to having an undercover officer make a drug purchase as part of an investigation. Anonymous requests allow a record custodian the precise opportunity to act in the same way he or she would act if the requester was a member of the general public.

• The first response in May 2014: what provided and what not provided. Not even
• ne of the five open record requests from 2013 were included in the response to

the May 22, 2014 request.

• Additional public record requests were then made over the next year consisting
• f requests for various documents with district responses to those requests

May 22, , 2014: The fir irst anonymous record request

The attorney’s letter states: “This office represents an entity that has an interest in publishing a series of articles related to Wisconsin school district operations and administrative and employment related practices since the passage and implementation of Act 10 ….” “I am only requesting a copy of any actual, written Open Records request(s) made to your district (since May 15, 2013)

The subject of making anonymous requests was apparently the source of some consternation the school district’s central office. Attorney Osinga ultimately chose not to remain as an anonymous record requester. When Attorney Osinga was deposed under oath he was asked repeatedly why he made the open record requests in 2014 and 2015 in an anonymous fashion using a law firm to submit the requests. This excerpt from the deposition provides an explanation of the rationale for the anonymous requests.

Question: “………..why didn’t you want the district to know that you were requesting these documents? Answer: “I had say a hunch, a professional hunch that the response that I would get from the district might be as what I (later) experienced with the district…” Answer: “…..We drew attention to the records not provided but didn’t specifically state in that fashion that you just described the exact records and the date that they had been generated in 2013.” Question: “ Why not ask the district for your personal five public record requests prior to filing the petition?” Answer: “The reason being it was my perception that the district was not responding in a forthright manner to both this request and the subsequent ones where we drew attention back to these …. five requests.”

Not wanting to drop the issue of why anonymous requests were used the school district’s attorney later comes back to the issue. He attempts to connect it to the fact that his wife, Lyda Osinga, had filed an age discrimination complaint related to the district’s salary level assignment process. Question: Can you explain to me why you didn’t want the district to know it was you making public records requests? Answer: “…….what had been evident to me was that the district was not following its own policies. In this instance it was in regards to decisions about the placement and salary categories and that kind of thing, and that led me to essentially be concerned, as I said, that if they were aware that I was making the open records requests, the response would be different….” Question: “And why did you believe that the response would be different? What caused that belief? Answer: “I wouldn’t call it a belief. I think I earlier testified kind

• f a hunch or maybe a suspicion and it could have---you know, it

could have panned out that they would have given us all of the twelve requests. They provided us with seven ….. so my hunch was sort of found to be well-founded, I guess.”

This is an excerpt from Superintendent Ertl’s testimony at his October 18, 2015 deposition. Likely without realizing it he actually confirms Attorney Osinga’s personal hunch that it was necessary to make anonymous requests: “….why would we conceal something that we know he already has? To deny giving him access to something he already has, that makes no sense.” Attorney Osinga’s hunch was, in fact, based on the inverse proposition, i.e., would the district provide access to records that the district didn’t know that he had due to the fact that the requests were made anonymously? As reflected in the circuit court’s ultimate finding and order the answer was: “NO”. It is not unreasonable to recognize that denying access can make eminent sense if the records reflected some troubling information that could be embarrassing to district administrators.

July 1 , 2013 request

This was the third of five requests made back in 2013. The district provided a copy of this in response to a later records request but the first, second, fourth and fifth open record requests and responses were strangely omitted in response to the May 22, 2014 record request.

A la later request – the wordin ing now focuses on student bull llying is issues whic ich again were the prim imary ry subje ject matter of f the fi five record requests in in J June & July ly, , 2013 2013

This request was intended to give the Wauwatosa school district a second opportunity to provide the 5 requests from 2013 all of which had referenced the problem of bullying.

An April 20, , 2015 open records request

This request made several record requests but included the invitation to “supplement those records that were previously furnished” This was an additional attempt to provide documents like copies of the 4 remaining record requests that had been made in June and July of 2013 but had not been previously furnished.

The district’s Response to the 4-20-15 Open Records request

Again no reference in this response to the 4 record requests from 2013 not previously disclosed.

#3 Attorney Kraig in investigative report

The district hired Waukesha Attorney Lindsay Kraig to do a comprehensive review of the issues surrounding student bullying at Washington

• Elementary. By the end of the summer she filed a

report on her findings.

Court found a vio iolation

The failure to furnish a copy the Kraig report was found by the court to be a violation of the Open Records Law.

News Artic icle About Bull llying & Meetings Wit ith Parents

2013 was a busy year regarding bullying issues. District administrators were faced with multiple issues regarding bullying. The article to the right reflects one instance where they were actively dealing with the concerns of parents regarding student on student bullying Washington Elementary School

This is the August 29, 2013 letter from Attorney Kraig to Superintendent Ertl summarizing her investigation. As part of the process Attorney Kraig spoke with Superintendent Ertl and School Board president Michael Meier and received copies of e-mails that they had received from parents.

This is testimony from Superintendent Ertl confirming the amount of money spent on attorney fees for the investigation by Attorney Kraig.

Attorney Kraig states: …School staff did confirm that, during the 2012- 2013 school year, certain students were subjected to inappropriate conduct (e.g. name- calling, threatening language, swear words, invasion of space, and unwelcome physical conduct, such as pushing, hitting, kicking, and shoving) by second and third grade students while at school, and have been negatively affected (physically and/or emotionally) as a result.

The school district ultimately spent more than $42,000 in attorney fees on Attorney Lindsay Kraig’s investigation according to the invoices and payments received in an open records request.

#4 PARENT COMPLAINT

In some instances the parents of students will personally bring bullying complaints to the attention

• f school administrators.

Alleged bullying by coaches and administrators

What follows is the redacted complaint by a student’s parents against the Whitman Middle School Principal Keranen, Associate Principal Kellerman, Coach Taubl and Coach Pietrowski. There was a hearing on this complaint before Superintendent Ertl on December 16, 2014 where the parents and the district employees implicated were all in attendance. Superintendent Ertl was responsible for this hearing because the district bullying policy states the Superintendent is to conduct the investigation when principals are accused of student bullying

The December 16, 2014 “Parent Complaint” Page 1

“Meeting purpose: To document and file a complaint against both Coach Toubl and Coach Pietrowski…..” “…(my son) was called out

• f math class to discuss

why he skipped (basketball) practice…. The principal (Keranen), vice principal (Kellermann) and athletic director kept him

• ut of math class, in this

meeting for approximately 30 to 40 minutes.” “…in the future, I do not want my son taken out of class to address any issues regarding extra-curricular activities, without my prior

• consent. “

Page 2

“My son has played many sports for the last 8 years and has had all kinds of coaches, both good and bad but has never experienced bully coaching at this level. His behavior crossed all lines of professional conduct.” “After speaking with other parents, coaches, teachers and students, I have heard numerous accounts of his similar bullying behaviors which include berating, swearing, and demeaning language.” The parents quote the district’s policy: “Policy 5517.01 (bullying) states in part…. The board of education is committed….”

Mid iddle le School coaches must dream about bein ing the next xt Bobby Knig ight

From the October 16, 2015 Deposition of

• Supt. Ertl

Question: “Have you ever been part of an investigation (into a report of bullying) like that? Answer: “In my career?” Question: “In your tenure at the Wauwatosa School District.” Answer: “I don’t recall if I have been.”

Ertl’s first deposition continued ….

Question: ….you didn’t have any kind of meetings in 2014 with parents about bullying?” Answer: “Not that I recall. Question: “And you didn’t have any meetings with coaches about bullying in 2014? Answer: “Not that I recall.”

Note: see the testimony of Principal Keranen the additional testimony below at a December 2, 2015 deposition and Ertl’s later version on February 3, 2016

An April 20, , 2015 open records request

This request is for any additional bullying related records from June 17, 2014 to April, 2015. This was a final attempt to determine if the district would, in particular, furnish copies of the December, 2014 parent complaint. Note this specific language in this request: “records …. you became aware of as superintendent” Note, too, how this request directly references Policy 5517.01 and contains the following language: “this request makes no distinction between the alleged perpetrator being a district student or a district employee.”

The district’s Response to the 4-20-15 Open Records request

The district’s response: “…Some complaints have been received from students since June 17, 2014 alleging bullying by other students.” Note: Again no reference to the parent complaint against the principal, vice principal and coach

Now let’s fast forward 6 weeks from Superintendent Ertl’s October 16 deposition to the December 2, 2015 deposition

• f Whitman Middle School

Principal Jeff Keranen where he testified as follows:

Question: “Do you have a copy of the complaint that the parents filed?” Answer: “I do not believe I have a copy

• f that anymore…..The hard copy you’re

talking about was given to Dr. Ertl, Mr. Toubl, Mr. Kellerman and myself at the meeting. Question: “….did you each get your own copy?” Answer: “We each got our own copy.”

Keranen deposition continued …….

Near the end of the deposition Keranen is shown a copy of the actual parent complaint that had been obtained from another source. Question: Does this document describe the parents” concerns …..and the meeting that you and Mr. Ertl had with the parents? Answer: “I’d have to take some time to read the document.” Question: “Take some time.” Question: “Is this substantially the document that we’ve been referring to as the ‘parent complaint’?” Answer: “In reading, it does summarize,

• r it does I guess kind of give the

parameters of the conversation we had with the parents.” (Personal aside: Sometimes a simple “yes” can be the best answer)

The trial court allows a second deposition of Superintendent Ertl

Because of the discrepancies between the testimony in the Superintendent Ertl’s October 18, 2015 deposition when compared with the testimony of other school district witnesses a request was made at a January 8, 2016 pretrial

• conference. In an unusual move the judge was

asked to allow the plaintiff to take a follow-up deposition of Superintendent Ertl. The court granted this request.

January 29, 2016: It was only a few days before Superintendent Ertl’s second deposition on February 3, 2016 that the district finally relinquished a redacted copy of the parent complaint that it always had in its district records.

Superintendent Ertl’s testimony

• n February 3, 2016

Now watch closely and compare the testimony at the February 3, 2016 deposition with that of the prior October 16, 2015 deposition testimony. Note how Superintendent Ertl rather dramatically changes his testimony as to his knowledge of the prior bullying complaint by the parents against principals and coaches. There is a marked shift from “can’t recall” or “none” to “Oh, I had it all along”.

Strained Vie iew of What is is Obviously a Bullying Complaint

• Supt. Ertl now admits to not

providing the parent complaint until January 29, 2016: “It’s a student record No. 1.

• No. 2 it’s not necessarily a

bullying complaint. The reference is a bullying policy but because it references a policy doesn’t mean it’s bullying complaint” * Note: Based on the final court

• rder the judge did not accept

these characterizations as valid.

Also recall that “Student Record” is not a bla lanket exception to publi lic dis isclo losure

If it was a student record the record custodian must still do the following:

• 1. Admit the existence of such a record
• 2. Redact student information so the student is not

identifiable

• 3. Describe in general to the record requester what type of

information has been redacted

• 4. Furnish the document as redacted

Next two slides: In his previous deposition of October 18, 2015 and in a previous letter dated July 22, 2014 Superintendent Ertl admits he knew he must redact student information and not simply remain silent about a document’s existence.

When Ertl testified at the earlier October 16, 2015 deposition he testified about how he goes about the redaction process for student records

Question: “Do you find that it’s necessary to redact information from open records requests?” Answer: “Yes.” *The attorney then shows Ertl

the language of the district’s

• pen records policy.

Question: “So tell me in your

• wn words how you

interpret that language.” Answer: “We inform people

• f what’s redacted. Well,

they’ll see what’s redacted, but why it’s redacted….we would inform the requester

• f the nature of the material
• f the portions withheld, and

the authority under which access has been denied.”

From the Attorney General’s Guide

“An authority … should indicate in its response if responsive records exist but are not being provided due to a statutory exception, a case law exception, or the balancing test. Records … not being provided should be identified with sufficient detail for the requester to understand what is being withheld….”

When the parent complaint was finally furnished on January 29, 2016 any identifying information was blacked out. In a 2014 open record request unrelated to the parent complaint Superintendent Ertl had explained in a letter how the process of redaction of “student records” was going to be done. The district, however, was not silent about the existence of those records.

• Supt. Ertl states the following in this

July 22, 2014 letter: “In addition, Wis. Stat. 118.125 (2), Wisconsin’s Pupil Records Law, requires the District to maintain the confidentiality of pupil records. Accordingly, the District has redacted any student and parent names from the enclosed documents.” As An Aside: The record requester did not object to this response from the school district. This particular response complied with the Open Records Law. It (a) admitted the existence of the record, (b) it referenced a statutory exception and (c) it offered to provide the record in redacted form.

February ry 3, , 2016 Ertl deposition continued …

Question: “…when did you make the determination that Exhibit 3 (the parent complaint) was a student record?” Answer: “I wouldn’t know.” Question: “….you were aware that document existed.” Answer: “….I can say that I knew it existed ever since it was given to me.”

Back to the Strained In Interpretations

Question: “This document clearly references that policy, right?” Answer: “It references a Policy 5517.” Question: “So even though there’s an expressed reference there, in your mind, this complaint still does not fall under that particular policy.” Answer: ”Not—if someone references a policy doesn’t mean it falls under it.” Question: “….What policy or guideline might this in your

• pinion fall under?

Answer: “I don’t know. I would have to look through the policies and guidelines to give you an answer on that.”

Testimony that the investigation of the parent complaint was delegated to the Athletic Director

Superintendent Ertl is then asked if he had done any kind of investigation into the parent complaint. Answer: “Personally, no.” Question: “Who did the investigation?” Answer: “Athletic director.” Question: “Who was that?” Answer: “Jeff Gabrielson.” Question: “As far as you are aware, there’s no written record of his investigation.” Answer: “Not that I can recall.”

Superintendent Ertl’s deposition of February ry 3, , 2016

Question: “Exhibit 3, the parent complaint. I’m just wondering if there’s any other paper trail related to that document that was generated after December 16, 2014…? Answer: “Not that I am aware of.” Question: “Would you expect that there would be other documents generated after the fact?” Answer: “You know, there is a document after the

• fact. And it was my email

to the parents of this November.”

Did you perceive anything a bit

• dd about the February 3, 2016

testimony in the previous slide?

Remember that the February 3, 2016 deposition was allowed by the trial judge because of the need to clear up inconsistencies in Superintendent Ertl’s previous testimony particularly in regard to his knowledge of the parent complaint. He presumably would have been rather exhaustively prepared to explain anything and everything about the

• inconsistencies. Toward the end of the questioning it

was rather odd that he now vaguely and off-handedly recalls an e-mail to the parents in November of 2015.

The 2017 follo llow-up up request to satisfy fy another professional hunch by Attorney Osin inga

In the February 3, 2016 deposition testimony Superintendent Ertl testified there was no written record of an investigation by the athletic director that he could recall. He also testified that he had sent an e-mail to the parents in the fall of 2015. On March 2, 2017 Attorney Osinga’s had another professional

• hunch. He sent an open

records request for a copy

• f that e-mail.

October 20, 2015 email from parents

In response to the March 2, 2017 request the district furnished a copy of the email you see to the right. Apparently just 2 days after

• Supt. Ertl’s October 18, 2015

deposition one of the parents who filed the December 16, 2014 complaint requested a

• meeting. The parent’s e-mail

confirmed a meeting for October 20, 2015.

On November 10, 2015 Superintendent Ertl e-mailed a response to the parents and stated the athletic director had, in fact, investigated and submitted a written report to him

The email to the parents states: “In follow up to your complaint dated December 16, 2014, I had said I would give you a response in writing. Athletic Director Jeff Gabrielson followed up and investigated the issue and the following was his decision: “As per your request I met with Whitman boys basketball coach, athletic director and associate principal regarding the incident with (student name blacked

• ut) and the 7th grade

basketball team…..”

Now a Follow- up to the Follow- up

Attorney Osinga now wanted to find out when the athletic director conducted the investigation. “Dear Mr. Ertl: In your November 10, 2015 email it is reasonable to conclude that you were referring to a portion of a document describing an investigation by Athletic Director Jeff Gabrielson. The e-mail placed the conclusion by Gabrielson in quotation marks and thus it would appear to be a direct quote from that document.”

December 22, 2014 report by the athletic director

In response to the follow-up request Attorney Osinga received a copy of the e-mail to the right: The athletic director report referred to in Ertl’s November 15, 2015 e-mail was actually in an email from the Athletic Director to Ertl. This report was completed just 6 days after the December 16, 2014 first meeting with the parents and 10 months before the first deposition of Ertl. Interestingly, but perhaps not surprisingly, the Athletic Director only spoke to the adult district employees

• involved. No reference to the student

being contacted or other members of the basketball team in order to hear their side and get specifics of what was said and done by the coaches and principals.

The persistent series of open records requests finally established this is as the Parent Complaint Timeline

December 16, 2014 The parents meet with Ertl, principals and coach and submitted the bullying complaint for a decision by Ertl. December 22, 2014 Athletic Director’s report on his investigation into the coach’s conduct is sent to Ertl October 18, 2015 Ertl deposition testimony in which he denies knowledge of bullying incidents by coaches or meetings with parents in 2014 October 20, 2015 E-mail and meeting by Ertl with parent who brought the complaint back in December, 2014 November 15, 2015 E-mail from Ertl to parent quoting the report of the athletic director from December 22, 2014. February 3, 2016 Deposition: Ertl references a September or November, 2015 E-mail in a vague fashion but says nothing about the athletic director’s report.

THE T TENDENCY TO FOCUS ON THE WRONG IS ISSUE: “TELL ME WHERE YOU GOT THAT DOCUMENT …….”

In December 2015 Attorney Osinga, as a deposition witness, was asked a rather intrusive set of questions attempting to find out who had originally told him about the parent complaint that the school district had had all along.

Deposition Testimony of Attorney Osinga

School District’s Legal counsel asking about who furnished the parent complaint to him: Question: “Where did you get the copy that you received?” Answer: (Witness declines to answer citing concern about retaliation against source of the document) Question: “There’s absolutely no support for this paranoia about retaliation….” Answer: “Listen, if you read the memorandum from December 2014…. what they (the parents of the student) were contending in there was…

Wanting to id identify fy the source

…. not only bullying but there was retaliation for the report of bullying by the student.” Question: “They were alleging that. Again there’s been no finding that that actually was the fact.” Answer: “And there’s no finding because there’s no investigation. There’s no documentation. There’s no final statement to the parents …. we came to this conclusion. It was

• founded. It was unfounded …. That’s

absolutely part of the policy … again no investigation, no resolution in any shape or form to the kids that were involved in that . It’s incredible to me.” Note: the answer summarizes how not following the bullying policy creates problems with consistency.

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 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.