Leung Report Release Could Be Embarrassing, Humiliating: Attorney

CONCORD, NH — At its monthly meeting Monday, the Concord Board of Education offered an update on an internal investigation of the district and a walkthrough by its attorney of why certain information probably will never be released to the public or the press. The board also allowed residents to speak about its current administration and staffing upheavals (see story here). While the board and district spent part of the summer building new procedures and processes in place to protect students, members are now grappling with the aftereffect of the first of at least two internal investigation reports on how and why a Concord High School special education teacher, Primo "Howie" Leung, was allowed to stay in his classroom despite being accused of inappropriate behavior with students dating back at least eight years.

Jennifer Patterson, the president of the Concord Board of Education, said members are challenged because they are focused on three fronts: The primary role of the school district – to education children; addressing safety issues with students in the district in the wake of the Leung allegations and later, arrest on rape charges in Massachusetts; and rebuilding trust with the community.

"Obviously, these are all related," she said, "(and) we have been talking about a lot, in recent months."

Since the September board meeting, Patterson said, there has been progress but there have also been setbacks. Board members received a first report on Sept. 23 from a private investigator, Djuna Perkins of DP Law, which outlines some of the issues facing the district concerning laws, policies, and procedures that may or may not have been followed while Leung was employed by the district.

"We have read it," Patterson said, "and we have begun taking action on it. There is not a lot we can say about it but what we can say is the report does what we asked, it provides the information that we wanted to have when we entered into the contract for that report. It's meticulous, it's detailed, it shows where there were failures … and we will continue to review it and take actions when appropriate."

As far as releasing the report, she said the board needed to "comply with the law" and was working with its legal counsel, Stephen Bennett of Wadleigh, Starr & Peters PLLC, who is the intermediary between members and Perkins.

A second report, which board members haven't seen, will "absolutely" be released to the public and should shed light on understanding what went wrong, since there is public interest, she said.

The district had also been working to change the culture of safety and accountability inside the schools including training for staff, an online reporting portal and tip boxes at Concord High School which will also be installed at the Rundlett Middle School for incidents, and interaction with Concord police and the Division for Children, Youth, and Families, which receives reports about incidents in and outside of the schools, when it involves students.

"That work is ongoing," she said, "and we've made a lot of progress."

The board is also working on focusing on "leadership" for the district, including an interim superintendent, until the incidents that led to School Superintendent Terri Forsten, being placed on leave, "are resolved."

Another issue, that caught the board completely off guard, was the lack of certification by administration staff, specifically Donna Palley, an assistant superintendent, and Jack Dunn, the district's business administrator. Patterson said she was notified of Palley's non-certification on Sept. 10 and Sept. 11 by emails from the New Hampshire Department of Education. The correspondence, she said, gave her the impression that the matter was "being resolved or worked on." At the time Forsten was placed on leave, Patterson didn't realize that the issue with Palley's credential was not being swiftly resolved. The board was not aware, she added, that Dunn was not certified either.

"The board takes these certification issues very seriously," Patterson said. "And we will require that all DOE standards are met for all staff."

Board Attorney: Personnel, Student Info Exempt

The board's attorney was asked to speak about the report and legal parameters by which the board was refusing to release the first report's findings despite numerous requests.

Bennett said the investigation addressed what district employees knew about the allegations against Leung and when they knew them. It also looks at which policies and procedures were followed and which ones weren't.

Bennett said Perkins spoke with nearly 60 school employees, a dozen students, as well as parents and state and local officials as part of the investigation.

"Reports detailing investigations of employee conduct and compliance with employment policies are exempt from the disclosure requirements of the state's right to know law, as referenced to internal personnel practices," he said.

Bennett said there was case law protecting the exemption of internal personnel matters under the practices provision and the district's decision not to release information was consistent with rulings, too.

The release of the information in the investigation could also have a "negative impact" in future investigations and could potential prompt employees to not come forward with information, he said.

"Public disclosures of personnel reports have resulted in public embarrassment, humiliation, and even retaliation against individuals who were merely witnesses and not wrongdoers," Bennett said, adding that stifling reporting of misconduct harms employees, students, and the public.

Student records are also exempted and federal law, via the Family Educational Rights and Privacy Act, protects students. Even when redacted, he said, the public could surmise the identity of employees and students who were involved in the investigation or in their individual roles in the incidents. Such results would be inconsistent with the right-to-know law, he said.

Bennett said the second purpose of the investigation was to identify failures or weaknesses in current SAU 8 district policies and practices that may have contributed to a delay in discovering and stopping Leung's alleged misconduct. The board will analyze this report, he said, and make policy recommendations. That part of the investigation will be released to the public, Bennett said.

Analysis: What Does 91-A Really Say?

New Hampshire's right-to-know law, Chapter 91-A, Title VI, public officers and employees, access to government records and meetings, does allow public bodies exemptions from sharing information with the public and the press.

But all too often, the personnel provision, which is actually limited in scope, is used in a blanketed way to cover everything involved with personnel and keep public bodies from making hard decisions about personnel and shielding unprofessional behavior. These employees are often bought off with settlements and positive recommendations, pushing the problems onto other public bodies like school districts. As well, a provision in the law allows for public bodies to vote to allow the release of information when "health or safety" may be at risk.

Student information is clearly exempt in many parts of state law.

The release of "unique pupil identification information collected in accordance with RSA 193-E:5 (adequate public education statute)" is banned in 91-A:5 VII. The arrest records of minors – anyone 17 and younger – are not published by police departments and data from assessments are also not shared.

But with personnel records, it's a different story.

"Records pertaining to internal personnel practices" are exempt from the public and the press via 91-A:5 IV but only when the disclosure "would constitute invasion of privacy." The address of a public employee's home on a resume, as an example, should be redacted but not the employee's employment information, education, or other information that shows that they are qualified for the job. But an employee who admitted to not following the district's policies and procedures as well as state policies, like educator code of ethics and code of conduct, and certainly during an incident that involved at least one student being raped and another student being assaulted, would have no such privacy because they weren't performing their jobs properly.

As well, the second part of 91-A:5 IV reads: "Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a public body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected."

In other words, if a school board is truly concerned about the health and safety of children in its system, it can vote to release investigatory information to the public and the press. This will allow the public at-large to make a judgement on whether or not they want their children around employees who may or may not have followed both internal and state policies and procedures and whether they think their property tax dollars should pay for employees who were not terminated in the wake of an internal investigation that showed negligence and/or malfeasance.

ALSO READ:

• Parents To Concord School Board: Fire Assistant Superintendent
• Mom Accuses Concord Teacher Of Trying To Groom Daughter In 2011
• Concord School District To Conduct Full Staff Credentialing Audit
• Second Concord School Employee Found Not To Be Credentialed
• Credentialing Of Concord's Acting School Super Could Take Months
• Concord Police Chief Says He'd Like To See School Investigation
• Acting Concord School Superintendent Not Credentialed With NH DOE
• Concord Superintendent Forsten, Principal Sica Placed On Leave
• Concord Board Of Education Considering Personnel 'Next Steps'
• Concord Board Of Education Members Eyeing Investigative Report
• Parents, Students Vent About Issues With Concord School District
• Concord School Board To Update Public About Investigation Tuesday
• Concord School Superintendent: Letter To Staff 'A Serious Error'
• Petition To Remove Officials From Concord Schools Cracks 2,000
• Concord School Board Holds Emergency Meeting Sunday With Counsel
• Online Petition Launched To Have Concord School Officials Removed
• Concord Superintendent Lashes Out At Media Coverage Of District
• Concord School Board To Revise 'Professional Expectations' Policy
• Concord High School Principal Takes A Leave Of Absence
• Labrie's Former Counsel Not Hired To Probe Teacher Rape Case
• Concord School Board Opens New Investigation Into Leung Rape Case
• How A Distinguished Concord Teacher Became A Student Rape Suspect
• Students Saw Concord Teacher Kiss, Hug Another Student: Docs
• Should The Concord School District Have Responded Faster To Case?
• NH Teacher Held Without Bail After Bay State Arraignment
• Concord Teacher Accused Of Raping Student In Newton, MA
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