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 of 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 one 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 on June 6, 2017 This describes a commonly known incident of apparent bullying that occurred 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 of 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
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