Should Utah school employees under criminal investigation be put on administrative leave?

ST. GEORGE — One local school district administrator says a bill pertaining to the handling of school employees while under criminal investigation is “well-intentioned” but may put students more at risk.

Former St. George elementary school teacher Curtis Williams Payne appears before a 5th District judge after being charged with child abuse charges of former students, St. George, Utah, Sept. 24, 2019 | Photo by Ryann Richardson, St. George News

Washington County School District Human Resources Executive Director Lyle Cox responded by email to questions from St. George News regarding HB 195: Criminal Investigations of School Employees, pointing out several unintended consequences that could occur.

“Connecting the administrative process and the criminal process is highly problematic,” Cox said.

The bill passed the House and headed to the Senate for the legislative sessions under the current status.

“If the employee is being investigated criminally for abuse of a minor then they are put on administrative leave,” Rep. Kera Birkeland, bill sponsor, said. “If they are convicted of abusing a minor the employee is to pay back the leave money they took.”

Cox, on the other hand, says there is much more to the bill than that.

“We all want to safeguard students from employees who engage in criminal activity,” he said. “Placing an employee on paid administrative leave during the course of a criminal investigation is just one tool in the administrative investigation process, it is not a solution.”

With more than 26 years of experience conducting hundreds of employee investigations, from minor policy violations to severe misconduct allegations, Cox stressed that understanding this bill means knowing the differences between administrative investigation and criminal investigation.

The floor of he House of Representatives is shown at the Utah State Capitol Tuesday, March 1, 2022 | Photo by AP Rick Bowmer, for St. George News

He said the bill serves as an injunction. It effectively restrains a school district from conducting a parallel administrative investigation during the criminal investigative process. This is dangerous, in his opinion.

One reason is the burden of proof which is required. With an administrative investigation, the burden of proof is a preponderance of evidence, or a greater than 50% chance the allegation is true. Meanwhile, a criminal investigation has a burden of proof where prosecutors must present evidence beyond a reasonable doubt.

This will make it so the schools will have to abide by the same burden of proof as criminal investigations, Cox said. The bill would make it so the school administration would have to wait until the criminal proceedings conclude before they can act.

“If we wait for the criminal process,” Cox said. “We miss the opportunity to fully investigate administrative wrongdoing. That places students at risk.”

Rep. Kera Birkeland of District 4 is the bill sponsor of HB 195 which makes changes in the process pertaining to school employees while under criminal investigation, location and date unspecified| Photo courtesy of the Utah State Legislature, St. George News

However, Birkeland relayed a story from one of the victims of school employee sexual misconduct. The former student told how a coach had no action taken while the coach was under investigation by the police. The coach remained on duty.

Another example is Anthony Jordan Wanless, a former Bingham High School assistant wrestling coach. Wanless was arrested on Feb. 22, 2022, and charged on Sept. 1 of the same year. He is still being scheduled for trial.

“Worst of all, if the act of simply placing an employee on indefinite paid leave stops the district from conducting its own investigation to wait for the outcome of a criminal investigation, we run the risk of jeopardizing our ability to respond appropriately to violations of policy or administrative rule,” Cox said.

As an example, Cox summarized the ruling of a landmark supreme court case, Garrity v. New Jersey, 385 US 493 – Supreme Court, 1967.

According to the Garrity case, the supreme court held that statements made by police officers during an administrative investigation into the alleged misconduct were inadmissible in a criminal case.

“This doesn’t address DUIs and other criminal charges,” said Kirkeland.

As the bill currently is written, it gives an employee the right to “paid” administrative leave while the criminal charges are being investigated.

“That could take months or even years to resolve,” Cox said. “During that time the employee continues to receive taxpayers’ money as wages, provides no absolute assurance that students will be safe after the criminal process concludes, effectively stops the administrative investigation process and limits our ability to take administrative action before the criminal process is complete.”

The Iron County School District App | Photo courtesy of Iron County School District, St. George News

Utah Education Association opposes the bill for similar reasons as Cox provided.

“I am really, really disheartened by how they (UEA) are more interested in protecting abusers than minors,” Birkeland said.

Iron County School District issued a short statement by email stating that, if passed, the bill would result in a long process of revising the district’s current “orderly termination” policy.

“The district is supportive of getting those funds returned as the employee would not have been working during that leave time and it is highly unlikely they would continue to be an employee due to the conviction,” the statement said.

Copyright St. George News, SaintGeorgeUtah.com LLC, 2023, all rights reserved.

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