OSINGA LAW OFFICES, S.C.

Osinga Law Offices is pleased to have the opportunity to provide both the educational community and the general public with presentations on issues related to Wisconsin public schools.

This presentation on open records combined with the problem of student bullying enforcement is intended to generate public discussion that is tied to real life fact situations. This process of informed and rational public discussion goes to the heart of representative government and may help trigger improvements in public policy and government performance.

Attorney John D. Osinga

These presentations have been compiled by Attorney John D. Osinga from Osinga Law Offices in Brookfield, Wisconsin.

Attorney Osinga is a graduate of UW-Madison Law School and has practiced law both in the public and private sectors.

Attorney Osinga is a former three term District Attorney. In that capacity he had occasion to handle numerous criminal and child protection prosecutions involving child abuse and neglect.

Attorney Osinga is also a former county legal counsel : He advised the county board and county agencies on various legal issues including those involving public record requests.

Attorney Osinga has been in private practice since 1987. He currently handles estate planning, probate, personal injury and open records matters.

ARE PUBLIC SCHOOLS PUBLIC?One of the strengths of Wisconsin’s public school system should be the fact that it is public. Transparency and accountability should be an integral part of what it means to be a public school. Public schools are controlled neither by a for profit business nor by a private entity such as a church. When properly administered one would

expect that public schools would be open and responsive to constructive input from the families and communities they serve.

The presentations that follow will unfortunately illustrate how some public schools can become the home of educational bureaucrats who appear to function with little accountability. This lack of accountability can result in growing dysfunction that may

interfere with not only the education but even the personal safety of students. As school district employees, teachers can likewise experience the fallout from this

form of dysfunction in the school workplace. Teachers can become frustrated with their particular school or school district or even with teaching in general.

Part of the answer to these problems may lie in the use of legal tools like Wisconsin’s open records law. A persistent use of tools such as the open records law can help ferret out dysfunction in public schools, frustrate efforts to keep it hidden

and make the dysfunction known to the public.

The two subject areas addressed in these presentations bear similarities and involve many of the same individuals and will even refer to some of the same documents. It may thus be beneficial to view both in the sequence below.

The content of the presentations comes largely from seminar power point presentations. The presentations have been organized as follows in order to break them down into smaller parts and allow for the reader an opportunity to digest the information and consider the particular issues that they raise:

#1 OPEN RECORDS AND BULLYING

The Policies – What Was Intended Presentation A

The Reality – What Happened Part 1 Presentation B-1

The Reality – What Happened Part 2 Presentation B-2

Déjà vu And Sleeping Watchdogs Presentation B -3

#2 MERIT PAY OR “PAY FOR PERFORMANCE”

The Policy – What Was Intended Presentation A

The Reality – What Happened Part 1 Presentation B-1

The Reality – What Happened Part 2 Presentation B-2

PRESENTATION A: The policies

The starting point for this part of the presentation is the content of the public policies adopted by local and state governments. In a government of laws the policies and statutes are intended to be the guides to the conduct of both public officials and the public generally.

The Open Records Case Against the Wauwatosa School DistrictAt the center of this first presentation is an open records case brought against the Wauwatosa School District.

Much of what is discussed in this presentation started with this litigation and the open records requests that preceded it.

Circuit Court Findings

The District violated Wisconsin’s Public Records law due to the following:

#1: Withholding five public record requests made back in 2013 by John Osinga. Requests for copies of all open record requests made to the district between May 2013 and May, 2014 had been made in 2014. In addition, bullying related documents had been requested on multiple occasions thereafter.

#2: Withholding a copy of the December 16, 2014 bullying complaint by Whitman parents against a principal, vice-principal and coach.

#3: Withholding the Buehl and Erenberger letters of recommendation

#4: Withholding Attorney Kraig’s report on student bullying at Washington Elementary

#5: The court also found it could not, as a practical matter, order the district to furnish a copy of the “bullying timeline” because the district stated that it no longer had it. The “bullying timeline” had been given to the district’s central office in June, 2013. The administrators could not explain why the district no longer had it but from their statements it would be reasonably inferred that the district lost or destroyed it.

The primary focus will be on the following the trail of 4 sets of documents:

Although the court case addressed other documents this presentation will primarily focus on the following 4 sets of public records:

#1 The Bullying Timeline reflecting a series of bullying conduct and subsequent inaction by school administrators

#2 The first set of 5 Open Record Requests made to the Wauwatosa School District in 2013

#3 The 2013 Washington Elementary School bullying investigation by Attorney Lindsay Kraig

#4 A 2014 Parent Complaint about bullying engaged in by coaches and administrators

With each of these 4 sets of documents carefully follow each of these factors:

a. The content of document itself

b. The manner in which administrators responded (or not) to the issues raised in the document

c. The handling and/or retention of physical document itself

d. The type of response received when the document was requested in an open records request

General Overview

1. General Context: This will start with a discussion of the Wisconsin open records statute and the

Wauwatosa school district policies and particularly its bullying policy

2. 2003 – 2012: There was an ongoing problem with a teacher bullying students at Whitman Middle

school

3. 2013: A problem with student on student bullying issues at Washington Elementary school goes public

after parents complain. The teacher on student bullying continues at Whitman Middle School. The

school district receives a series of five open record requests from Attorney John Osinga in June and July

relating primarily to school district records concerning student bullying incidents.

4. May 2014 – May 2015: A series of open record requests are made to the Wauwatosa school district

but with the requester, Attorney Osinga, remaining anonymous. Attorney Osinga used a local law firm

to make the requests on his behalf.

5. June 2015 to August 2016: A petition filed is filed in Milwaukee County Circuit Court for a Writ of

Mandamus alleging violations of Wisconsin’s open records law by the Wauwatosa School District.

Sworn deposition testimony is taken of school district administrators and additional records are

requested.

Persons Who Will Be Referred To

• Philip Ertl, Superintendent of the Wauwatosa Public Schools

• Jeff Keranen, Principal of Whitman Middle School

• John Kellermann, Associate Principal, Whitman Middle School

• Dan Chanen, former H.R. Director for Wauwatosa Public Schools and now employed with Milwaukee Public Schools

• Lyda Osinga, former orchestra teacher at Whitman Middle School, Wauwatosa West high school and various district elementary schools in the Wauwatosa Public Schools

To the fullest extent possible the remainder of the presentation is based almost entirely on documents from the public record together with transcripts and video clips of sworn testimony by school district employees. Occasional editorial comment is included which can be considered for what it’s worth to summarize or clarify the information presented.

Wisconsin Open Records Law

Purpose - The Wisconsin Open Records statute states that its purpose is to insure that the public has a means of getting and reviewing public records that reflect how decisions are made and how public policy is being implemented. In a representative form of government this allows the citizenry to hold public officials accountable whether elected or appointed.

On a more personal level parents and the public want to know to a reasonable degree what goes on behind the doors of public schools. The care and education of their children are entrusted to the care of teachers and administrators for the majority of each weekday.

The public officials who are employed or hold elected office are often motivated to restrict public disclosure. They often view the open records law as a nuisance and an intrusion into their personal realm rather than recognizing that these records belong to the public, i.e. they are the public’s records.

Fortunately, in the past few years the public has become extremely sensitive about the open records law. It is a valuable tool to shed light on events and conduct occurring in local and state government. When changes in that policy are proposed, whether done in public or in secret, the public backlash can be significant.

Late night efforts to change open records law

Needless to say nothing good happens when legislators hang around into the wee hours and cast votes.

Not just the legislature but also state boards will also try to limit access.

An E-mail to State Record Board

An e-mail explaining the importance of “transitory records” with an illustration from the Wauwatosa School District case

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….”

If there is an open records law why is it difficult to find out what is happening in our public schools?

State and federal laws together with local school district policies and personal concerns create greater barriers to finding out information when compared with most other units of government.

1. Federal: FERPA Family Education Rights & Privacy Act

2. Wisconsin: Sec. 118.125 Wis. Statutes pupil privacy

3. Employee personnel records: Sec. 19.36 (10) Wis Stats

4. District policies such as those in the Wauwatosa School District have information about events or conditions in its schools filtered through school principals or the central district office

5. Students can be reluctant to speak out: they may feel backlash when they return to their schools

6. Parents may have their own concerns about bringing complaints i.e. potential backlash for their child(ren) if they raise issues.

Wauwatosa Bullying Policy Summary

• Patterned after a state law adopted in 2010: Sec. 118.46 Wisconsin Statutes

• Wauwatosa School District adopted a bullying policy in 2009 and revised it in 2010

• Bullying can be verbal or physical

• Reporting is encouraged – compare: child and domestic abuse reporting policies

• Mandatory reporting, investigation and documentation

• Sanctions for employees who don’t report or who make false report of bullying

• Mandatory written findings and notice to parents of the child(ren) involved

• When the investigation is completed there is to be disciplinary or other action, if any, consistent with whatever findings were made

• School principals are put in charge of investigating bullying of students by other students or by teachers

• The school district superintendent is in charge of investigating alleged bullying by principals or other administrators

Note: The general thrust of this policy is one that, for example, is repeated in such areas as child and/or domestic abuse. Most law enforcement agencies now require the documentation of such incidents to insure that police officers do not ignore conduct that should be acted upon. Many agencies will even have mandatory arrest policies. Even when particular incidents do not result in the issuance of criminal charges the perpetrator knows that these matter are taken seriously and a record has been created.

Wauwatosa BullyingPolicy 5517.01

Policy: “Bullying toward a student, whether by other students, staff, or third parties is strictly prohibited and will not be tolerated.”

“Bullying complaints against a building principal shall be filed with the superintendent”

“All school staff members …. who observe or become aware of acts of bullying are required to report these acts….”

“Reports of bullying may be made verbally or in writing, will be taken seriously and a clear account of the incident is to be documented…”

“All complaints … shall be investigated promptly…”

Bullying Policy (cont.)

“Parents and/or guardians of each student involved in the bullying report will be notified prior to the conclusion of the investigation.”

“The complainant shall be notified of the findings of the investigation, and as appropriate, that remedial action has been taken.”

Examples of bullying: taunting, malicious teasing, insulting, name calling, making threats, ……coercion…. intimidation.

False Reports of Bullying: Making a false report of bullying …. is prohibited and will not be tolerated.

When legitimate criticism is brought against public officials about the enforcement of a policy they often try to deflect criticism by pointing to a purported deficiency or ambiguity in the language of the policy or regarding the training done to implement it.

This slide reflects the official response to a request for an opinion from the Wisconsin Department of Public Instruction regarding the clarity and sufficiency of the Wauwatosa bullying policy.

Dr. Curtis states: “It is clear that this district (Wauwatosa) wants to take a strong stand against interpersonal violence, bullying, and harassment. The Board policies on bullying and harassment are strongly worded and provide clear language for prevention and intervention strategies.”

The presentation that follows will explore whether the policy enforcement is commensurate with its strong language.

When most people think of bullying they envision several students in a school hallway, bathroom or playground confronting a solitary and often smaller fellow student.

However, teachers can also be bullies in a way that can cause substantially more harm than the actions of a fellow student.

Results of research into bullying by teachers

What researchers found:

-Those who bully are likely to be older and more established teachers rather than new teachers

-This (removal of bullying teacher) may be especially difficult where the principal has been in his or her position for a long time. The reluctance to act is fueled by a long history of inaction.

-There seldom will be negative sanctions applied to teachers who bully students

Dr. Alan McAvoy on bullying by teachers

“An unexpected finding was how emotional and vivid these accounts (of bullying by teachers) were, even long after the events took place. There also was a deep frustration that abusive behavior could persist seemingly without consequences for the perpetrators.”

A Troubling Coincidence and a Reminder Why Consistently Enforcing the Bullying Policy Is Not a Minor Issue

In the second part of this presentation you should observe that on December 14, 2012 orchestra teacher Lyda Osinga met with HR Director Dan Chanen for 2 hours. They had a lengthy discussion about the problem of a fellow teacher who was bullying Whitman Middle School students.

Coincidentally, on that very morning a troubled former student of Sandy Hook Elementary in Newton, Connecticut returned to that school and killed 20 students and 6 staff members.

Bullying and the Sandy Hook Elementary School shootings

The shooter in the Sandy Hook massacre was bullied as a student.

The connection between school shooters and student - teacher conflicts

“Up to now, researchers had assumed bullying between peers and the social exclusion of the perpetrators were the most prominent factors in school shootings …..however ……in many cases conflicts with teachers seemed to be a decisive factor in the school shootings investigated.”

Superintendent Ertltestifying on what triggers a bullying investigation

The following is from sworn deposition testimony of Superintendent Phil Ertl.

“Bullying is a subjective term. So when somebody reports it as bullying, it’s investigated as bullying.”

Note: On this point he is absolutely correct. The bullying policy states: “Any student that believes s/he has been or is the victim of bullying should immediately report the situation…”

Note: Observe, however, in the rest of the presentation the instances where seemingly different standards appear to apply to the triggering of the bullying policy’s investigative protocol.

Bullying Investigation worksheetThis is the district’s simple one page outline for principals and administrators to use regarding the steps for documenting a bullying complaint and the investigation, making findings and notifying the victim and parents.

The district’s worksheet actually makes a very valid point:

“Make sure you detail the good work we do!!!! Often parents state ‘the school did nothing!’. Here is the opportunity to list the good work we do.”

The detailing of actions taken by the district in alleged bullying incidents can go a long way to counter accusations (by parents) that their concerns are simply being ignored.

The problem with teacher bullying of students at Whitman Middle School was noted in a “Three Concerns” document submitted under the district’s policy #3112 by orchestra teacher Lyda Osinga and given to H.R. Director Dan Chanen and School Superintendent Philip Ertl in June 2013

From Concern #3:

“…….ongoing bullying conduct by a high school teacher toward both students and me.”

“…..creating an environment ripe for problems like harassment and/or bullying.”

Superintendent Ertl testifies: Once a bullying report is made the investigation is mandatory

Question: “….does this policy also require –once there’s been a report of bullying, does this policy require a subsequent investigation?

Answer: “Yes.”