La. Admin. Code tit. 28 § CXV-502

Current through Register Vol. 50, No. 9, September 20, 2024

Section CXV-502 - Staff Misconduct

A. Each LEA, prior to hiring any employee, shall require that the applicant for employment sign a statement providing for the disclosure of information by the applicant's current or previous employer, if such employer is an LEA, relative to all instances of sexual misconduct with students committed by the applicant, if any, and releasing the current or previous employer, if such employer is a city, parish, or other local public school board, and any school employee acting on behalf of such employer from any liability for providing such information.

1. The statement shall provide procedures for the disclosure of information by the applicant's current or previous employer, if such employer is the Louisiana School for the Deaf, the Louisiana School for the Visually Impaired, or the Louisiana Special Education Center, relative to all instances of abuse or neglect of students, as such terms are defined in Children's Code Article 603, as committed by the applicant, if any.

2. Prior to hiring any applicant, each LEA must request, in writing, that the applicant's current or previous employer, if such employer is an LEA, provide the above-described information, if such information exists, and make available to the hiring school board copies of any documents as contained in the applicant's personnel file maintained by such employer relative to such instances of sexual misconduct, if any. Such request for information must include a copy of the aforementioned statement signed by the applicant.

3. If such information exists, it must be provided and copies of all documents as contained in the applicant's personnel file relating to all instances of sexual misconduct, if any, must be made available to the requesting school board no later than 20 business days from the receipt of the request.

4. Any LEA or any school employee who discloses such information in good faith shall be immune from civil liability for having disclosed such information.

5. An applicant who does not sign the disclosure and release statement cannot be hired. An applicant can be hired on a conditional basis pending the hiring board's review of any information obtained.

6. The statement shall provide procedures for the disclosure of information by the applicant of all instances of sexual misconduct with and abuse or neglect of any student committed by the applicant, if any, and such procedures shall include written notification by the school board, on any application forms provided to the applicant, of the disclosure requirements.

7. Any information obtained can only be used by the hiring board for the purpose of evaluating an applicant's qualifications for employment for the position for which he or she has applied. Such information is not subject to the Public Records Act and is not to be disclosed to any person, other than the applicant, who is not directly involved in the process of evaluating the applicant's qualifications for employment. Unauthorized disclosure is a misdemeanor offense with exposure to a fine of up to $500 or imprisonment for up to six months, or both.

8. Adult sexual misconduct in schools, for the purposes of disclosing information to LEAs as required by R.S. 17:81.9, includes sexually inappropriate behavior by the adult that is directed at a student, including but not limited to sexually-related conversations, jokes, or questions directed at students. More specifically, sexual misconduct and abuse or neglect is:

a. any conduct that would amount to sexual harassment under Title IX of the (U.S.) Education Amendments of 1972, as amended;

b. any conduct that would amount to a sexual offense affecting a minor under state criminal codes;

c. any sexual relationship by a school employee with a student, regardless of the student's age; with a former student under 18; with a former student (regardless of age) who suffers from a disability that would prevent consent in a relationship. All students enrolled in the school and in any organization in which the school employee holds a position of trust and responsibility are included;

d. any activity directed toward establishing a sexual relationship such as sending intimate letters; engaging in sexualized dialogue in person, via the Internet, in writing or by phone; making suggestive comments; dating a student.

9. The statement shall include:

a. all actual cases of sexual misconduct with a minor or student by the applicant;

b. all investigations of sexual misconduct by the applicant with a minor or student that occurred within thirty-six months prior to the applicant's resignation, dismissal, or retirement from school employment;

c. all actual or investigated cases of abuse or neglect of a minor or student by the applicant.

10. Any applicant who knowingly and willfully violates the provisions of this Section shall be guilty of a misdemeanor offense and shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

B. Sexual conduct (including sexual intercourse and any lewd or lascivious behavior) between an educator (including any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide) and a student, who is under the age of 19 and who is a student at the school where the educator is assigned, employed, or working at the time of the offense, is prohibited.

1. Consent of the student or lack of knowledge of the student's age is not a defense.

2. Notwithstanding any claim of privileged communication, any educator having cause to believe that prohibited sexual contact between an educator and a student has occurred or is occurring shall immediately report such conduct to a local or state law enforcement agency.

3. No cause of action shall exist against any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings arising out of such report, and such person shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.

4. No immunity shall extend to any person who makes a report known to be false or with reckless disregard for the truth of the report, but in any action to establish damages against a defendant who made a false report, the plaintiff shall bear the burden of proving that the defendant who filed the false report knew that the report was false or that the report was filed with reckless disregard for the truth of the report.

C. Interaction between a student and a school employee in any classroom, office, meeting room, or other similarly enclosed area on school property is prohibited unless, during the full time of such interaction, another school employee, the student's parent, or other authorized adult is present, or the student and the employee are clearly viewable by persons outside the area through an open door or entrance or window or other means that provide an unobstructed view. The following exceptions apply:

1. interaction between a student and a school counselor as defined in R.S. 17:3002, or between a student and a social worker, a psychologist or other duly certified/licensed mental health or counseling professional.

2. interaction between a student and a school employee when the school employee is appraising, evaluating, or testing the student in accordance with the provisions of BESE Bulletin 1508;

3. interaction between a student and a school employee when the employee is providing services as required by the student's IEP;

4. interaction between a student and a school employee engaged in the performance of a noncomplex health procedure as defined in R.S. 17:436(A);

5. interaction between a student and a school nurse or other duly certified/licensed health care professional; and

6. interaction between a student and a teacher or administrator concerning a matter of confidentiality and/or safety.

D. A school employee shall report his or her arrest for a violation of any of the crimes provided in R.S. 15:587.1, any other sexual offense affecting minors, or any justified complaint of child abuse or neglect on file in the central registry pursuant to article 615 of the Children's Code within 24 hours of the arrest. However, if the school employee is arrested on a Saturday, Sunday, or a legally declared school holiday such report shall be made prior to the school employee next reporting for his work assignment at a school.

1. School employee means any employee of, an LEA including a teacher, substitute teacher, bus driver, substitute bus driver, or janitor, and shall include all temporary, part-time, and permanent school employees.

2. All school governing bodies shall promulgate reporting policies and/or procedures to be followed by any employee arrested for the aforementioned offenses.

3. The report shall be made by the school employee to a person or persons as specified by the LEA.

4. The report shall be made by the school employee regardless of whether he or she was performing an official duty or responsibility as a school employee at the time of the offense.

5. In addition, the school employee shall report the disposition of any legal proceedings related to any such arrest within twenty four hours, which shall also be made a part of any related files or records.

6. Failure to comply with these provisions shall result in the following:

a. suspension, with or without pay, of said employee by the employee's LEA if such employee is serving a probationary term of employment or if the provisions of law relative to probation and tenure are not applicable to the employee;

b. removal proceedings under R.S. 17:45, 443, 462, 493, 523, or 533, as applicable, for tenured employees;

i. written and signed charges alleging such failure shall be brought against any such tenured employee.

7. Unless criminal charges are instituted pursuant to an arrest which is required to be reported, all information, records, hearing materials, and final recommendations of the school pertaining to such reported arrest shall remain confidential and shall not be subject to a public records request.

E. A school bus operator shall report his arrest for a violation of R.S. 14:98, 98.1, or any other law or ordinance that prohibits operating a vehicle while under the influence of alcohol or any abused substance or controlled dangerous substance set forth in the schedules provided in R.S. 40:964.

1. School bus operator means any employee of an LEA whose duty it is to transport students in any school bus or activity bus to and from a school approved by BESE or to and from any school-related activity.

2. The report shall be made by the operator to a person or persons as specified by the LEA in rules and regulations.

3. Such report shall be made within twenty four hours of the arrest or prior to the operator next reporting for his work assignment as a school bus operator, whichever time period is shorter.

4. Such report shall be made by the school bus operator regardless of who owns or leases the vehicle being driven by the operator at the time of the offense for which he was arrested and regardless of whether the operator was performing an official duty or responsibility as a school bus operator at the time of the offense.

5. A school bus operator who fails to comply with the provisions of this Section shall be terminated by the LEA employing the operator if such operator is serving a probationary term of employment as provided by R.S. 17:492 or if the provisions of law relative to probation and tenure of bus operators are not applicable to the operator.

6. A school bus operator employed by an LEA who is a regular and permanent employee of the board as provided by R.S. 17:492 shall be subject to removal as provided by R.S. 17:493 for failure to comply with the provisions of this Section.

a. Written and signed charges alleging such failure shall be brought against the bus operator.

La. Admin. Code tit. 28, § CXV-502

Promulgated by the Board of Elementary and Secondary Education, LR 31:1265 (June 2005), amended LR 33:431 (March 2007), LR 34:607 (April 2008), repromulgated LR 35:444 (March 2009), amended LR 35:1099 (June 2009), LR 37:1138 (April 2011), LR 38:41 (January 2012), Amended LR 4831 (1/1/2022).

AUTHORITY NOTE: Promulgated in accordance with R.S. 17:15; R.S. 17:81.9; R.S. 17:587.1; R.S. 17:7.