The Keene School District has filed a response to the Keene teachers union’s recent unfair labor practice complaint, refuting the Keene Education Association’s allegation that members were unfairly disciplined under a federal student-privacy law after communicating concerns about employee safety.
The association contends this disciplinary action has interfered with union activities by discouraging other employees from reporting workplace safety concerns.
The district’s response, filed Friday with the N.H. Public Employee Labor Relations Board, denies these claims, arguing that the employees in question — union President William Gillard and member Bonny Nadeau LaRocca — indeed violated the U.S. Federal Education Rights and Privacy Act (FERPA), which governs privacy and access related to student educational records.
“KEA’s Complaint attempts to confuse the issues of Mr. Gillard’s and Ms. LaRocca’s FERPA violation with allegations regarding the District’s willingness to address safety concerns,” the response, signed by attorney Nathan C. Midolo on the district’s behalf, reads. “KEA’s confusion of these points is an intentional attempt to incorrectly frame the issues before this board.”
The response goes on to say that the district designates certain employees who are authorized to receive information about school safety that could personally identify a student.
“Ms. LaRocca and Mr. Gillard could have disclosed the information to the designated employees (or disclosed their concerns to union representatives and other parents without using FERPA-protected personally identifiable information), rather than circumvent the federally mandated parental-disclosure-consent process,” the response reads.
The union has maintained that neither LaRocca nor Gillard learned the information they were disciplined for sharing through student records, and therefore this would not fall under the law. According to the union’s complaint, LaRocca, a teacher at Fuller Elementary School, used an online form to report to Gillard that she had observed a student bring ammunition to school and make a threat that made her feel unsafe.
In January, Gillard sent an email requesting a safety evaluation of the student, according to the complaint. The complaint doesn’t specify who the email was addressed to but says Gillard copied Rachel Hawkinson, an employee of the National Education Association who works with the Keene Education Association and other NEA affiliates in the Monadnock Region.
He also emailed parents at Fuller Elementary about organizing a meeting about the administration’s handling of safety concerns, which listed specific incidents he said had happened at Fuller recently. Gillard told The Sentinel he’d heard about the incidents from colleagues and from his children, who were students there.
N.H. School Administrative Unit 29 Superintendent Robert H. Malay has said the district can’t comment on confidential personnel or student matters, but takes safety matters very seriously.
The union’s complaint cites U.S. Department of Education guidance issued in 2011, which states that the federal privacy law covers disclosure of personally identifiable information “derived from education records.”
“Thus, information that an official obtained through personal knowledge or observation, or has heard orally from others, is not protected under FERPA,” the document states. “This remains applicable even if education records exist which contain that information, unless the official had an official role in making a determination that generated a protected education record.”
Malay said Monday LaRocca created an official record of the incident that is protected under FERPA.
“The information disclosed by Ms. LaRocca was recorded on two incident reports/administrative referral forms completed by Ms. LaRocca herself and maintained by the District,” the response states. “Mr. Gillard was not authorized to receive the information and Ms. LaRocca’s disclosure of the information to him was a violation of federal law.”
The response also notes that Gillard mentioned his role as union president in the email to Fuller parents and said though he was writing the email as a parent, he wears “a number of hats in the Keene Schools,” which gives him “access to information not normally available to all parents.”
“... Mr. Gillard was disciplined for violating FERPA when he disclosed confidential personally identifiable information about a student that he learned from District employees for educational purposes, to parents of other students (who were not authorized to receive the information),” the response reads. “FERPA does not contain an exemption for such a disclosure.”
But Gillard, who is a math teacher at Keene High School, said he has never been given access to confidential information related to Fuller Elementary as a district employee.
“When I say I wear a number of hats, I mean I’m the union president. So as a union president, employees report to me violence and safety issues that happen in the schools that I would not receive as an employee,” Gillard said Monday. “Under no circumstances was I implying that I have access to school records or private information that I would release to parents, as the district would like people to believe.”
According to the response, the district had an attorney investigate whether any employees had violated FERPA, and that investigation determined that both LaRocca and Gillard had violated the federal privacy law.
The union’s complaint says Gillard was suspended for a week, but does not describe how the district disciplined LaRocca.
A parent complains
One of the reported disclosures at issue in this case was flagged to the federal government. On Feb. 20, a parent filed a complaint with the U.S. Department of Education in reference to Gillard’s email, according to documents obtained through a Freedom of Information Act request.
The complainant wrote that their son “was implicated in the letter without regard to ... his right to privacy, or the lasting and far reaching impact sharing this information would have. In this email his behavior was misrepresented and given without context or understanding of the complexities of the situation.”
According to Malay, the Keene School District typically hires an independent investigator to look into any potential FERPA violation, and then reports to the N.H. Department of Education if a violation is found. The district is aware of the complaint filed in February with the U.S. Department of Education, he said, and is typically notified if the department opts to open an investigation.
It has not received any such notification in this case, he said.
“There could be several reasons why. But they don’t communicate that to us because we didn’t file the complaint,” Malay said. “That was filed by a parent.”
Malay reiterated that the district does not discipline employees for bringing forward safety concerns.
“It would be silly for any employer or any supervisor to take disciplinary action against a staff member who is trying to make the workplace, the school a safer place,” Malay said. “I think that the district has been very responsive [to concerns] by beefing up and paying attention to under-reporting, not just with injuries and with behaviors as well, and are working to find the best ways to address incidents as well as behaviors so that schools are a safe place for our kids.”
LaRocca was not reachable for comment Monday. A hearing on the unfair labor practice complaint is scheduled for Nov. 4 at 8:30 a.m. in Concord.