A union representing Keene schoolteachers has filed an unfair labor practice complaint against the school district, alleging administrators misused a federal student-privacy law to discipline the union president and another member for communicating about safety issues.
The Keene Education Association’s complaint to the N.H. Public Employee Labor Relations Board, dated Sept. 12 and announced in a news release late Thursday night, says those disciplinary actions have made employees reluctant to discuss workplace safety concerns with their union representatives.
According to the complaint, union members have expressed concern about student behavior resulting in injuries to staff, and the union’s leadership feels the school district administration has not done enough to address the issue.
The complaint says the school district disciplined KEA President William Gillard and another union member, Bonny LaRocca, for sending messages in which they relayed worries about specific incidents involving students.
According to the complaint, the district treated those messages as violations of the U.S. Family Educational Rights and Privacy Act, or FERPA, a federal law governing privacy and access related to student educational records. But the union maintains Gillard and LaRocca did not violate the law, because the information they shared did not come from student records.
“Disciplining an employee for bringing a legitimate safety concern forward is just totally unacceptable,” Gillard, a Keene High math teacher, said Friday.
The school district disputes the union’s claims and expects to file a formal response next week, said Robert Malay, superintendent of N.H. School Administrative Unit 29, which includes Keene.
“The school district cannot comment on confidential personnel or student matters,” Malay said Friday. “However, the school district takes all safety matters very seriously. It also takes its obligations under the Family Educational Rights and Privacy Act, otherwise known as FERPA, very seriously.”
Malay declined to comment on the union’s specific assertions because the district has not formally responded to the complaint yet.
George Downing, chairman of the Keene Board of Education, declined to comment, saying the complaint has not come before the board yet, and he does not have the full details.
Gillard said his safety concerns include the way violent incidents are reported, and staffing levels, which can leave fewer adults supervising students.
Separately, employee complaints about workplace safety have prompted inspections of the Keene School District this year and last year by the N.H. Department of Labor, Deputy Commissioner Rudy Ogden confirmed in an email Friday.
The department’s report from the most recent inspection, based on visits this spring, found, among other issues, that many of the employees working in three special-needs programs at Keene elementary schools had been injured by student actions.
Employees in the programs reported that management rarely followed up with them after injuries, that injury reports were not being filled out, that substitutes didn’t have specialized safety training and that two of the programs did not have enough trained staff, according to the report. The report also describes deficiencies with an employer-employee committee set up to review workplace injuries.
Malay said the district has received the report and recently met with the Department of Labor.
“They said, ‘Look, there’s nothing in here that we don’t find in every school district or every school building,’ ” Malay said. But, he said, the district takes safety “very seriously” and wants to work with the department to fully understand the report’s recommendations.
The Keene Education Association’s complaint to the Public Employee Labor Relations Board asks the board to find that the school district committed unfair labor practices by disciplining LaRocca and Gillard. (The complaint says Gillard was suspended for a week, but does not describe how the district disciplined LaRocca.) The union also wants the board to order the school district to “clarify their guidance to employees with regard to FERPA so that it does not interfere with the union and employee’s rights.”
According to the complaint, LaRocca, a teacher, used an online form to report to Gillard, the union head, that she observed a student bring ammunition to school and make a threat that made her feel unsafe. Efforts to reach LaRocca Friday afternoon were unsuccessful.
In January, Gillard sent an email requesting a safety evaluation of the student, copying Rachel Hawkinson, an employee of the National Education Association who works with the Keene Education Association and other NEA affiliates in the Monadnock Region.
The following month, Gillard — who had two kids at Fuller Elementary School at the time — emailed other Fuller Elementary parents about organizing a meeting about the administration’s handling of safety concerns. The email, which mentioned Gillard’s status as union president but said he was writing as a parent, listed specific incidents that he said had happened at Fuller recently.
The Keene Education Association’s complaint says the school district disciplined LaRocca and Gillard for those communications, claiming they violated FERPA’s privacy protections.
The union, however, argues the law pertains only to information learned from student records — not to what teachers witness themselves or hear from other people.
The union’s complaint cites U.S. Department of Education guidance issued in 2011, which states that the 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.”
Gillard said none of the information in his email to other parents came from educational records. He heard about the incidents either from colleagues or from his own children, who told him about things they saw or heard at school, he said.
“All the information I obtained was either as a parent or as union president,” he said. “… These were all personal accounts of things that happened.”
Nothing in FERPA prevents parents from repeating stories their kids tell about school, he said.
The union claims in its complaint that the district’s disciplinary action against LaRocca and Gillard — along with a memo about FERPA the district sent to staff this spring, which the union calls “confusing” and “intentionally overly broad” — has suppressed discussion of safety issues among union members.
“Employees have shared with the union that the above acts have led them to become fearful of discussing workplace safety incidents with the KEA and Ms. Hawkinson, their assigned union resource,” the complaint states. “They report that they do not understand what they can and cannot talk with the union about. They report that … they are too fearful of discipline and reprisal from the District to speak with the union about anything to do with students.”
Malay, the superintendent, declined to comment on the union’s account of LaRocca’s and Gillard’s activities, citing employee and student confidentiality concerns. He said the memo issued in spring “was to provide additional guidance on regulations as they relate to FERPA.”
He also declined to comment on the union’s understanding of FERPA because the district has yet to respond to the labor complaint.
“I think that’s what this allegation is about, interpretation,” he said. “So, you know, until we’re able to put our formal response out, I think it would be a little bit irresponsible for me to comment.”
Sentinel reporter Meg McIntyre contributed reporting.