The Pitfalls of Online Life for School District Personnel

Illinois Association of School Personnel AdministratorsJanuary 29, 2015

Tina Christofalos & Michelle Todd

Schools and Social Media

Employee Use, Misuse, and Abuse of Social Networking Sites

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Who’s Online Now? Should We Be Concerned?

81% -- Percent of online teens on social media

24% -- Teens using Twitter (up 50% from ’11 to ’12) (still 77% on Facebook, but the gap is closing)

5.6M kids under 13 on Facebook (even though they’re banned)…that’s ~3.5% of all U.S. Facebook users

55% of parents of 12-year-olds said their child’s on Facebook…76% of those helped the child gain access

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Who’s Online Now? Should We Be Concerned?

School personnel should be concerned if:

Confidential student records and/or personnel records are disclosed

Social media impairs the teacher’s ability to teach

Social media causes an overall disruption in the school environment

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Social Networking Sites, Blogs, and Bloggers

Facebook: 130M+ per monthTwitter: 20M+ per month

Why? Express personal viewpoints pertaining to politics,

entertainment, and local crime Maintain a public or semi-public profile To list and view users with similar viewpoints

Commonly accessed networking sites: Facebook, Twitter, Pinterest, LinkedIn, Google+

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Teachers as Social Networkers

Utilizing blogs and social networking sites positively

Engage in thoughtful educational discourse

Interact with others having mutual interests outside job

Responsible use of educational networking sites

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Illinois Code of Educator Ethics

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Purpose

Establish core principles, values, and responsibilities applicable to all Illinois educators

Set expectations for educators in relation to federal, State, and local policies and rules

23 Illinois Administrative Code 22.10, et seq. (eff. 2-27-14)

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Responsibility to Students

Respect and equal opportunity for each student

Professional relationship with students at all times

While not listed in Code of Ethics, we cannot ignore responsibilities under FERPA and ISSRA

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Responsibility to Colleagues and the Profession

Collaborate with colleagues in their respective schools and districts

Work together to create a respectful, professional, and supportive school climate

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Responsibility to Parents/Families/Communities

Build trust, respect confidentiality, and maintain professional relationships with parents, families, and communities

Understand and respect values and traditions of diversity represented in the community

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Email, Illinois FOIA, and ISSRA

Illinois Freedom of Information Act Email and other electronic communications

may be a public record Think before you send! Do you want this to

circulate publicly?Illinois Student Records Act

Email may be a student recordUse of District Equipment

Use governed by District’s Electronic Networks Policy and implementing procedures

Policy applies regardless of when and where computer is used

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What does this have to do with Facebook?13

Social Media Concerns for School Staff

Potential disclosure of confidential student records and or/personnel records

Impairment of the teacher-student and professional-student relationship

Disruption in the school environment

Potential tort liability

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Teachers as Social Networkers: Negative Uses

Ranting about colleagues, administrators, students, and parents

Disseminating false information

Making embarrassing, defamatory, obscene, proprietary or libelous comments

Engaging in other inappropriate or unprofessional communication with colleagues, administrators, students, and parents

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Yes, it really happens…16

Georgia Teacher

Ashley Payne, a second-year teacher at Appalachee High in Barrow County Georgia, claims she was forced to resign after Facebook pictures of her drinking alcohol were shown to her superiors.

A community member mailed an anonymous email to the superintendent of schools saying that Payne had pictures showing her drinking beer and wine as well as an update saying she was going to play "Crazy B@#%& Bingo."

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http://jobs.aol.com/articles/2011/10/14/georgia-teacher-fired-for-posting-drinking-photos-on-facebook/

Georgia Teacher, cont’d

Payne was a probationary teacher. She sued, claiming the District forced her to resign without due process.

The Barrow County school district claimed that Ashley had to go because her profile page on Facebook had pictures of her with beer mugs and wine glasses from her European vacation.

The pictures in question show Ashley with glasses of alcohol, but not looking intoxicated.

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Brooklyn Teacher

Teacher’s Facebook post:

Teacher: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!”

FB friend: “oh you would let little Kwame float away!”

Teacher: “Yes, I wld (sic) not throw a life jacket in for a million!!”

Post was made one day after a NY girl drowned on a school field trip to the beach

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Brooklyn Teacher, cont’d

The teacher fought her dismissal, claiming that her friend signed onto her computer and posted that as her (some friend)

An arbitrator in New York upheld her dismissal and she continued to fight

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Brooklyn Teacher, cont’d

New York court ultimately found that decision to dismiss teacher was unwarranted and “shocking to one’s sense of fairness”

None of her students or their parents were part of her network

She deleted the comments 3 days later

The teacher did not have prior disciplinary history

Rubino v. City of New York, 34 Misc.3d 1220(A) (2012), 106 A.D.3d 439 (2013)

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Florida Teacher

Inappropriately accessed his Facebook account during work hours to carry on a conversation with a former female student, who is a minor.

Displayed the Facebook page on the class smartboard, exposing his conversation with the student, and revealing inappropriate pictures and discussion.

The student who he was messaging with had a thumbnail photo of her in a bikini, and Ginchereau also showed his class other photos of her on her profile.

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Florida Teacher, cont’d

Ginchereau did not have a former record of misconduct and was apologetic. So, ALJ:

Upheld suspension without pay

Reinstated teacher

Ordered remedial education on the proper use of the School District's technology

Orange County School Board v. Ginchereau, 2013 WL 5966272 (Fla.Div.Admin.Hrgs. Oct. 31, 2013)

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Disciplining Employees for Online Activity

Considerations:

Applicable Board Policies, procedures, and CBA

Employment status of the employee

Nature of the offending conduct

Nexus between the conduct and job performance

First Amendment considerations

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Access to Employees’ Social Media Sites

Right to Privacy in the Workplace Act, 82 ILCS 55/10

Employers cannot demand access to employees’ or applicants’ personal social networking sites

However, employers can monitor employees’ use of social networking sites or email on equipment owned by the district

Employers can obtain information about employee or applicant that is in public domain

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Acceptable Use Policy

PRESS Board Policy 6:235

“Students and staff members have no expectation of privacy in any material that is stored, transmitted, or received via the District’s electronic networks or District computers.”

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Ethics Policy

PRESS Board Policy 5:120

“All District employees are expected to maintain high standards in their school relationships, to demonstrate integrity and honesty, to be considerate and cooperative, and to maintain professional relationships with students, parents, staff members, and others.”

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Personal Tech and Social Media Policy

PRESS Board Policy 5:125

Cross-references several policies: 5:20 – Workplace Harassment Prohibited 5:120 – Ethics and Conduct 6:235 – Access to Electronic Networks 7:20 – Harassment of Students Prohibited

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CBA Provisions30

Before disciplining, check your CBAs

Sometimes procedural requirements apply

Watch for language about “just cause” or progressive discipline

Disciplining Employees for Online Activity

Employment Status

Probationary teachers Follow statute

Educational Support Personnel (ESPs) More flexibility, but check for “just cause”

Tenured teachers Sufficient cause & irremediability needed

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Disciplining Tenured Teachers

Cause

Unprofessional or immoral conduct

Incompetence, cruelty, negligence or other sufficient cause

Off-Duty misconduct? Nexus between off-duty conduct and professional responsibilities

Progressive discipline

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Disciplining Tenured Teachers

Irremediable

Conduct causes significant damage to students, faculty or the school

Conduct could not have been corrected had the teacher’s superiors warned him/her

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Nature & Nexus34

Nature of the offending conduct

Nexus between conduct and job

Michigan Teacher35

Photos of tenured middle school teacher engaged in a simulated act of fellatio on a male mannequin posted on website

Photos taken without teacher’s knowledge at bachelor/ bachelorette party, posted without her consent

Students gained access; when teacher found out, she had photos removed

Michigan Teacher, cont’d36

Board followed Supt’s recommendation & dismissed

ALJ upheld dismissal; State Tenure Comm’n reversed; Appellate Court affirmed STC

Conduct (1) didn’t involve students, (2) wasn’t committed on-duty, & (3) wasn’t intended to be seen by, known by, or discussed with students

Negative publicity alone isn’t enough

Land v. L’Anse Creuse Public School BOE (MI Ct. App. May 27, 2010)

Disciplining Employees for Online Activity

First Amendment Considerations

Speaking as a public employee (little protection) or a private citizen (more protection)?

About a personal issue(little protection) or a matter of public concern (more protection)?

Balancing of interests between employee’s right to free speech and employer’s right to efficient operations of its schools

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New Jersey Teacher

23 1st grade students in techer’s class; almost all 6-year-olds who were either Latino or African-American

Teacher posted on Facebook: “I am a warden for future criminals” “They had a scared straight program in school—why couldn't [I]

bring [first] graders?”

Some of her students’ parents were her Facebook friends

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New Jersey Teacher, cont’d

Commissioner of Education:

O'Brien's Facebook postings were not constitutionally protected;

Evidence established that O'Brien engaged in conduct unbecoming a teacher; and

Removal was the appropriate penalty

In re: O'Brien, 2013 WL 132508 (N.J. Super. App. Div. 2013)

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Pennsylvania Student Teacher

Student teacher placed at high school, told not to post on her web page about her students

On MySpace, posted picture of herself dressed as a “drunken pirate” and posted: “First, Bree said that one of my students was on here looking at

my page, which is fine. I have nothing to hide. I am over 21, and I don't say anything that will hurt me (in the long run). Plus, I don't think that they would stoop that low as to mess with my future. So, bring on the love! I figure a couple of students will actually send me a message when I am no longer their official teacher. They keep asking me why I won't apply there. Do you think it would hurt me to tell them the real reason (or who the problem was)?”

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Pennsylvania Student Teacher, cont’d

Was not allowed to finish her student teaching practicum

As a result, was not able to get the college degree she had been working toward; had to settle for lesser degree

Sued her college and school and lost

Snyder v. Millersville Univerisity, 2008 WL 5093140 (E.D. Pa. Dec. 3, 2008)

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TAP Test for Employee Communications

Transparent All communications between staff and students should be transparent.

Public School Employees are expected to maintain openness, visibility, and accountability with regard to all communications with students.

Accessible All communications between staff and students should be considered a

matter of record, part of the District archives, and/or accessible by others.

Professional All communications between staff and students shall be conducted in a

professional manner and as representing the District. Professionalism in this context includes, but is not limited to, word choice, tone, grammar, and subject matter.

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How Can I Safely Maintain My Online Presence?

Practical Considerations

You control the posts on your wall…44

You control your privacy settings…

Though Facebook likes to change them often

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You control your privacy settings.

Public Profile?48

Control Tagging…49

Practical Considerations

Control what information applications can access through Facebook

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Practical Considerations

Google yourself: Periodically police your online image

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Practical Considerations

Review applicable Board of Education policies and procedures

FOIA/Student Record concerns – disclosure of electronic media, emails, information stored on District equipment

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Practical Considerations

Do not discuss students, parents or coworkers on your social networking site

Do not use personally identifiable information on your site in relation to colleagues, parents and especially students

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Practical Considerations

Think about your personal site. Do you have any questionable material? Take it off, immediately

Remember your mandated reporter

obligations

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Guidelines for electronic communications with students, staff, parents and community members

General Personnel55

General Personnel Guidelines

Do not discuss students, parents, or co-workers on personal social networking sites, even if you do not identify them.

Do not post any personally identifiable information regarding students, parents, or co-workers on social networking sites.

When communicating via email with students, parents or staff, be conscientious. Remain respectful, even in adversarial situations. Use complete sentences and proofread all emails.

Do not use email, text messages, or social networking sites to develop or maintain an inappropriate relationship with students, parents, or staff members.

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General Personnel Guidelines

Do not send or receive provocative pictures if you believe students may gain access.

If you “friend” students, parents, or other staff members, be cautious of the personal information you post.

Review your social networking sites to determine if you have any inappropriate information. If you do, and it can be accessible to students, remove it.

Set your privacy settings so that only your “friends” can see pictures and information.

Set your security settings to limit who can “tag” you in pictures.

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Arlington Heights, IL (847) 670-9000

O’Fallon, IL (618) 622-0999

www.hlerk.com

Peoria, IL(309) 671-9000

Tina Christofalos (tchristofalos@hlerk.com)

Michelle Todd (mtodd@hlerk.com)

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