Three-Dimensional Active Threat Management: Crisis Communications and Emergency Legal Preparedness

Presented March 7, 2023 | WASBO Facilities Conference

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TOM BRANIGAN

CEO

Branigan

JENNIFER BAUER ROCHE

Director of Crisis Communications and Brand Reputation

Branigan

BOB SIMANDL

Attorney and Shareholder

Von Briesen & Roper, S.C.

today's scenario:

A well-respected teacher, who is also the Badgerland High School (BHS) girls’ varsity softball coach (Coach X), has been accused of sexual harassment and misconduct by a former student.

The alleged misconduct occurred during the BHS 2018 softball season when the student (Jane Doe) was a senior.

Coach X allegedly kissed Jane Doe after practice on several occasions and the two exchanged explicit messages using the Snapchat app.

Jane Doe is now 22 years old and her younger sister has expressed a desire to try out for the varsity softball team, still led by Coach X.

Jane Doe presented these allegations to the school principal because she is now concerned for her sister.

You are the district superintendent and the principal has just informed you of the situation.

For the sake of time today, in this scenario, we assume that your district’s emergency operating plan would have you:

Notify law enforcement.
Notify the district’s Title IX coordinator.
Place the teacher on administrative leave, including:
- Implementing suspension pending further investigation and request no contact between the coach and anyone associated with the school, including the complainant, students, parents, other teachers and staff.
- Prohibiting Coach X from school grounds and all extracurricular activities until the third-party investigation is complete.
- Temporarily locking down access to his computer, email and office.
- Encouraging union representation to serve as an advocate for Coach X during the investigation process.
- Maintaining confidentiality about the situation and assume Coach X’s innocence until proven guilty.
Offer counseling services to the former student Jane Doe.
Have an assigned person chronicle the facts of this situation, as they occur.
Identify a substitute teacher and coach.

Knowing that Coach X is a popular educator, and, due to the seriousness of the allegations, we would recommend hiring a third party to begin an immediate investigation.

An external investigation ensures that it is unbiased and impartial, enabling district leadership to preserve the trust of community members.

The investigator/s would focus on the following:

Are the allegations true?
Is there evidence that Coach X engaged in inappropriate behavior with other students?
Have there been other reports of misconduct at BHS that would enable prosecutors or the media to establish a pattern of school district negligence?

The district should always cooperate with law enforcement’s investigation and allow that process, including the possibility of criminal charges, to proceed as law enforcement sees fit.

It is important to be aware and respect any property and liberty interests that may be associated with the position and afford all rights and protections as required by law.

In a crisis, time is of the essence and many of these activities may be concurrent with each other.

your district's go team:

Is empowered to act in crisis situations.
Has a predetermined chain of command and protocol of how/when to communicate.
- Members must have accurate contact information and be able to easily meet, via conference call, video conference or in person.
Members should always include:
- Designated spokespeople who have been media trained
- Legal counsel
- Representatives from all key areas of the district (facilities, HR, etc.)
- Local first responder (whenever possible)

To ensure that the district’s communications on this matter will be protected by attorney-client privilege you must:

Have the district’s legal counsel designate the GO Team as the “eligible group” to receive information or be involved in discussions.

Have public records request policy up-to-date and confirmed by legal counsel.

Add “subject to attorney-client privilege” to the top of all documents associated with privilege.

Store the information in a secure location (locked filing cabinet, password-protected electronic files).

Closely scrutinize any open records request and determine if requested documents are subject to disclosure and if any redaction is necessary.

Coordinate any disclosure of documents with legal counsel before complying.

Any disclosure of information to a party outside of this designated school district group/GO Team may destroy the protected nature of the information.

Communications between a client (in this case a designated group of school district leaders/GO Team) and attorney are privileged from compelled disclosure, provided the information is maintained by the client and not otherwise shared.

Prepare your messaging for internal and external audiences

Always tell the truth.

Avoid rumors and take control of the narrative by releasing a factually accurate statement quickly.

Determine the appropriate communication channels for each audience.

Remember that any communication could be viewed by the media. (Do not proactively share statements with media unless you are asked.)

Reactive or proactive: determining your communications approach...

In this scenario, we recommend a reactive communications approach because:

The alleged misconduct occurred several years ago.

The victim is no longer a student.

The district is unaware of continued misconduct or any recent allegations against Coach X.

The more the district says about the accusations, the more attention it will draw.

THE DISTRICT SHOULD:

Only communicate when necessary in a concise, fact-based manner that puts victims first.

Use media statements to convey the district’s commitment to values, situational leadership, empathy and establish situational facts.

Decline interviews — only use approved statements.

Anchor 1

A proactive approach would be necessary if one of the following thresholds is met:

The facts change, and significant, verifiable information comes to light that district personnel or administration knew of allegations at the time they occurred and was negligent by not reporting them, making the district complicit in this situation.

Local/regional, sustained media attention critical of Badgerland School District gains sufficient traction

(even if claims are false, they will require direct outreach to correct the record).

National media attention places a spotlight on the Badgerland School District, impacting its credibility, reputation, etc.

Anchor 2

Sample message to notify families of

the investigation

Dear [Parent name],

I’m writing today to share some news about our district. Yesterday, Badgerland High School (BHS) Principal John Smith was contacted by a former student who shared allegations that, in 2018, a current BHS educator engaged in inappropriate behaviors with them, while the student was a minor.

Principal Smith notified me immediately and I can assure you that we take all allegations of misconduct very seriously. We immediately placed the educator on paid administrative leave, pending the outcome of an independent third-party investigation. We also notified the Badgerland Police Department and are cooperating fully with their investigation.

The Badgerland District does not tolerate any form of employee misconduct and is committed to maintaining an environment free of harassment or inappropriate behaviors by our professional staff. I commend the individual who came forward for their bravery in sharing this extremely difficult experience and encourage anyone who needs support to please reach out to the Badgerland School District’s Title IX Coordinator at 555.555.5555 or titleix@email.com.

We thank you for your patience as work through this very difficult situation.

Sincerely,

NAME HERE

Superintendent, Badgerland School District

The legal aspects of the situation also need to be considered.

Confirm with GO Team spokesperson the messaging and process to follow before making public statements.

Remind staff that only the district spokesperson is authorized to speak

on behalf of the district.

A legal cause of action may arise against persons who repeat gossip or speculate on the facts and circumstances, creating individual liability.

Keys to message development:

Get the facts
- Determine what is real, what occurred and the extent of its impact on stakeholders (students, parents, employees and members of the community).

Anticipate questions
- What will stakeholders want to know?

Develop themes
- Determine 3-5 overarching themes and write them in plain language, avoiding acronyms and technical terms.

Craft the message
- Short, concise and clear to help limit follow-up questions.
- Can be read in 30-60 seconds.
- Always tell the truth, even where it may not reflect well on the district.

Read the statement aloud
- Assists in the editing process.

All public statements must be vetted and approved by your legal counsel before release.

Preauthorized

holding statements

Creating preauthorized holding statements for your district’s most likely, highest-impact scenarios

(active shooter, classroom violence, extreme weather, misconduct, etc.) will:

Remember that all statements MUST be approved by the district’s legal counsel before release.

Enable a faster initial response to a crisis.

Indicate timing for future updates.

Help to avoid rumors

by taking control of the narrative and getting the facts out.

Sample media holding statement, if needed

Last week, the Badgerland School District learned that one of our employees allegedly engaged in inappropriate contact with a minor in 2018. The school district takes all allegations of misconduct very seriously and immediately placed this employee on paid administrative leave, pending the outcome of a third-party investigation. We support all of our students, faculty and staff in a workplace free from inappropriate behaviors. The district will continue to cooperate fully to assist the third-party individuals and the Badgerland Police Department until their investigation of this situation is complete.

When the media approaches students or staff for interviews off of school property

Remind students and staff that comments about the investigation or prior experiences are not permitted.

Gratuitous statements can create personal liability for civil prosecution – not limited as to liability.

Only the district’s approved spokesperson may speak to the media.

IDENTIFY SPOKESPEOPLE

Formally identifying your district’s media spokespeople in advance will:

District’s spokespeople must always be members of the GO Team and should have media training with situation-specific questioning a minimum of once a year.

Ensure that media inquiries are sent to the right place.

Reduce confusion and delay during a crisis.

Gives peace of mind that your district will be well represented.

The dangers of unofficial statements

Those in leadership roles with your district should be aware that:

Off-the-cuff comments they make can be extremely damaging.

Any comment (including those made in private conversation) can be construed as the district's official position and used against the district in a legal setting.

Employees may not speak on behalf of the district without authorization. If a staff member is interviewed and gives misinformation:

If acting as a district representative, an immediate retraction is required with a clarifying statement published.

If acting as an individual, remind them as to the exposure created by making personal comments and have the district disavow the statement.

Draft media statement on Coach X’s termination:

The Badgerland School District was deeply disturbed to learn of allegations that one of its employees, [insert Coach X’s name here ONLY if it has already elsewhere been made public], engaged in inappropriate contact with a minor in 2018. We take all allegations of misconduct very seriously and immediately placed this individual on paid leave, while simultaneously instituting a third-party investigation of the matter. The district’s investigation, as well as investigations conducted in cooperation with the Badgerland Police Department, have resulted in our decision to terminate this individual’s employment.

The Badgerland School District is committed to maintaining a safe, welcoming and harassment-free environment. We support all students, faculty and staff in the challenges that they face. We commend the bravery of the individual who came forward to share these extremely difficult experiences, and encourage anyone who needs support to reach out to the Badgerland School District’s Title IX Coordinator at 555.555.5555 or titleix@email.com.

Top crisis communications takeaways

#1 Create a crisis communications GO Team.

#2 Formally identify primary spokespeople and ensure they have been media trained.

#3 Create holding statements for the most likely, highest impact scenarios.

#4 Develop your message by:

Getting the facts
Anticipating questions
Developing themes
Crafting the message

#5 Determine which mediums are best to communicate with different stakeholder groups.

Anchor 4

KEY SYS

Proactive steps for crisis communications planning & response

Conduct a vulnerability/risk assessment
- Includes interviews with key employees and secondary research

Build a custom crisis and issues communications plan
- Includes classification of crises to ensure easy identification and proportional response step-by-step, easy-to-understand scenario guides

Provide plan implementation and training
- Includes what employees should expect, media training and scheduling a system test

Assist with the adoption of a crisis notification system (most schools already have this in place) and on-call consultation

Post-crisis reputation recovery to ensure district continuity
- Includes continued follow-up to gauge and respond to stakeholder concerns

Ongoing issues management

Top legal preparedness takeaways

#1 Develop policies and protocols on the reporting of misconduct at the district with at least two points of contact for students and staff.

#2 Maintain attorney/client privilege for information of a confidential nature.

#3 Advise leadership of the impermissibility of making “district statements” without authorization and the dangers of unofficial statements.

#4 Ensure that all faculty and staff understand the definition of educator sexual misconduct and the district’s policies against it. Publish your policy annually and conduct annual sexual harassment and workplace misconduct training.

#5 Practice emergency response preparedness including responder and leadership responsibilities.

#6 Ensure that legal counsel is a part of the response/GO Team.