Could a Maryland school system investigate its own employee for suspected child abuse separately from the police or social services investigation?

Plain-English summary

A state senator asked the Attorney General a set of five interlocking questions after the Howard County Board of Education adopted a policy letting its own staff investigate allegations that a school employee had committed child abuse, separately from the investigation Maryland law required the local department of social services ("local DSS") and the police to conduct. The senator asked whether a school system could run that kind of personnel investigation at all, whether it needed its own investigative findings before disciplining an employee, whether the school system and its employees were immune from liability for conducting the investigation, whether interfering with the official child abuse investigation carried any penalty, and what procedure applied when the suspected abuser worked for the very agency responsible for investigating abuse reports.

The opinion found a middle path. It concluded a school system could conduct its own internal personnel investigation of an employee accused of child abuse, because nothing in the Child Abuse subtitle of the Family Law Article stripped school boards of the authority the Education Article otherwise gave them to gather facts needed for discipline, but the General Assembly clearly meant the local DSS and police investigation to take priority. So the school system's own investigation had to wait until the abuse was reported to DSS or police, had to be disclosed to those agencies, could not include interviewing the victim, the accused, or witnesses without DSS or police consent, had to keep what it learned confidential, and should not reach a final disciplinary decision without the State's Attorney's concurrence if criminal charges might follow. On the evidence question, the opinion found a superintendent did not need the school's own investigation at all: evidence gathered by school staff serving on a multidisciplinary team could support discipline, though only after a court order authorized disclosing that otherwise confidential information at the hearing. On immunity, the opinion found the school system itself was not fully shielded, but an individual employee who conducted the investigation in good faith on a supervisor's instructions was generally immune from personal liability for a tortious act or omission. On interference, the opinion found no statute specifically penalized interfering with a child abuse investigation, though general obstruction offenses might theoretically apply in extreme cases, and that the State Board of Education could not force local boards to follow its non-binding model policy against internal investigations, since that policy was never adopted as a bylaw or regulation. Finally, when the suspected abuser worked for the very agency responsible for investigating abuse reports, the opinion concluded a different, unconflicted agency had to handle the investigation.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Maryland's child abuse reporting and investigation statutes, the Education Article's teacher-discipline provisions, and the confidentiality statute discussed here (then codified at Article 88A, §6) have since been amended and recodified in places; verify the current statutory citations and any newer guidance on school investigations of employee child abuse allegations before relying on any specific rule described here.

Common questions

Could a Maryland school board investigate its own employee for child abuse on top of the official DSS or police investigation? According to this 1991 opinion, yes, but only within limits meant to protect the primary investigation: the school system could not start investigating until the abuse had been reported to the local department of social services or police, had to tell that agency it intended to investigate, and could not interview the victim, the accused employee, or witnesses without that agency's prior consent.

Did a school superintendent need the results of the school's own investigation before disciplining an employee? No. The opinion concluded a superintendent did not need direct investigative information at all; evidence gathered by the local DSS or police could be introduced at a disciplinary hearing through school staff who served on a multidisciplinary case consultation team, so long as a court first authorized disclosure of that otherwise confidential information for use at the hearing.

Were school employees personally liable if something went wrong during their own investigation of a colleague? Generally no, according to the opinion, as long as the employee acted in good faith on a supervisor's instructions and within the scope of employment; the school system itself, however, did not enjoy the same complete immunity and could face liability for the investigation.

Was there a specific crime for interfering with a child abuse investigation? No. The opinion found no statute created a specific offense for interference, though it noted the general common-law offenses of obstructing a police officer or obstruction of justice could theoretically apply in extreme circumstances, which it considered very unlikely to arise from an ordinary school personnel investigation.

Background and statutory framework

The dispute arose after the Board of Education of Howard County adopted a June 27, 1991 "Policy on Child Abuse, Sexual Abuse and Neglect" directing that, when a report alleged a school employee was the abuser, the superintendent's designee, cooperating with law enforcement, would "promptly investigate the charges against the employee" for personnel purposes. Professional school employees could be suspended or dismissed for "immorality" or "misconduct in office" including failing to report suspected abuse, ED §6-202(a)(i) and (ii), following due-process procedures requiring notice of charges, an opportunity for a hearing with counsel and witnesses, and a right of appeal to the State Board of Education, ED §6-202(a)(2)-(4), consistent with the Fourteenth Amendment's due process mandate, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46 (1985). Because ED §6-202 required the school board to have sufficient evidence to support discipline and to let the employee respond, Resetar v. State Board of Education, 284 Md. 537, 553, 399 A.2d 225 (1979), the opinion reasoned the board necessarily had implicit authority to find out whether such evidence existed, unless that authority was cut off by the separate Child Abuse subtitle of the Family Law Article.

That subtitle, FL Title 5, Subtitle 7, required health practitioners, police officers, educators, and human service workers to report suspected abuse immediately to the local DSS or police, FL §5-704(a)(1) and (b)(1)(i), with the receiving agency required to notify the other, FL §5-704(b)(2)(i), and a written follow-up report due within 48 hours, FL §5-704(b)(1)(ii). The local DSS or police were then required to conduct a thorough, prompt investigation, FL §5-706(a)(1), including seeing the child within 24 hours, FL §5-706(b), determining the nature and cause of the abuse and the abuser's identity, FL §5-706(c), completing the investigation within 10 days where possible, FL §5-706(g)(1), and reporting findings to the State's Attorney, FL §5-706(h) and (i); for sexual abuse allegations, the responsible agencies had to implement a joint investigation procedure designed to expedite validation, reduce trauma to the child, and train personnel, FL §5-706(f)(1) and (2). The opinion traced this scheme's history from the 1963 child-mistreatment statute, Chapter 743, Laws of Maryland 1963, through the 1966 act designating the local DSS as the principal investigating agency, Chapter 221, Laws of Maryland 1966, the 1973 act adding the police as a co-investigating agency, Chapter 835, Laws of Maryland 1973, the 1984 recodification into the Family Law Article, Chapter 296, Laws of Maryland 1984, that same year's joint-investigation and training mandate arising from the Governor's Task Force on Child Abuse and Neglect, Chapter 611, Laws of Maryland 1984, and later amendments consolidating and updating the subtitle, Chapter 635, Laws of Maryland 1987, and Chapter 6, Laws of Maryland 1988. Throughout this history, the opinion found no suggestion that the General Assembly meant to let some other agency, like a school system, conduct a competing investigation of the same abuse allegation for its own purposes, but it likewise found nothing flatly barring a school system from separately investigating for the different purpose of deciding on employee discipline.

Reconciling these goals, the opinion concluded a school system's personnel investigation had to give way to the primacy of the official abuse investigation: it could not begin, or at least could not act, before the report was made to DSS or police, FL §5-704; it had to notify the primary investigative agency of its intent and follow whatever limits that agency imposed, particularly on contacting the alleged abuser or witnesses; it could not interview the victim without DSS or police consent; it had to protect the confidentiality of information it learned, since "all records and reports concerning child abuse ... are confidential" under Article 88A, §6(b); and it should not press a final disciplinary decision to conclusion, given a modest risk of a collateral estoppel effect on a later criminal case, Bowling v. State, 298 Md. 396, 470 A.2d 797 (1984); Washington Suburban Sanitary Comm'n v. TKU Associates, 281 Md. 1, 18-19, 376 A.2d 505 (1977), without the State's Attorney's concurrence.

On the evidence question, the opinion found a superintendent could rely entirely on the DSS or police investigation rather than conducting an independent one. Article 88A, §6(b)(2) allowed disclosure of confidential abuse records to members of a "multidisciplinary case consultation team," a body defined by COMAR 07.02.07.17A and required by COMAR 07.02.07.17B to include educational-agency personnel, consistent with the federal Child Abuse Prevention and Treatment Act's grant conditions, 42 U.S.C. §5106c(a) (1988), and its implementing regulation requiring investigations that may include "reviews by multidisciplinary teams," 45 C.F.R. §1340.14(d). But the opinion cautioned that access to information was not the same as authority to disclose it: under current law, a school system could introduce that confidential information at a disciplinary hearing only by first obtaining a court order under Article 88A, §6(b)(1) authorizing disclosure, since improper disclosure was itself a criminal offense, Article 88A, §6(e).

On immunity, the opinion found the Child Abuse subtitle's own immunity, FL §5-708, tied to CJ §5-362, protected people who made reports or participated in the official investigation, which did not include a school system acting under its separate Education Article authority; a school system conducting a good-faith internal investigation, Catterton v. Coale, 84 Md. App. 337, 579 A.2d 781 (1990), cert. denied, 321 Md. 638, 584 A.2d 67 (1991), fell outside that specific grant. But two other immunities applied: school employees generally were not personally liable for torts committed within the scope of employment, CJ §5-353(e), and were not personally liable for actions taken while participating in a dismissal or disciplinary proceeding within the scope of employment, ED §6-109(b) and CJ §5-354(b), with "scope of employment" meaning the employee was advancing the employer's interests, Rusnack v. Giant Food, Inc., 26 Md. App. 250, 265, 337 A.2d 445, cert. denied, 275 Md. 755 (1975); Dhanray v. Potomac Elec. Power Co., 62 Md. App. 94, 99, 488 A.2d 512 (1985). The school board itself, however, could face liability up to the limits of CJ §5-353(b).

On interference, the opinion found no statute created a distinct offense for interfering with a child abuse investigation, though the common-law offenses of obstructing a police officer or obstruction of justice might theoretically apply, Cover v. State, 297 Md. 398, 466 A.2d 1276 (1983); Sibiga v. State, 65 Md. App. 69, 499 A.2d 485 (1985); Mayne v. State, 45 Md. App. 483, 414 A.2d 1 (1980), while finding the necessary criminal intent extremely unlikely to arise in an ordinary school personnel investigation. On the civil side, the opinion found the State Board of Education's statutory authority to enforce its own bylaws, rules, and regulations, ED §2-205(b)(1), (c)(1)-(3), and (d)(2), did not extend to the Department of Education's model Child Abuse and Neglect Policy discouraging internal school investigations, since a county board's educational-policy authority, ED §4-107(3), was subject only to properly adopted State Board bylaws, rules, and regulations, ED §4-108(a), and the model policy was never adopted as one.

Finally, the opinion turned to conflicts of interest: federal regulation required that when a report of suspected abuse implicated the agency, institution, or facility that would ordinarily receive the report, "a different properly constituted authority must receive and investigate the report," 45 C.F.R. §1340.14(e), a principle echoed in state regulations for reports implicating a State or local-department employee, COMAR 07.02.07.06D. While no Maryland statute directly addressed this for school-employee cases, the opinion concluded that when the suspected abuser worked for the agency normally charged with investigating the report, a different responsible investigative agency had to conduct the investigation to avoid the conflict.

Citations and references

Statutes:

• §5-701(k) of the Family Law Article, defining "law enforcement agency"
• ED §6-202, general teacher/professional-personnel dismissal and due process scheme
• ED §6-202(a)(i) and (ii), grounds of "immorality" and "misconduct in office" for dismissal
• ED §6-202(a)(2)-(4), notice, hearing, and appeal rights before dismissal
• ED §6-202(b), excluding probationary staff from tenure due-process protections
• FL §5-704(a)(1) and (b)(1)(i), mandatory oral reporting of suspected abuse
• FL §5-704(b)(2)(i), cross-notification duty between DSS and police
• FL §5-704(b)(1)(ii), 48-hour written follow-up report requirement
• FL §5-706(a)(1), duty to promptly and thoroughly investigate reports
• FL §5-706(b), 24-hour requirement to see the child and assess safety
• FL §5-706(c), required scope of the investigation's findings
• FL §5-706(d), State's Attorney's role assisting the investigation
• FL §5-706(f)(1) and (2), joint investigation procedure for sexual abuse cases
• FL §5-706(f)(2)(iii), ongoing training program requirement
• FL §5-706(g)(1), 10-day investigation completion target
• FL §5-706(h) and (i), reporting findings to the State's Attorney
• FL §5-701(b)(1), defining "abuse"
• FL §5-705, reporting duty for non-professional reporters
• FL §5-710(a), local DSS's duty to render services based on its findings
• FL §5-710(b), State's Attorney's emergency removal petition authority
• FL §5-708, immunity for those participating in reports and investigations under the subtitle
• Article 27, §35A of the Maryland Code, State's Attorney's authority to file criminal abuse charges
• §3-820(c)(1)(ii) of the Courts Article, juvenile court commitment/removal relief
• Chapter 743, Laws of Maryland 1963, the original child-mistreatment criminal statute
• Chapter 221, Laws of Maryland 1966, establishing local DSS as principal investigating agency
• former §11A of Article 27, the 1966 reporting and investigation statute
• Chapter 835 of the Laws of Maryland 1973, adding police as a co-investigating agency
• Chapter 296 of the Laws of Maryland 1984, recodifying family law including child abuse provisions
• Chapter 611, Laws of Maryland 1984, mandating joint investigation agreements and training
• Chapter 635, Laws of Maryland 1987, consolidating child abuse and neglect provisions
• Chapter 6, Laws of Maryland 1988, adding the local health officer to joint investigation agreements
• Article 88A, §6(b), confidentiality of child abuse records and reports
• Article 88A, §6(b)(1), court-order requirement for disclosure at a hearing
• Article 88A, §6(b)(2), disclosure to multidisciplinary case consultation team members
• Article 88A, §6(e), criminal penalty for improper disclosure
• COMAR 07.02.07.17A, defining a multidisciplinary case consultation team
• COMAR 07.02.07.17B, requiring inclusion of educational-agency personnel on the team
• COMAR 07.02.07.06D, conflict-of-interest procedures for State/local-department employee abuse reports
• 42 U.S.C. §5106c(a) (1988), federal Child Abuse Prevention and Treatment Act grant conditions
• 45 C.F.R. §1340.14(d), federal regulation on investigation methods including multidisciplinary review
• 45 C.F.R. §1340.14(e), federal regulation requiring a different agency to investigate conflict-of-interest reports
• 45 C.F.R. §1340.14(i)(3), federal confidentiality requirements
• CJ §5-362, statutory immunity for good-faith reporters and investigation participants
• ED §6-109(a) and CJ §5-354(a)(1), immunity for employees who report suspected abuse
• CJ §5-353(e), general immunity for school employees acting within scope of employment
• ED §6-109(b) and CJ §5-354(b), immunity for employees participating in disciplinary proceedings
• CJ §5-353(b), limits on the school board's own liability
• ED §2-205(b)(1) and (c)(1), State Board's authority to set educational policy and adopt regulations
• ED §2-205(c)(2) and (3), force-of-law effect of State Board bylaws and regulations
• ED §2-205(d)(2), State Board's authority to enforce its bylaws and regulations
• ED §4-107, enumerated duties of county boards of education
• ED §4-107(3), county board's educational-policy authority
• ED §4-108(a), county board authority subject to State Board bylaws and regulations

Cases:

• Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46 (1985), U.S. Supreme Court decision on due process before dismissal
• Resetar v. State Board of Education, 284 Md. 537, 553, 399 A.2d 225 (1979), Maryland Court of Appeals decision on the evidentiary burden for teacher dismissal
• Parker v. Board of Education, 237 F. Supp. 222 (D. Md.), aff'd 348 F.2d 464 (4th Cir. 1965), federal decision on Maryland teacher tenure
• Bowling v. State, 298 Md. 396, 470 A.2d 797 (1984), on collateral estoppel from non-criminal proceedings in later criminal cases
• Washington Suburban Sanitary Comm'n v. TKU Associates, 281 Md. 1, 18-19, 376 A.2d 505 (1977), setting out the collateral estoppel test
• Catterton v. Coale, 84 Md. App. 337, 579 A.2d 781 (1990), cert. denied, 321 Md. 638, 584 A.2d 67 (1991), on the good-faith standard for immunity
• Rusnack v. Giant Food, Inc., 26 Md. App. 250, 265, 337 A.2d 445, cert. denied, 275 Md. 755 (1975), on the "scope of employment" test
• Dhanray v. Potomac Elec. Power Co., 62 Md. App. 94, 99, 488 A.2d 512 (1985), applying the same scope-of-employment test
• Cover v. State, 297 Md. 398, 466 A.2d 1276 (1983), on obstructing or hindering a police officer
• Sibiga v. State, 65 Md. App. 69, 499 A.2d 485 (1985), on obstruction offenses
• Mayne v. State, 45 Md. App. 483, 414 A.2d 1 (1980), on obstruction offenses

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 220-239 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

FAMILY LAW

Child Abuse and Neglect - Education - Public Schools - Investigations By School Systems of Allegations That Employees Committed Child Abuse

December 17, 1991

The Honorable Thomas M. Yeager
Maryland Senate

You have requested our opinion on several issues concerning investigations by school system personnel of allegations that a school system employee committed child abuse. Specifically, you have asked:

1. Is a school system authorized to conduct, for personnel purposes, an investigation of allegations of abuse of a student by a school system employee independent of the child abuse investigation conducted by a local department of social services ("local DSS") or the police? If the school system has that authority, what procedures must the school system follow?

2. Is direct investigative information a prerequisite to administrative action against a school employee accused of abusing a student?

3. Do a school system and its employees enjoy immunity for acts or omissions during the school system's investigation?

4. If the school system's investigation compromises or interferes with the one conducted by the local DSS or the police, or adversely affects a criminal case prior to disposition, is the school system subject to any criminal or civil penalty or liability?

5. Does Maryland law provide any procedures to follow when conflicts of interest arise in investigations of child abuse?

In responding to your inquiry, we face a significant problem of statutory construction. It would be easy enough to say, using the exact phrasing of your question, that a school system has no authority to conduct its own "child abuse investigation." But that response would not really deal with the issue, because a school system can contend with merit that an investigation conducted solely for the purpose of gathering evidence for a personnel hearing is not a "child abuse investigation."

The issue is not a matter of terminology but of statutory scope.
There is no doubt that the General Assembly wanted only specific agencies, not including a school system, to do an investigation in order to figure out how to help the child and whether to prosecute the alleged abuser. And the legislative history supports the conclusion that no collateral investigation by someone else of the same facts may interfere with the primary investigation. What we are unable to conclude, under current law, is that the General Assembly has flatly prohibited a school system from conducting an investigation in order to figure out what to do with an employee who has been accused of child abuse.

Our conclusion, in short, is that a school system may conduct its own personnel inquiry, but only within limits that ensure the primacy of the child abuse investigation. If the General Assembly concludes that a different outcome is preferable, it is free to change the statute accordingly.

More specifically, our opinion is as follows:

In Part I of this opinion, we conclude that a school system may conduct its own internal personnel investigation of alleged child abuse by an employee if it complies with the following limitations: (i) The school system may take no investigatory action prior to the submission of a report about the incident to the local DSS or the appropriate law enforcement agency.1 (ii) The school system should notify the local DSS or the police of its intention to conduct an internal investigation, (iii) The school system should not interview the victim of the alleged abuse, the alleged abuser, or any potential witness without the prior consent of the local DSS or the police, (iv) The school system must keep confidential any information about the alleged child abuse that it learns during the course of its internal investigation, (v) In order to avoid any possible risk of a collateral estoppel effect on a criminal prosecution, the school system should not seek to adjudicate a final disposition of a personnel action against an alleged child abuser, where the charges are based on the alleged abuse, without the prior consent of the State's Attorney.

1
The term "law enforcement agency" is defined as follows:
(1) "Law enforcement agency" means a State, county, or municipal police department, bureau, or agency.
(2) "Law enforcement agency" includes:
(i) a State, county, or municipal police department or agency;
(ii) a sheriff's office;
(iii) a State's Attorney's office; and
(iv) the Attorney General's office.
§5-701(k) of the Family Law Article ("FL" Article). For brevity's sake, and to reflect common practice, this opinion will generally refer only to "police" investigations.

In Part II, we conclude that a local superintendent of schools does not need direct investigative information to take appropriate action against a school employee suspected of child abuse. With court approval, school personnel who are members of a multidisciplinary team may disclose information obtained by the local DSS or the police for use in a disciplinary hearing.

In Part III, we conclude that a school system does not enjoy complete immunity from liability if it conducts an independent personnel investigation of an allegation that one of its employees committed child abuse. However, a school system employee undertaking such an investigation in accordance with a school system's policy would ordinarily be immune from personal liability for a tortious act or omission during the investigation.

In Part IV, we conclude that neither a statute nor the common law sets out the specific offense of interfering with an investigation of child abuse. Although the common law offenses of obstructing or hindering a police officer in the performance of duty or obstruction of justice could conceivably form the basis of charges, the facts that would be necessary for such charges to be brought are extremely unlikely to occur in a school board's internal personnel investigation, particularly if the school board conducts the personnel investigation within the constraints discussed in this opinion. With regard to civil sanctions, although a local school system's decision to conduct independent investigations is inconsistent with the model policy of the State Department of Education, the State Board of Education has no authority to prevent implementation of the local school system's decision, because the model State policy is not embodied in a bylaw or regulation.

In Part V, we conclude that in cases where the suspected abuser is an employee of the agency charged with responsibility for investigating reports of suspected child abuse, the investigation must be conducted by another responsible investigative agency in order to avoid a conflict of interest.

I

Investigations of Suspected Child Abuse

A. The School System's Personnel Concerns

On June 27, 1991 the Board of Education of Howard County adopted a new "Policy on Child Abuse, Sexual Abuse and Neglect." The policy acknowledges that validation of suspected child abuse or neglect is the responsibility of the Howard County Department of Social Services and the Howard County Police Department. Accordingly, the policy directs a school employee or volunteer to make an immediate oral report of suspected abuse to one of these agencies and to the school principal or the Superintendent of Schools.

However, if the report alleges that a school employee is the abuser, the policy requires "[t]he Superintendent's designee, in cooperation with responsible law enforcement authorities, [to] promptly investigate the charges against the employee and prepare a confidential report to the Superintendent." Although the intent is that the school system's investigation be done cooperatively, nevertheless the investigation is intended to be conducted by school system employees.

If, considering the results of the internal investigation, the Superintendent has "reasonable cause" to conclude that the employee engaged in acts of child abuse or sexual abuse, the Superintendent is to determine the appropriate discipline, up to and including dismissal. Suspension or dismissal of a certificated employee must follow the procedures set forth in §6-202 of the Education Article ("ED" Article).

Professional employees of a local school system unquestionably may be suspended or dismissed if they are found to have abused a student. ED §6-202 allows a county board of education to suspend or dismiss professional personnel for, among other things, "[i]mmorality" and "[m]isconduct in office including knowingly failing to report suspected child abuse in violation of §5-903 of the Family Law Article ...." ED §6-202(a)(i) and (ii).2

2
Professional personnel within the scope of ED §6-202 include teachers, principals, supervisors, assistant superintendents and "other professional assistants." ED §6-202(a). Disciplinary proceedings for non-professional employees are not addressed in statute but may be part of the negotiated agreements between employee groups and local school systems.

In addition to enumerating the causes for which a board may dismiss an employee, ED §6-202 also establishes the due process rights that the board must accord to tenured employees prior to dismissal.3 Before suspending or dismissing an individual, the county board must "send the individual a copy of the charges against him and give him an opportunity within 10 days to request a hearing." ED §6-202(a)(2). If the individual submits a timely request for a hearing, the county board must hold one, at which the individual has an opportunity to be heard, in person or by counsel, and to present witnesses. ED §6-202(a)(3). Except for assistant superintendents and higher level administrators in Baltimore City, the individual may appeal from the decision of the county board to the State Board of Education. ED §6-202(a)(4). These procedures are consistent with the due process mandate of the Fourteenth Amendment to the U.S. Constitution. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46 (1985).4

While ED §6-202 sets forth the general scheme under which teacher dismissals must be considered, it is silent about the type and quantum of evidence required before the board may dismiss the teacher. "This section does not specifically describe the procedural or substantive elements of the hearing, other than to require a prompt hearing and to grant the individual an opportunity to be heard before the board, in person or by counsel, and to bring witnesses." 64 Opinions of the Attorney General 125, 126 (1979). Nor does ED §6-202 provide guidance about the board's investigation of charges for dismissal. Finally, neither the statute nor its legislative history specifically contemplates the difficult situation in which an employee is charged with child abuse. Thus, ED §6-202 does not expressly vest local school officials with the authority to conduct an independent investigation of suspected child abuse by a school employee.

Standing alone, the absence of express authority in ED §6-202 to conduct an investigation would not preclude a school system from doing so. The statute plainly restricts school officials' authority to dismiss an employee to circumstances in which there is sufficient evidence that the

3
Professional public school employees in Maryland acquire "tenure" after two years of employment. Parker v. Board of Education, 237 F. Supp. 222 (D. Md.), aff'd 348 F.2d 464 (4th Cir. 1965). Therefore, they may be dismissed only for cause, subject to statutory due process provisions. Those provisions, however, do not apply to probationary staff, those who have worked for the school system for less than two years. ED §6-202(b).
4
Neither the statute nor the due process mandate requires comparable procedures if the board's personnel action falls short of a suspension - for example, a transfer or the imposition of leave with pay.

employee has committed one of the acts enumerated in §6-202(a) and in which the employee has been afforded an opportunity to present evidence in his or her own defense. Resetar v. State Board of Education, 284 Md. 537, 553, 399 A.2d 225 (1979). This burden on the school board, to present evidence sufficient to warrant discipline, implies the board's authority to find out whether such evidence exists. Confronted with a somewhat analogous question - whether hearings under ED §6-202 may be conducted by an appointed hearing examiner in the absence of explicit statutory authorization - the Attorney General determined that the use of hearing officers was not precluded. 64 Opinions of the Attorney General at 126.

Hence, we conclude that the Howard County Board of Education has authority under the Education Article to develop the facts that it would need to decide whether an employee should be disciplined, unless this authority has been curtailed by other law - specifically, the provisions of the Family Law Article dealing with child abuse. Indeed, as a practical matter, no school system can avoid the immediate issue whether the employee should be removed from contact with children pending further investigation.

B. Child Abuse Subtitle

1. Current statute

The General Assembly has enacted a comprehensive child abuse prevention, detection, and treatment program. This legislative plan, embodied in Subtitle 7 of Title 5 of the Family Law Article ("FL" Article), provides for civil procedures to identify and protect abused children and criminal procedures to punish child abusers. The process involves three distinct steps: the reporting of suspected abuse; an investigation of these reports; and, if abuse is verified, the provision of services, the initiation of court proceedings, or both.5

Notwithstanding any other provision of law, including any law on privileged communications, each health practitioner, police officer, educator, or human service worker acting in a professional capacity who has reason to believe that a child has been subjected to abuse is required to make an oral report, by telephone or direct communication, as soon as possible to the local DSS or the police. FL §5-704(a)(1) and

5
Maryland law also provides protection for children suspected of being neglected. However, because your questions pertain to cases where a school employee is suspected of child abuse, this opinion focuses on child abuse only.

(b)(1)(i).6 The agency to which the oral report is made must immediately notify the other agency. FL §5-704(b)(2)(i). Not later than 48 hours after the contact that caused the individual to believe that the child had been subjected to abuse, the professional must make a written report to the local DSS with a copy to the local State's Attorney. FL §5- 704(b)(1)(ii).7

Promptly after receiving a report of suspected abuse, the local DSS or the police, or both if jointly agreed on, are to make a thorough investigation of the report to protect the health, safety, and welfare of the child or children. FL §5-706(a)(1).8 Moreover, if the report alleges sexual abuse, the agencies responsible for investigating reported cases of suspected sexual abuse, including the local DSS, the police, and the local State's Attorney, are to implement "a joint investigation procedure for conducting joint investigations of sexual abuse." FL §5-706(f)(1). The joint investigation procedure must include "appropriate techniques for expediting validation of sexual abuse complaints"; include techniques designed to "decrease the potential for physical harm to the child" and "decrease any trauma experienced by the child in the investigation and prosecution of the case"; and "establish an ongoing training program for personnel involved in the investigation or prosecution of sexual abuse cases." FL §5-706(f)(2).

Maryland law requires the investigation to be both thorough and timely. Within 24 hours after receiving the report of suspected abuse,

6
"Abuse" means:
(i) the physical injury of a child by any parent or other person who has permanent or temporary custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child's health or welfare is significantly harmed or at risk of being significantly harmed; or
(ii) sexual abuse of a child, whether physical injuries are sustained or not.
(2) "Abuse" does not include, for that reason alone, providing a child with nonmedical religious remedial care and treatment recognized by State law.
FL §5-701(b)(1).
7
With certain exceptions, a person other than a health practitioner, police officer, educator, or human service worker who has reason to believe that a child has been subjected to abuse is required to make either an oral or written report to the local DSS or the police. FL §5-705.
8
On request by the local DSS, the State's Attorney assists in the investigation. FL §5-706(d).

the local DSS or the police must see the child, attempt to have an on-site interview with the child's caretaker, and decide on the safety of the child and any other children in the care or custody of the alleged abuser. FL
§5-706(b). The investigation shall include, among other things, a determination of the "nature, extent, and cause of the abuse, if any"; and, if the suspected abuse is verified, "a determination of the identity of the person or persons responsible ...." FL §5-706(c). To the extent possible, the investigation must be completed within 10 days after receipt of the first notice of suspected abuse by the local DSS or the police. FL §5-706(g)(1). The local DSS or the police must submit first their preliminary findings and later their final investigative report to the State's Attorney. FL §5-706(h) and (i).

Based on its finding and treatment plan, the local DSS must "render the appropriate services in the best interests of the child, including, when indicated, petitioning the juvenile court for appropriate relief ...." FL §5-710(a).9 If a report has been made to the State's Attorney and the State's Attorney is not satisfied with the recommendation, the State's Attorney may petition the court at that time to remove the child if the State's Attorney concludes that the child is in serious physical danger and an emergency exists. FL §5-710(b). The State's Attorney may also file criminal charges against the abuser. Article 27, §35A of the Maryland Code.

2. Legislative history

In 1963 the General Assembly enacted the first statute pertaining to the mistreatment of children. See Chapter 743, Laws of Maryland 1963. Under this act, codified at former §11A of Article 27 of the Maryland Code, any parent, adoptive parent, or other person who had permanent or temporary care or custody of a child under the age of 14 years and maliciously beat, struck, or otherwise mistreated the child to such a degree as to require medical treatment was guilty of a felony and upon conviction sentenced to not more than fifteen years in prison. Chapter 743 provided no reporting or investigation procedures.

In 1966 the General Assembly established the local DSS as the principal agency to receive and investigate reports of suspected abuse. See Chapter 221, Laws of Maryland 1966. Under this act, every "health practitioner, education, health, mental health, or social worker or law enforcement officer" who contacted, examined, attended or treated a

This relief can include commitment of the child to the local DSS and removal of the child from the parent's home. §3-820(c)(1)(ii) of the Courts Article ("CJ" Article).

child and believed, or had reason to believe, that a child had "sustained physical injury as a result of abuse" was required to make a report in the manner provided by statute. The person making the report was required to do so orally to the local DSS and, if the reporter believed or had reason to believe that immediate protection was needed, also make a report to the police. See Article 27, former §11A(c) and (d). Within 48 hours of the contact that disclosed "the possible malicious treatment or beating," the individual was required to make a written report to the local DSS and to the local State's Attorney.

Chapter 221 also implied that an agency other than the local DSS receiving a report of suspected abuse was not authorized to conduct its own investigation to determine whether the abuse had occurred. Under the law at that time, any agency that received an oral or written report of suspected abuse from a private party was required to refer it to the local DSS. Former §11A(d). If, after interviewing the private party who reported the suspected abuse, the local DSS determined that there was "probable cause" to believe that a violation had occurred, then the local DSS was required to conduct an investigation as provided by the act. The State's Attorney, the police, "or social agencies having jurisdiction" were required to assist in the investigation "[u]pon request by the local department [of social services]." Former §11A(e) (emphasis added).10 Thus, as of 1966, the law authorized only the local DSS to investigate.

In Chapter 835 of the Laws of Maryland 1973, the General Assembly for the first time authorized the investigation to be conducted by the local DSS or the police. Accordingly, Chapter 835 mandated certain professionals, including educators, to make oral reports of suspected abuse to either the local DSS or the police. The required written report was to be sent to the local DSS and a copy to the State's Attorney. Article 27, former §35A(d).11 Neither the local DSS nor the police were to proceed alone. Rather, the one to which the oral report was made was required to immediately notify the other. The local DSS and the police were not prohibited from jointly agreeing to cooperative arrangements with other agencies.

10
Chapter 221 also established for the first time the local department's responsibility, based on its findings, to render appropriate services in the best interests of the child, including, when indicated, petitioning the juvenile court on behalf of the child for the added protection that either commitment or custody would provide. Former §11A(f).
11
Former §11A had been recodified as §35A. Chapter 500, Laws of Maryland 1970.

In Chapter 296 of the Laws of Maryland 1984, the General Assembly completely revised, restated, and recodified the laws of Maryland relating to family matters by enacting the Family Law Article. As part of that revision, the General Assembly recodified in the new article the procedures relating to child abuse that formerly appeared in the criminal code. Nothing suggests that the General Assembly intended a change in the then existing investigational procedure through that revision. See Chapter 296, Revisor's Note to FL §5-903.

In the 1984 Session, the General Assembly also enacted Chapter 611, pertaining specifically to child abuse investigations. Chapter 611 reflected the General Assembly's concern for protection of the child by requiring, among other things, joint efforts among the agencies responsible for investigating child abuse.

Under Chapter 611, the local DSS, the police, and the State's Attorney within each county were required to enter into a written agreement that specified standard operating procedures for the investigation and prosecution of reported cases of child abuse. These agencies were also required to implement a procedure for conducting joint investigations of child sexual abuse. Former FL §5-905(e). Significantly, the joint investigation procedure was required to include techniques designed to "decrease any trauma experienced by the child in the investigation and prosecution of the case" and "establish a training program ... for personnel involved in the investigation and prosecution of child sexual abuse cases." Former FL §5-905(e)(2).

Chapter 611 resulted from the work of the Governor's Task Force on Child Abuse and Neglect. The Task Force's rationale for requiring joint investigations and special training in sexual abuse cases was "to assure effective responses to these situations." See Summary of Preliminary Recommendations for Legislative Action at 5 (1984). The Senate Judicial Proceedings Committee found that "many counties do not have cooperative agreements between the local Departments of Social Services and local law enforcement agencies. As a result efforts are often duplicated thereby causing more anguish to a child required to repeat accounts of abuse." The legislative intent, therefore, was "to promote cooperation between agencies responsible for the investigation and prosecution of child abuse so as to minimize the emotional and physical harm caused to the child." See Senate Judicial Proceedings Committee, Summary of Committee Report for FLB. 348 at 2 (1984).

In 1987, the General Assembly amended the Family Law Article to consolidate child abuse and child neglect provisions into one subtitle entitled "Child Abuse and Neglect" and codified as Subtitle 7 of Title 5. Chapter 635, Laws of Maryland 1987. The revision continued the requirement for certain professionals, including educators, to report both orally and in writing suspected abuse to the local DSS or the police. FL §5-704. Chapter 635 also amended the statute to require the local DSS, the police, and the State's Attorney to establish an ongoing training program for personnel involved in the investigation or prosecution of sexual abuse cases. FL §5-706(f)(2)(iii).

In 1988, the General Assembly added one more agency to those required to enter a joint agreement. Specifically, FL §5-706 now provides that the local health officer must be included in the written agreement that specifies standard operating procedures for the investigation and prosecution of reported cases of suspected abuse. See Chapter 6, Laws of Maryland 1988.

C. Analysis

The language and legislative history of the Child Abuse subtitle leave no doubt that only the local DSS and police may investigate an allegation of child abuse for the purposes of aiding the child and prosecuting the abuser. But neither the statutory language nor its history forecloses a school system's separate investigation, under a separate grant of authority, for a quite different purpose - deciding whether to discipline an employee. Indeed, the overall goal of safeguarding children against abuse is best served by a process that swiftly removes an abuser from a job involving contact with children.

We infer a number of legislative objectives from the relevant statutes: enabling school systems to make a prompt and informed judgment when deciding on disciplinary action against an employee; protecting victims of child abuse against the potential trauma of repeated questioning; and allowing criminal cases against child abusers to be developed by trained investigators and prosecuted without hindrance. The task of statutory construction is to find a way to serve all of these goals. In doing so, we are guided by the conviction that the General Assembly meant to give primacy in all respects to the child abuse investigation itself and thus has implicitly limited the otherwise permissible personnel investigation by the school system.

One overriding requirement of the Child Abuse subtitle is immediate reporting of instances of suspected abuse. Thus, under no circumstances may a school system delay reporting an incident while it conducts its own internal investigation.12

The legislative history of the subtitle also manifests a legislative concern that some victims of child abuse, especially very young children, might be further traumatized if they had to tell their story over and over again to different investigators. Furthermore, prosecution might be made more difficult if a defendant had a basis to assert that clumsy questioning led a child to embroider events. A school board's personnel investigation must be conducted so as to conform to the legislative intent about these matters. Thus, we advise that an investigator for a school board should not attempt to interview the victim of alleged abuse without the prior approval of the local DSS or the police.

More generally, we are of the view that a school system's personnel investigation should be conducted in a way that minimizes the risk of interference with the investigation to which the General Assembly has given primary attention. One can envision situations in which a school system's investigation might create unintended problems for those engaged in the investigation under the Child Abuse subtitle - if, for example, the suspect were alerted prematurely that an investigation was under way, either directly by the school system investigator or indirectly by a witness contacted by the school system. To avoid this risk, a school system conducting a personnel investigation of alleged child abuse by an employee should notify the local DSS or the police of its intention to do so and should abide by whatever limitations the primary investigative agency imposes, particularly on contacts with the alleged abuser or potential witnesses.

In addition, the school system must maintain the confidentiality of the information that it gathers. Article 88A, §6(b) generally provides that "all records and reports concerning child abuse ... are confidential

12
The Howard County Board of Education's policy properly requires immediate reporting. See Part IA above.

— " (Emphasis added.) The school system may disclose the information only under the circumstances set out in §6(b).13

Finally, a school system's conduct of a personnel hearing aimed at adjudicating the merits of an allegation of child abuse might conceivably pose a small risk of a collateral estoppel effect on a subsequent criminal prosecution, if the personnel matter were litigated and the employee prevailed. While we doubt that all of the requisite elements of collateral estoppel would be found even in this situation, we urge school systems not to press forward with a final disciplinary hearing without the concurrence of the State's Attorney responsible for any prosecution of the alleged abuser.14

II

Access to Evidence for Disciplinary Hearing

We are not aware of any legal requirement that the evidence needed to sustain a disciplinary action against an employee must be gathered by the employer, rather than obtained from an agency conducting an investigation for a different purpose. Thus, if a school system did not conduct its own investigation but instead relied on the results of the investigation by the local DSS or the police, the school system might well gain sufficient evidence indirectly to warrant dismissal of the employee. In fact, the General Assembly has provided a mechanism - albeit a cumbersome one, as we shall explain - for a school system to obtain evidence concerning an investigation of child abuse where the alleged abuser is a school employee.

Article 88A, §6(b) provides that information contained in reports or records concerning child abuse may be disclosed to "members of multidisciplinary case consultation teams, who are investigating a report of known or suspected child abuse ... or who are providing services to

13
Thus, information encompassed by Article 88A, §6(b) would ordinarily be able to be introduced into evidence at a disciplinary hearing only if the school system first obtained a court order under §6(b)(1) authorizing that disclosure. See note 17 below and accompanying text.
14
Findings in a non-criminal proceeding can give rise to collateral estoppel in a subsequent criminal prosecution, at least where the State itself is a party in the non-criminal case. See Bowling v. State, 298 Md. 396, 470 A.2d 797 (1984). The test for applying the collateral estoppel doctrine is set out in Washington Suburban Sanitary Comm'n v. TKU Associates, 281 Md. 1, 18-19, 376 A.2d 505 (1977).

a child or family that is the subject of the report." The regulations adopted pursuant to Article 88A, §6 define a multidisciplinary team as a "group of professionals which meets regularly to provide consultation and treatment planning where appropriate, on cases referred from Child Protective Services, during the investigation or continuing service phase of local department involvement." COMAR 07.02.07.17A. The local DSS is to contact appropriate "community agencies and sectors" to seek membership on a standing multidisciplinary case consultation team. COMAR 07.02.07.17B. Personnel from educational agencies are specifically included in the list of "appropriate community agencies." COMAR 07.02.07.17B.15

The fact that a school system representative on the multidisciplinary team may have access to information concerning the child abuse investigation conducted by the local DSS and the police does not end the analysis, because the authority to obtain information does not necessarily imply the authority to disclose it to others. Indeed, Article 88A, §6(b) provides that "information contained in reports or records concerning child abuse or neglect" may be disclosed only under certain circumstances to persons or agencies specified in the statute. As discussed above, one of these is "members of multidisciplinary case consultation teams, who are investigating a report of known or suspected child abuse or neglect or who are providing services to a child or family that is the subject of the report." Article 88A, §6(b)(2). However, the statute does not provide authority for members of the multidisciplinary team to disclose the confidential information contained in such reports or records to other persons or agencies.16

15 Disclosure to a school system participant in the multidisciplinary team is consistent with federal law. The Child Abuse Prevention and Treatment Act authorizes grants to the states for the purpose of developing, establishing and operating programs designed to improve "(1) the handling of child abuse cases, particularly cases of child sexual abuse, in a manner which limits additional trauma to the child victim; and (2) the investigation and prosecution of child abuse, particularly child sexual abuse." 42 U.S.C. §5106c(a) (1988).
Federal regulations adopted pursuant to the Act require a state to "provide for the prompt initiation of or appropriate investigation by a child protective agency or other properly constituted authority to substantiate the accuracy of all reports of known or suspected child abuse or neglect." 45 C.F.R. §1340.14(d) (emphasis added). Such investigations may include the use of, among other things, "consultations with other agencies ... and reviews by multidisciplinary teams." Id. (emphasis added).
16
Improper disclosure of this information is a criminal offense. Article 88A, §6(e).

Under current law, the only way for the school system to be able to introduce this information at a disciplinary hearing is to obtain, pursuant to Article 88A, §6(b)(1), a court order authorizing disclosure of the information at the hearing.17 The General Assembly may wish to consider amending Article 88A, §6 to permit limited disclosure of investigative records in proceedings under ED §6-202 or to authorize school system officials to attend interviews conducted by police officers or DSS employees. See Fossey, Child Abuse Investigations in the Public Schools, 69 Ed. Law Rep. [991] (Nov. 21, 1991).18

III

Immunity in Child Abuse Cases

FL §5-708 provides that any person who makes or participates in making a report of abuse or participates in an investigation or a resulting judicial proceeding "shall have the immunity described under §5-362 [of the Courts Article ("CJ" Article)] from civil liability or criminal penalty." CJ §5-362 describes that immunity as follows:

Any person who in good faith makes or participates in making a report of abuse or neglect under §5-704 or §5-705 of the Family Law Article or participates in an investigation or a resulting judicial proceeding is immune from any civil liability or criminal penalty that would otherwise result from making or participating in a report of abuse or neglect or participating in an investigation or a resulting judicial proceeding.19

17 In order to preserve the confidentiality of that sensitive information, the school system should seek an order providing that the hearing be open only to the parties and their representatives and that the record be sealed. Finally, the proposed order should provide that any person who further discloses the information outside of the hearing be subject to appropriate penalties.
18
Such an amendment could be drafted in conformity with confidentiality requirements of federal law. See 45 C.F.R. §1340.14(i)(3).
19
ED §6-109(a) and CJ §5-354(a)(1) together provide a separate grant of immunity to school employees who report alleged child abuse as required by FL §5-704. However, these immunity provisions do not extend to an employee's participation in an investigation.

We have no doubt that a school system conducting an internal investigation of suspected child abuse to determine whether to take disciplinary action against an employee would meet the test of "good faith." Catterton v. Coale, 84 Md. App. 337, 579 A.2d 781 (1990), cert. denied, 321 Md. 638, 584 A.2d 67 (1991).

However, CJ §5-362 specifies that immunity extends to any person who makes a report of abuse under FL §5-704 or §5-705 or participates in an investigation or resulting judicial proceeding. The implication is that the immunity is extended only to persons who follow the procedures outlined in the Child Abuse subtitle. As discussed in Part I above, although a school system may conduct an independent personnel investigation, it does so under the authority of the Education Article, not the Child Abuse subtitle. FL §5-708 offers no immunity to persons operating outside of its procedures.

Two other grants of immunity might apply, however. Under CJ §5- 353(e), employees of a school system are generally not liable individually for damages resulting from their tortious acts or omissions, if the employee "act[s] within the scope of employment."20 And under ED §6-109(b) and CJ §5-354(b), employees are generally not liable individually for actions while "participat[ing] in an employee dismissal [or] disciplinary ... proceeding ...," if the action is "[w]ithin the scope of employment."

Broadly speaking, an employee acts "within the scope of employment" if the employee "was advancing his master's interests in doing what he did at the time he did it." Rusnack v. Giant Food, Inc., 26 Md. App. 250, 265, 337 A.2d 445, cert. denied, 275 Md. 755 (1975). See also Dhanray v. Potomac Elec. Power Co., 62 Md. App. 94, 99, 488 A.2d 512 (1985). A school board employee who investigates an allegation of child abuse at the instance of a supervisor is acting in furtherance of the school board's interests.

Hence, a school system employee, acting in good faith on instructions of a supervisor, would be able to assert immunity for tortious acts or omissions in the course of an independent investigation of alleged child abuse by another board employee. The school board itself would face liability up to the limits set out in CJ §5-353(b).

20
As is usual with statutes of this kind, an employee remains liable for gross negligence and malicious actions.

IV

Liability for Interference With Child Abuse Investigations

A. Criminal

We are aware of no provision in the Family Law Article or elsewhere in the Maryland Code that imposes a criminal penalty for interference with the child abuse investigation conducted by the local DSS and the police pursuant to the Child Abuse subtitle. Under some sets of facts, the offenses of obstructing or hindering a police officer or obstructing justice might be applicable. See Cover v. State, 297 Md. 398, 466 A.2d 1276 (1983); Sibiga v. State, 65 Md. App. 69, 499 A.2d 485 (1985); Mayne v. State, 45 Md. App. 483, 414 A.2d 1 (1980). However, proving the requisite criminal intent would be extremely unlikely when the alleged interference occurred during a school system's own investigation, conducted for the legitimate purpose of pursuing potential disciplinary action against an employee.

B. Civil

The State Board of Education has statutory authority to institute legal proceedings to enjoin a county board of education from engaging in certain practices. The State Board "shall determine the elementary and secondary educational policies of this State" and "adopt bylaws, rules, and regulations for the administration of the public schools." ED §2-205(b)(1) and (c)(1). Properly adopted bylaws, rules, and regulations "have the force of law" and apply to each county (except, in some instances, to Baltimore City). ED §2-205(c)(2) and (3). The State Board is authorized to "institute legal proceedings to enforce" its bylaws, rules, and regulations. ED §2-205(d)(2).

The duties of each county board of education are enumerated in ED §4-107. These duties include determining, with the advice of the county superintendent, the educational policies of the county school system. ED §4-107(3). This determination, however, is "[s]ubject to ... the applicable bylaws, rules and regulations of the State Board." ED §4- 108(a).

The State Department of Education has issued a model Child Abuse and Neglect Policy, revised in December, 1990. The portion of the policy concerning investigations of suspected child abuse states as follows:

Validation of suspected child abuse is the responsibility of the department of social services,
assisted by the police. School personnel shall not attempt to conduct any internal investigation or an independent review of the facts.

Policy at 10 (emphasis added). Furthermore, the policy recognizes the use of a multidisciplinary team:

The local department of social services shall notify school reporting sources of the receipt of the report.
School personnel may request the local department of social services to call a multidisciplinary team meeting to share information and concerns to the extent permitted by the confidentiality statute and to coordinate planning for services to the child.
Appropriate school personnel are expected to participate in the team meetings in accordance with the procedure established between the local department of social services and local school system.

Policy at 11.

This policy, however, is merely a recommendation by the staff of the State Department of Education, which local school systems may adopt at their discretion. The policy is not an official "bylaw, rule, or regulation" of the State Board. Thus, while the policy adopted by the Howard County Board of Education on June 27, 1991, is inconsistent with the State model policy, the State Board has no basis to institute legal proceedings against the Howard County Board for such noncompliance.

V

Conflict of Interests

Federal regulations adopted pursuant to the Child Abuse Prevention and Treatment Act require certain procedures to be followed in cases where an apparent conflict of interest is involved. Specifically, "when a report of known or suspected child abuse involves the acts or omissions of the agency, institution, or facility to which the report would ordinarily be made, a different properly constituted authority must receive and investigate the report and take appropriate protective and corrective action." 45 C.F.R. §1340.14(e) (emphasis added).

Although no Maryland statute discusses conflict of interest concerning investigations of suspected child abuse, regulations adopted pursuant to the Child Abuse subtitle provide for special procedures to be followed so as to avoid the appearance of conflict "[w]hen a report of abuse involves acts of an employee of the State or of a local department in the performance of the employee's duties ...." COMAR 07.02.07.06D.

No statute or regulation precludes a school system from designating its own employees to conduct a personnel investigation of a fellow employee. If such an internal investigation is thought to pose an actual or apparent conflict of interest, the General Assembly is free, of course, to mandate alternative procedures.

VI

Conclusion

In summary, it is our opinion that:

1. A county board of education has authority to implement a policy authorizing a local school system to conduct an internal personnel investigation, independent of the one conducted by the local DSS or the police, if the suspected abuser is a school employee. However, the personnel investigation must not take place until after the alleged abuse has been reported and is subject to whatever limitations are imposed by the local DSS or the police. Information about the alleged abuse obtained during the internal investigation is subject to the confidentiality requirements of Article 88, §6(b).

2. In accordance with ED §6-202, tenured school system employees may be suspended or dismissed for committing child abuse. A county superintendent of schools need not conduct an internal investigation of the charges in order to introduce evidence at the administrative hearing. Rather, evidence obtained by school personnel in their capacity as members of a multidisciplinary team, properly authenticated, can be introduced at the hearing. Under current law, however, the superintendent must get a court order authorizing disclosure of this confidential information in the administrative forum.

3. Maryland law provides only limited immunity for a county board of education that conducts a personnel investigation into allegations of child abuse by one of its employees. The employees of the local board carrying out the investigation, however, would be immune from personal liability.

4. Although the Family Law Article provides no penalties for interference with a child abuse investigation, under certain circumstances a person could be charged with the common law offenses of obstructing a police officer in the performance of duty or obstruction of justice. These circumstances are most unlikely to arise during a school system's personnel investigation, however. With regard to civil sanctions, the State Board of Education has no legal authority to require local school boards to adhere to a model State policy, not embodied in bylaw or regulation, providing that a local school system is not to conduct an internal investigation of child abuse.

5. In child abuse cases where a report of suspected abuse alleges that the abuser is an employee of an agency charged with responsibility for investigating the report, the other responsible investigative agency must conduct the investigation in accordance with procedures designed to avoid the conflict of interest.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Donna R. Heller
Assistant Attorney General