Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
Last year, I received a disturbing letter. It was anonymous and unsigned. But in typewriting, it read:
CAUTION! Tom Teacher is doing drugs. I think that you should watch him very carefully. I am glad that my children do not have him as a teacher. Tom is a danger to himself and others. Take care and beware!
As you can imagine, I didn’t quite know what to do about this anonymous letter, so I just put it in Tom’s file and moved on. To be sure, I did keep an eye out, but Tom seemed perfectly normal, so I didn’t see the need to involve the police or otherwise investigate the allegations.
Last week, Tom came in to review his personnel file and he was fit to be tied when he saw the anonymous letter. He demanded that I immediately remove the letter from his file and that I apologize for my “egregious misjudgment” in the first place. I don’t mind apologizing when I mess up, but I don’t think that an apology is warranted here, do you? Moreover, the letter specifically referred to Tom by name, and I can’t think of a better place to file it than in Tom’s personnel file. Besides, it is not Tom’s file; it is my file on Tom. Am I missing something?
I leave to you whether you wish to apologize. But your handling of the anonymous letter did not show good judgment. Inclusion of documents in a teacher’s personnel file reflects a determination that the documents are relevant to that teacher’s employment. The anonymous letter here, however, is not relevant to the teacher’s employment because you have not investigated the allegations made by the anonymous writer, and you have made no finding of misconduct on Tom’s part. Accordingly, it was unfair to include the letter in, as you say, your file on Tom.
The handling of anonymous complaints presents challenges to school administrators. On the one hand, an anonymous complaint may simply reflect a cowardly and unfair attempt to retaliate against a teacher. On the other, some anonymous complaints may bring a problem to your attention. Therefore, Legal Mailbag has the following recommendations.
First, determine whether the anonymous complaint gives you enough facts to investigate. Here, the letter provides no facts to support the allegation that Tom is involved with drugs, and there isn’t really anything to investigate. An anonymous allegation, absent some other facts, does not provide reasonable cause to intrude into Tom’s privacy interests, such as requiring drug testing. However, even in such situations, you should keep your eyes open to see whether Tom’s conduct causes you any concerns, and then follow up on those concerns, rather than the anonymous complaint.
Second, if you are able to investigate because the anonymous complaint provides you specific information, do so discreetly. It is important not to propagate baseless allegations by repeating them in an investigation. Be circumspect as you decide whom to question and what you say.
Third, absent very specific allegations that can be easily investigated (e.g., “there is money missing from the student activity fund”), the best approach to an anonymous allegation is simply to keep your eyes open and decide whether any observable behaviors or other facts warrant further investigation.
Fourth, inform the subject (here, Tom Teacher) of the anonymous complaint unless you have decided to investigate and have a strategic reason to hold back on sharing the complaint. If someone had made an anonymous complaint about you, presumably you would want to know about it. Similarly, teachers and other employees are entitled to the same courtesy unless you need to withhold that information pending investigation (such as when an employee on notice could destroy evidence).
Finally, as noted above, an anonymous complaint should never be placed in the personnel file. Unless and until disciplinary action is warranted after investigation and imposed, such material has no place in a personnel file.