Dear Legal Mailbag:

Covid-19 certainly has changed our day-to-day lives, and its impact is far-reaching and still unknown. The stress and pressure everyone is under are bubbling up to the surface. I say that because a teacher just came to my office (where I serve as principal of a middle school) and told me that two months ago he was arrested for DUI. It was not in the town we work in. He has yet to go to court, but he is anticipating losing his license for forty-five days, taking classes, and paying fines. Central Office is unaware of this, and he’d prefer they not know. I know it’s 2020, but does he have a right to privacy here? We are still innocent until proven guilty, yes? Where does my obligation of support end for this employee (who is wonderful by the way) and my obligation to report unlawful activities begin? Or vice versa for that matter?

Someone Take the Wheel Please

Dear Someone:

Your humanity is evident as you express sympathy and concern for this employee. Legal Mailbag must advise you, however, that a public employee accused of a crime has no privacy interest that justifies withholding that information from the employer. You can best support this employee by helping him come clean and let Central Office know.

Legal Mailbag starts with the observation that an arrest and impending criminal prosecution of a public employee is information in which the employer has a legitimate interest. While there is a presumption of innocence in a criminal prosecution, the arrest and prosecution are based on a belief by the authorities that the employee has engaged in wrongdoing. That possibility presents a possible risk in the workplace. For example, if a custodian were arrested and under prosecution for sexual assault, a reasonable employer would want to investigate the situation and possibly suspend the employee until a judicial determination is made. Indeed, a failure to do so could result in liability if the accused then harmed someone else.

Not every arrest so clearly invites precautionary measures, but different arrests raise different concerns. Does this employee ever transport students? Are there observable behaviors that should be considered in conjunction with the arrest? What if parents learn of the arrest and start a social media campaign against the employee? In short, Legal Mailbag believes that an employee who is arrested has an affirmative duty to notify his or her employer. Such notification should not automatically result in any discipline or other employer action. However, such notification gives the employer an opportunity to review the situation and take reasonable steps if appropriate. Such reasonable steps may include administrative leave, a psychological evaluation to determine fitness for duty, preparation of a press release, or no action at all. By contrast, an employer that is not notified of an arrest does not have the opportunity to consider the facts and take action as may be appropriate.

Finally, arrests for DUI occur from time to time. In the first instance, such arrests do not generally result in discipline, and, on the facts you present, Legal Mailbag does not see the need for Central Office to suspend or terminate the employee. However, it would be appropriate to warn the employee in writing never to put himself in this situation again. A second DUI is a very different thing. The law treats such a second offense as a felony, and commission of a felony can result in the termination of one’s employment.

Originally appeared in the CAS Weekly Newsletter.