Legal Talk Maryland 013 | Defense Against False Accusations Transcript

This is Legal Talk Maryland, hosted by the Maryland Law Firm of Kahn, Smith & Collins, the only legal podcast focused on the issues facing ordinary people in the State of Maryland.

Kahn, Smith & Collins, has been representing working people and labor organizations in the State of Maryland for twenty years, and can be found on the web at kahnsmith.com.

Andy:  Welcome to Episode 13 of Legal Talk Maryland, I’m Andy Spicer of razegroup.com and I’m joined again today by Keith Zimmerman of Kahn, Smith & Collins, our host for this podcast.  Keith focuses his practice in the representation of unions and employees at Kahn, Smith & Collins, and in this episode we’re going to talk about his work representing individuals who are falsely accused.  So Keith, I know child abuse accusations fall into this.  What other sorts of things are we going to be talking about in terms of false accusations?

Keith:   Mostly misconduct in the workplace where an individual may be accused of some sort of impropriety, hitting a child but not causing any injury to a child, or using improper language in the workplace, things along those lines.

Andy:  Keith, when these folks are accused, I guess the assumption going in is that they’re falsely accused, and of course you’re not trying facts when you take a case, but that’s the assumption going in.  These accusations cause significant impact to their lives.

Keith:   Absolutely, these kinds of accusations can come out in the workplace, where an individual is accused of doing something inappropriate with either another employee or in the school setting, where a teacher may be accused of committing either physical or actually there are situations where they’re charged or accused of sexual improprieties with a student.

These kinds of accusations also come up in family settings, in divorce situations, and even in families where relatives are having difficulties with each other.  Perhaps an aunt or an uncle could accuse their niece or nephew of some impropriety with their child.

Andy:  So you’re typically seeing most of these cases as they relate to the workplace, but there are also personal cases as well, and there’s an impact there. How do they typically come to you?  What happens and what’s the general timeline for how this goes?

Keith:   Most of the time these cases are referred to us through unions that we represent, and they mostly arise in the situation of the public school setting, sometimes in the private school setting, where an individual receives a phone call from an investigator of the local Department of Social Services, who calls them up and says they want to meet with them.

And our first piece of advice when we receive that phone call is to tell that individual not to meet with the investigator from the Department of Social Services without counsel because as we all know; anything you say can and will be used against you, whether it’s in a court of law or whether it’s an administrative proceeding.

Andy:  Are most of the cases that you’re getting, are you dealing with them from an administrative point of view, or is this a criminal defense as well?

Keith:   These cases mostly are generated in the administrative field which is the civil side of law, as opposed to criminal law, but on occasion we do see cases where the State’s Attorney’s Office is conducting an investigation, or the police are conducting an investigation over the same set of allegations.

For example, if a child says that they were smacked in the face by their teacher, there are several areas of the law that come into play.  The local Department of Social Services may investigate.  The police may investigate.  The employer may investigate.  And the office of the State’s Attorney may investigate, depending on what the allegation is, and who is being accused.

What I mean by that is if the individual is an educator being accused of child abuse, in the criminal arena, no charges can be filed against the teacher unless the State’s Attorney’s Office conducts its own independent investigation, regardless of what the police have done and regardless of whether a person has gone to a local court to fill out an application for statement of charges.

Andy:  If I’m hearing you correctly, somehow there’s a difference if you’re an educator than if you’re someone that’s part of the general population.  What causes that?  Is there some law that was passed or some rules?

Keith:   Yes, there is a law, and that law covers not only educators, it covers police, and it covers firefighters, and paramedics.

Andy:  It sounds like that law speaks to the crux of the issue here, which is those people by the nature of their job put themselves in “harm’s way” for these types of accusations.

Keith:   That’s absolutely correct, and that’s why that law was enacted, in order to protect these public servants who are falsely accused of committing some impropriety with the individuals that they are required to deal with day-to-day in their employment.

Andy:  Is that a Maryland specific law, or is that something that’s at the federal level?  Where does that come from?

Keith:   In Maryland, we have a specific statute that covers this for educators, police, firefighters, and paramedics.

Andy:  How well aware of the rules and the process are most of the union members that this is covering?

Keith:   I’m not sure that they are well enough aware that they don’t need counsel.  In these types of situations, it’s absolutely necessary for an individual to have counsel and to not speak to anyone from any governmental agency, be it the local Department of Social Services, the police, or the State’s Attorney without counsel.

Andy:  Typically, do the unions help with legal representation?  What sorts of benefits are available for these folks?

Keith:   That would depend on the union of which the individual is a member.  Certain unions have insurance that helps pay for the legal services.  Other unions have panels of lawyers that they will refer their members too, and more likely than not, the individual can receive legal services at a reduced rate because they’re being referred to that attorney by their union.

Andy:  These cases can get pretty pricey if they drag on for a while, right?

Keith:   Yes, I would guess that the average working person would have a lot of difficulty having to pay for representation in a serious allegation along the lines of an allegation of a sexual impropriety with someone that the individual comes into contact with in the workplace.

Andy:  Which is why the unions play such a vital role in all of this, in terms of offering some common protection and group benefits, I guess.  What does the life look like for a person who wakes up one day and finds himself accused of this?  What happens to them in terms of their job?  What happens immediately to them when this happens?

Keith:   It would depend on where they work.  Generally in the public school setting, and many times in the private school setting, the employer will place the person on a type of suspension which they call “administrative leave.”  In many circumstances that is leave with pay, pending the investigation by the local Department of Social Services.  That’s on the legal side.

On the personal side, quite frankly it’s horrible.  The person is waiting and this can take many times at least two months for the local Department of Social Services to conduct its investigation and to come up with its finding.  During that time period, our clients are certainly emotionally suffering as a result of this.

Andy:  Clearly it has an impact on their reputation, and I guess on future job opportunities and that sort of thing.  They need to be really careful how they handle things, right from the beginning.

Keith:   Absolutely.  In the child abuse investigation that’s conducted by the local Department of Social Services, it is absolutely critical for a person’s work life and reputation to have the case resolved with a finding of what is called “ruled out child abuse.”  When child abuse is ruled out it means no child abuse occurred, and the local Department of Social Services must expunge, which means wipe out the record concerning that individual who had been falsely accused and they must do that within 120 days of closing the investigation, so long as the individual hasn’t been accused of anything else during that 120 days.

Andy:  When you say expunged, at that point we’re talking really gone.  It should not be discoverable by anybody for any purpose from that point on?

Keith:   It should not. But again that is only one area of the law, or one aspect of these false allegations. Even if a local Department of Social Services investigation results with a finding of “ruled out child abuse,” the employer has the right to conduct its own investigation, and may feel that the behavior was still improper under its rules and regulations.

For instance, I believe I mentioned earlier the situation where a teacher would slap a child in the face.  If they leave no mark or there is no injury to the child, more likely than not the finding of Social Services at the end will be “ruled out child abuse.”  At the same time, a public or private school employer will not stand for its employees, teachers or aides, slapping a child in the face, and they may proceed with their own investigation and then take disciplinary action against the individual.

Andy:  Do you often see cases where children or parents of children are using these allegations as a lever to get something or to deal with some other disciplinary issue?  What’s your experience with that?

Keith:   I see it from both the parent and/or the child.  Many times children make up these accusations to deflect, or misdirect, or redirect their parents from the child’s own either bad behavior in school, or the fact that they’re not doing well in school with their grades.  Instead of dealing with their own problem, they will say “Ms. So-and-so” or “Mr. So-and-so felt my behind today.”  And low and behold that becomes their parents’ focus and the parent doesn’t look at or is not paying attention to what is going on with the child’s education.

We also see the situation arise, quite frankly, in family law cases, in divorce situations, where one spouse is trying to obtain leverage or get advantage over another spouse, and they will quite horribly use their child and have that child make an accusation.

Andy:  That’s really the crux of this; we certainly are not in any way looking to defend actual cases of child abuse, but clearly there are a number of these instances where peoples’ lives and careers can be ruined by accusations that are really just not true.

Keith:   Correct.

Andy:  In a lot of the episodes that we’ve done up until now, we talked through where to get a lawyer involved and where it makes sense and where it doesn’t.  But it seems like on this topic specifically, there’s just too much at stake to risk going it alone and not having good representation.  Is that fair?

Keith:   That’s very fair and I can’t over emphasize how important it is for an individual who is accused in this fashion to obtain a lawyer, immediately, and to not speak with anyone from any governmental agency about the accusation until they’ve obtained counsel and then counsel can help them choose whether to speak with anyone from a governmental agency with counsel present.

Andy:  What about any conversations with the employer or parent of the child, is it the same recommendation there?

Keith:   Absolutely the same recommendation because again, any statement you make can be used against you and it doesn’t matter whether you’re saying it to the police, or you’re saying it to your next-door neighbor.

Andy:  I’m sure that when someone’s accused of this sort of thing, the initial reaction is “Wait a minute!  Let me explain!”  It’s that sort of defensive posture because of course it’s a horrible thing to be accused of.

Keith:   We see that quite often.  It’s part of the job of the professional, of the lawyer to control the situation so that the individual receives the representation that they need, and that their rights are protected in these circumstances.

Andy:  That’s great, and I think one of the great things about doing these podcasts is to give information to people before they end up in those circumstances.  Hopefully, whether they’re a union employee or not, the people that are in a position to have these sorts of allegations, it allows them to get the information and understand that if they are ever in that position they really need help.

Keith:   Certainly, but it’s never too late.  There are appeal rights, especially in the arena of social services’ findings.  If they make a finding of “indicated child abuse,” or even “unsubstantiated child abuse,” the individual has a right to appeal that finding and have a hearing before an administrative law judge.  That’s very, very important and I can’t over emphasize, especially with regard to the finding of unsubstantiated because the word unsubstantiated makes it sound like the investigator found nothing.

That’s not true.  If an investigation results in a finding of unsubstantiated, an individual’s name will be associated with a file on a child abuse registry for a period of time.  If the finding is indicated, the person’s name will be placed on a central registry of child abusers for the rest of their life.  So these appeals, it’s very important to not give up when a finding like that is made, and to obtain counsel so that your appeal rights can be exercised.

Andy:  That’s great information.  Okay, hopefully everyone that’s listened sort of has a feel for that and knows what they should do if they find themself in that circumstance and hopefully they won’t.  Anything else that we ought to cover on that?

Keith:   I think that about wraps that up.

Andy:  Okay, thank you for all the information.

Keith:   You’re welcome.

Andy:  Well thanks for listening.  And that’s it for this episode of Legal Talk Maryland.  Please join us next time and until then, you can find us on the web at kahnsmith.com.

As always, none of the content of this program should be considered legal advice.  Please seek an attorney for specific legal guidance relating to your individual circumstances.  This podcast does not create an attorney/client relationship between Kahn, Smith & Collins and any individual.

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