1. Legal Considerations for Workforce Development Leaders
Q. Shanté Martin
NCCCS General Counsel
29 September 2016

2. Overview
I will touch on a few topics of which all community college leaders should be aware. Familiarity with these topics will put supervisors and leaders in the best position to defend themselves when facing legal challenges. The issues I will address are:
Personnel issues: Disciplinary issues, employee evaluations, and personnel file issues
FERPA issues: Education record definition, Student rights, Student consent

3. Personnel Considerations

4. Personnel Considerations Agency Law
All supervisors and managers are “agents” of the college
As an agent of the college, your actions are the college’s action, and your inaction is the college’s inaction.

5. Personnel Considerations Disciplinary issues
Supervisors must embody consistency, forthrightness, superb documentation, and a commitment to integrity regarding disciplinary issues.
Supervisors must have the forthrightness to address disciplinary issues head on. Ignoring disciplinary problems don’t make them go away; it only causes the problem to fester.
Any time there is a problem or a failure to meet work expectations, supervisors should address it every time and document it every time.

6. Personnel Considerations Disciplinary issues cont’d
While college employees do not enjoy protections of the State Personnel Act, supervisors should still adhere to the principles of coaching and discussion of problems with employees to maximize the effectiveness of the work environment.
Ensure that you follow the college’s disciplinary policy all the time for every employee you supervise
Supervisors should treat similar issues the same no matter who the employee is. This will aid in preventing discrimination liability.

7. Personnel Considerations Employee evaluation
It is imperative that you write your true thoughts on evaluation forms. If you are afraid to honestly evaluate employees whom you supervise, you are not fulfilling your supervisory responsibilities.
Be prepared to support every statement you make on the evaluation. It is a good idea to keep a running record of accomplishments and areas of concern. If you have a running record, it is much easier to support your evaluation.
Don’t let any comments on the evaluation be a surprise to the employee.

8. Personnel Considerations Employee grievance process
When supervisors are faced with a grievance, having been consistent, keeping good documentation, being prepared, being committed to integrity, and being forthright puts the supervisor and the college in a good position to defend any decisions or actions he or she has made.

9. Personnel Considerations Employee personnel file
N.C.G.S. § 115D-27 provides that “a personnel file consists of any information gathered by the board of trustees which employs an individual, previously employed an individual, or considered an individual’s application for employment, and which information relates to the individual’s application, selection or nonselection, promotion, demotion, transfer, leave, salary, suspension, performance evaluation, disciplinary action, or termination of employment wherever located or in whatever form.”

10. Personnel Considerations Employee personnel file cont’d
Several community college policies dictate that employees’ personnel files are located in a specific office such as the Personnel or Human Resources Office.
HOWEVER, although your college policy may dictate that the personnel records are maintained in a specific office, they are really maintained all over campus in various formats. The notes you keep on employees on your computer or in your desk that are never turned in to Human Resources constitute part of that employees’ personnel file. The drafts of evaluations constitutes that employees’ personnel file.
Be aware that the personnel file is located anywhere in whatever form.

11. Family Education Rights and Privacy Act (FERPA)

12. Outline What is the purpose of FERPA? Key Definitions
Releasing Information – The Who, What, and When
Annual FERPA Notice
Best Practices to Ensure Compliance
Practical Application

13. Purpose of FERPA
For community colleges, the main purpose of FERPA is to protect the privacy of “a student who has reached 18 years of age or is attending an institution of postsecondary education.”

14. FERPA -- Key Definitions

15. FERPA -- Key Definitions - 34 CFR 99.3
Attendance –
Attendance includes, but is not limited to--
(a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and
(b) The period during which a person is working under a work-study program.

16. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Directory Information –
Information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

17. FERPA -- Key Definitions - 34 CFR 99.3 Directory Information cont’d
Examples of directory information:
Student’s name & address
Telephone &
Photograph
Date and Place of Birth
Field of study & Grade level
Enrollment Status
Participation in officially recognized sports & activities
Dates of Attendance
Height and weight of athletes
Degrees, honors & awards
Most recently attended institution

18. FERPA -- Key Definitions - 34 CFR 99
FERPA -- Key Definitions - 34 CFR 99.3 cont’d Directory Information cont’d
Directory information does not include a student's-- (1) Social security number; or (2) Student identification (ID) number if the identifier can be used to gain access to education records without one or more additional factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user

19. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Important notes about Directory Information:
Colleges have the discretion to determine what information constitutes directory information as long as it complies with the definition of directory information.
Colleges must be sure to include what constitutes directory information in its annual FERPA Notice.

20. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Important notes about Directory Information cont’d:
Students have a right to opt out of the directory information, and colleges should be sure to have a proper method to keep up with students who have opted out so as not to include that student’s information in a disclosure.

21. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Disclosure –
To permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

22. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Education Records –
Records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

23. FERPA -- Key Definitions – 34 CFR 99.3 cont’d
Education records include:
Demographic Information Class Schedules
Admission Records Printed Class Lists
Grades Graded Test Papers
Disciplinary Records Medical Records

24. FERPA -- Key Definitions - 34 CFR 99.3 cont’d Education Records cont’d
Education record does not include:
(1) Records kept in sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except temporary substitute for maker of the record.
(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of § 99.8.

25. FERPA -- Key Definitions - 34 CFR 99
FERPA -- Key Definitions - 34 CFR 99.3 cont’d Education Record Does Not Include cont’d
(3) Records relating to an individual who is employed by the college, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual as an employee; and
(C) Are not available for use for any other purpose.
Records relating to an individual in attendance at the college who is employed as a result of his or her status as a student ARE education records

26. FERPA -- Key Definitions - 34 CFR 99
FERPA -- Key Definitions - 34 CFR 99.3 cont’d Education Record Does Not Include cont’d
(4)Treatment records on an eligible student that are:
(i) Made or maintained by a physician, psychiatrist,
psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of the student; and
(iii) Disclosed only to individuals providing the treatment.
“Treatment” does not include remedial educational activities or activities that are part of the program of instruction at the college

27. FERPA -- Key Definitions - 34 CFR 99
FERPA -- Key Definitions - 34 CFR 99.3 cont’d Education Record Does Not Include cont’d
(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.
(6)Grades on peer-graded papers BEFORE they are collected and recorded by a teacher.

28. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Eligible Student –
Eligible student means a student who has reached 18 years of age OR is attending an institution of postsecondary education.

29. FERPA -- Key Definitions - 34 CFR 99.7
Legitimate Educational Interest –
If the college discloses personally identifiable information from an education record without the student’s consent pursuant to FERPA, the college MUST specify what constitutes a legitimate educational interest.

30. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Personally Identifiable Information –
Includes, but is not limited to--
(a) Student's name;
(b) Name of student's parent or other family members;
(c) Address of student or student's family;
(d) Personal identifier, such as the student's social security number, student number, or biometric record;

31. FERPA -- Key Definitions - 34 CFR 99
FERPA -- Key Definitions - 34 CFR 99.3 cont’d Personally identifiable information info. cont’d
(e) Indirect identifiers, such as student's date of birth, place of birth, and mother's maiden name; (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

32. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Record –
Any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

33. FERPA -- Key Definitions - 34 CFR 99.31 cont’d
School official – In addition to college employees, a contractor, consultant, volunteer, or other party to whom a college has outsourced institutional services or functions may be considered a school official ONLY IF the outside party—
(1) Performs institutional service/function for which the agency or institution would otherwise use employees;
(2) Is under the direct control of the college with respect to the use and maintenance of education records; and
(3) Is subject to the requirements of § 99.33(a) governing the use and redisclosure of personally identifiable information from education records.

34. FERPA -- Key Definitions - 34 CFR 99.31 cont’d
School official cont’d – One requirement for a contractor, consultant, volunteer, or other party to whom a college has outsourced institutional services or functions to be considered a school is if the outside party is under the direct control of the college with respect to the use and maintenance of education records.

35. FERPA -- Key Definitions - 34 CFR 99.3 cont’d
Student –
Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

36. FERPA -- Releasing Information – The Who, What, and When

37. FERPA -- Releasing Information - 34 CFR 99.31
The general rule is that personally identifiable information can only be disclosed with the eligible student’s prior signed and dated consent. However, there are exceptions:

38. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
School officials
Disclosure to school officials who the college has designated as having a legitimate educational interest. The college shall ensure that a particular school official only has access to the information that is within that particular school official’s legitimate educational interest.

39. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
School officials of another school
The college may disclose to officials of another school, school system, or postsecondary institution where the student seeks/intends to enroll or where student is currently enrolled as long as disclosure is related to enrollment or transfer.

40. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Authorized representatives of
U. S. Comptroller General
U.S. Attorney General
Secretary of the Department of Education
State and local educational authorities

41. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Financial aid connection if necessary for
Aid eligibility
Amount of aid
Conditions for the aid
Enforcement of terms and conditions of aid

42. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Agencies conducting studies for, or on behalf of educational agencies or institutions to:
Develop, validate, or administer predictive tests
Administer student aid programs
Improve instruction

43. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
When disclosing personally identifiable information for study purposes, MUST do the following:
Study limits access to PII to individuals in organization with legitimate interest in the information
Information destroyed when no longer needed for study purposes AND
Written contract entered into that
Specifies purpose, scope, and duration
Requires organization to limit use of PII to study purposes expressed in written agreement
Specifies that only individuals with legitimate interest in PII can have access to PII
Requires organization to destroy PII when no longer needed for study purposes and time period for information to be destroyed

44. Accrediting agencies for accrediting purposes
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Accrediting agencies for accrediting purposes

45. Parents of a dependent student as defined by the Internal Revenue Code
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Parents of a dependent student as defined by the Internal Revenue Code

46. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
To comply with judicial order or lawfully issued subpoena
MUST take reasonable steps to notify eligible student prior to disclosure so student can seek protective action UNLESS
Federal grand jury subpoena & court orders subpoena content protected
Subpoena issued for law enforcement purposes & court orders subpoena existence or contents or information provided in response to subpoena be protected
US Attorney General investigation or prosecution related to terrorism
Without a subpoena or court order, the college may disclose information to a court in response to eligible student lawsuit against the college for the college to defend itself or to support the college’s legal action against an eligible student

47. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Health or safety emergency
College can disclose to any appropriate person if knowledge of information is necessary to protect the health or safety of the student or other person ONLY after college makes determination that there is articulable and significant health or safety threat to anyone

48. FERPA -- Releasing Information - 34 CFR 99
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Health or safety emergency cont’d
Appropriate people include student’s parents, school officials with legitimate educational interests, & officials at other schools with legitimate educational interests
College can evaluate all of the circumstances pertaining to the health or safety threat to determine who is appropriate

49. Health or safety emergency cont’d
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Health or safety emergency cont’d
College permitted to include disciplinary action taken in response to conduct posing significant risk to safety of college community in educational record

50. College designated directory information
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
College designated directory information
Directory information exception is only applicable if the college complies with the requirements in 34 CFR § 99.37:
Types of PII college has designated as directory information
Eligible student’s right to refuse information being directory information
Time period eligible student has to notify college of decision to refuse information being directory

51. Disclosure of final results of disciplinary action to victim
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
Disclosure of final results of disciplinary action to victim
Must be victim of alleged perpetrator of violent crime or non-forcible sex offense

52. De-identified records
FERPA -- Releasing Information - 34 CFR Exceptions to prior consent
De-identified records
Records with PII and all potential links to PII removed

53. FERPA -- Annual FERPA Notice

54. FERPA -- Annual FERPA Notice - 34 CFR 99.7
Colleges MUST notify eligible students currently in attendance of their rights under FERPA every year

55. FERPA -- Annual FERPA Notice - 34 CFR 99.7
Components of Annual FERPA Notice:
Notification of eligible students’ right to:
Inspect & review education record
Seek amendment to education record for inaccuracy, misleading information, or privacy violation
Consent to disclosures except for statutory exceptions to consent
File complaint with Department of Education for alleged college failure to comply with FERPA

56. FERPA -- Annual FERPA Notice - 34 CFR 99.7
Components of Annual FERPA Notice cont’d:
Procedure for exercising right to inspect and review education records
Procedure to request amendment of records
Specification for who constitutes school official if college discloses to school officials
Specification of what constitutes legitimate educational interest if college discloses to school officials
Specification of what the college has designated as directory information

57. FERPA -- Annual FERPA Notice - 34 CFR 99.7
College may provide annual FERPA notice by any means reasonably likely to inform eligible students of their rights
College must be sure to effectively notify disabled eligible students

58. FERPA -- Best Practices
Best Practices to Ensure Compliance:
Professional development on FERPA for ALL employees
Have some type of FERPA awareness events or activities to heighten the need for everyone to be in compliance with FERPA
Help students understand what information is directory – above and beyond the annual FERPA notice

59. FERPA -- Practical Application
Application of personally identifiable information and the “reasonable person in the school community” standard:
It might be well known among students, teachers, administrators, parents, volunteers, or others at the college that a particular student was caught bringing a gun to class last month but generally unknown in the town where the college is located. Here, the college is not permitted to disclose that a college student was suspended for bringing a gun to class last month, even though a reasonable person in the community where the college is located would not be able to identify the student, because a reasonable person in the college would be able to identify the student.

60. FERPA -- Practical Application
Illustration of requirement to use outside parties to perform functions the college would use its own employees to perform: A college may disclose education records without consent under this provision to an outside party retained to provide enrollment verification services to student loan holders because the institution would otherwise have to use its own employees to conduct the required verifications. In contrast, a college may not use this provision to disclose education records, without consent, to a financial institution or insurance company that provides a good student discount on its services and needs students’ ID numbers and grades to verify an individual’s eligibility, even if the institution enters into a contract with these companies to provide the student discount.

61. FERPA -- Practical Application
Prior to disclosing PII, be sure to cross check the “opt out” list of students first.

62. FERPA -- Practical Application
If your college receives a subpoena, allow your legal counsel to review the subpoena before complying with it. Often times, subpoenas are improperly issued.

63. Questions?