MUSD leaders won't face prosecution - The Explorer: Import

MUSD leaders won't face prosecution

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Posted: Tuesday, May 4, 2004 11:00 pm | Updated: 7:48 am, Thu Mar 24, 2011.

No employees of Marana Unified School District will be arrested or cited for the way a school bus driver's alleged molestation of a 10-year-old girl in May of 2003 was reported.

An ongoing lawsuit by the girl's family and the resulting investigation by Arizona Department of Public Safety, though, have caused the district to re-examine the way it teaches its employees to report any situation that may endanger a child, district Superintendent Rick Lesko said.

John Barber, the department's investigator of issues related to school buses in Southern Arizona, opened an investigation in March and said he might charge one or more district employees with a second degree misdemeanor, which carries penalties of up to four months in jail or up to $750, for failing to immediately report the alleged molestation to law enforcement.

The district waited three days to notify the Pima County Sheriff's Department, after interviewing key witnesses and interviewing and asking for the resignation of the accused bus driver.

Last week, the Pima County Attorney's Office refused to prosecute the case, saying there was no violation of the law.

"Based on that, there was no crime committed in our view," said David Burkman, the chief criminal prosecutor, who reviewed the case.

Barber said the case would have been prosecutable as a felony under a newer version of the law, which carries a heavier penalty and uses more-precise language, and was in the process of being adopted when, in May of 2003, the bus driver was accused of tickling a Thornydale Elementary School student roughly in her belly area, putting his hand underneath her shirt and touching her buttocks.

The older version of the law stated that any person responsible for the care or treatment of a minor who has "enough reason to believe" that a minor is or has been the victim of abuse must report "forthwith" to a peace officer or to Child Protective Services.

The new law clarifies that such a person should "immediately" report, and that only "reasonable belief" is needed.

"As the law is written now, it's a prosecutable case," Barber said. "As it was written then, it is not."

Barber also did not cite the district for failing to notify the Department of Public Safety for six months that the school bus driver in question had resigned, and then for failing to say why the driver resigned.

Because the district didn't provide that information, Barber said the department could not immediately suspend the driver's school bus driving certificate, and "nothing would have stopped this bus driver from going and working for another school district" as long as he had a "good certificate."

Barber said there was uncertainty among some district officials as to whether the girl's allegations of molestation constituted an "injury" that needed to be reported to the DPS.

Lesko, who was read his Miranda rights during the investigation along with district Transportation Supervisor Sharon Woolridge and Thornydale Principal Lynette Brunderman, said the lawsuit and investigation have caused the district to examine its reporting procedures.

"I do believe all of these incidents have caused us to get more training, to try to understand the law better, and to make sure we do what needs to be done to the letter of the law at this point in time," he said.

The district's lawyers have instructed school principals and district-level staff that "immediately" means immediately - "that we don't do any type of surface investigation or cursory glance," Lesko said, "that we're going to report it, period, and let the people the report is made to do the work."

The district's Leadership Academy in June will include at least one hour for further clarifying the reporting procedure by addressing the "what if" questions of the principals, assistant principals, program directors, teachers representatives and other participants, Lesko said.

"Anything that has to do with kids does have a sense of urgency but in the past we were able to at least take a surface look to see if there's validity," Lesko said. "The statutes have changed, the times have changed, and we've changed with them."

Barber said Lesko cooperated fully with his investigation.

"The superintendent's office has not tried to hide anything or make less of anything that occurred," he said. "They understand there were some problems, and I'm sure they will address them."

The investigation is finished, but the district and the bus driver who was accused by a Thornydale student of molestation are still defendants in a lawsuit brought by the student's family.

On March 18, the bus driver's lawyer filed a motion for the court to dismiss all charges against him because only the district - not he, personally - was served a Notice of Claim, which is required by law. On April 27, the motion was withdrawn.

The lawsuit claims the district acted negligently in its supervision of the bus driver, that the district had been warned of the driver's activities by other drivers and took no action, and that, because the district conducted its own investigation of the allegations before contacting police, it "tainted" the police investigation and prevented the driver from being prosecuted.

The Northwest EXPLORER is withholding the name of the student and her parents because of the nature of the allegations. It is withholding the name of the driver because, though he was initially arrested and charged with molestation, the charges were later dropped. The attorney's office refused to say why.

© 2014 The Explorer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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