Exposure of sensitive details has district seeking indemnification

The gloves are off. But some of the punches being thrown could involve legal implications that now have the school district publicly condemning the recent actions of the district’s former special education director.

Problems began when Deirdre Osypuk resigned as head of the schools’ special education department. This information was sent to The Darien Times by her lawyer, Leon Rosenblatt, along with an 18-page letter that described in detail certain services that children with disabilities received. These descriptions could be in violation of the Family Educational Rights and Privacy Act, or FERPA, and confidentiality clauses included in settlement agreements with parents.

The letter included initials of special needs students along with dates that services were provided, which could violate the privacy rights of these children. It also included specific services delivered by the district that Osypuk described as examples of Darien catering to parents’ excessive demands.

Is the school district liable for these apparent violations? Not according to Lynne Pierson, interim superintendent. In response to Osypuk’s allegations, Pierson sent her a letter outlining the district’s claims to indemnification on Jan. 28 — the same day The Times asked her about district liability.

“…I must caution you against releasing records or other information that may be confidential or exempt from disclosure, including records that contain personally-identifiable student information in violation of FERPA,” Pierson wrote to Osypuk. Pierson provided her letter to The Times in response to its request for information on district liability.

“Given that you have resigned your employment, any actions you take on your own following your resignation concerning the Darien Public Schools are not within the scope of your employment, and you are solely responsible for any consequences of such actions,” Pierson continued.

However, Osypuk’s contract states that she “may resign after having given the [school] board not less than 30 days written notice of… her intention to resign.” Her resignation letter was dated Jan. 21, and her lawyer sent both letters to The Times on Jan. 23.

Pierson said that she was aware of the 30-day clause, but that the school board waived that aspect of her contract. She alluded to the recent resignation of Liz Wesolowski from Darien’s special education department, and in this case held Wesolowski to the 30-day notice.

“By contrast, Dr. Osypuk had been on paid leave for months, and there was no need to hold her,” Pierson stated in an email. “As her resignation was ‘effective immediately,’ I promptly acknowledged the resignation without reference to continued employment.

“Therefore, any requirement that she continue in employment for 30 days was waived,” she continued.

Yet, Wesolowski’s position was eliminated from next year’s budget, so she will not be replaced. No other “administrator[s]” have resigned from the district under Pierson.

Rosenblatt declined to address whether Osypuk, who now lives in Massachusetts, was still an employee when she sent her letter, choosing instead to attack The Times’ online coverage of Osypuk’s resignation.

This newspaper initially posted Osypuk’s letter with possible violations on its website, and later redacted the initials of children’s names. However, it removed the letter when it became aware that other violations could be within the document.

Those close to the situation argue that Rosenblatt might have sent his client’s screed in concert with her resignation letter to force the district’s hand and hold it liable for her actions, as a last ditch effort for Osypuk to harm the district amid evidence that Osypuk led the district’s illegal special education program last year.

Andrew Feinstein, a special education attorney who has worked for years in Darien, said it’s likely that the district would not be liable for Osypuk’s actions.

“The obligation is on the employee and it’s for the benefit of the school board,” Feinstein told The Times, adding that the timeline is there so the board can replace the person. Since Wesolowski was not being replaced, and the board held her to the 30-day notice, it appears the district arbitrarily eliminated this clause in Osypuk’s contract.

It’s unclear, however, when the district decided not to replace Wesolowski. It’s also unclear if the district or state has an employee policy or statute that enables it to waive aspects of a contract. Officials could not be immediately reached for comment.

In her letter to Osypuk, Pierson said that a parent sent her a complaint claiming that Osypuk “violated the privacy rights” of her and her child.

“Please be advised that the Darien Public Schools will not indemnify you for claims made against you for any actions you take now that you have resigned your employment,” Pierson wrote. “Please refrain from releasing any information that is protected by law, including student or parent information. You will be personally liable for any claims made based on such actions.”

Pierson told the school board at its Jan. 28 meeting that Osypuk’s resignation “was voluntary and unconditional.” She resigned with six months left on her contract. If she did not receive severance, which appears to be the case, she forfeited approximately $84,000 in salary.

More on FERPA

New district employees are required to sign a confidentiality statement acknowledging that they understand federal privacy law. Parents and disabled children over 18 can waive their right to privacy at any time.

If Osypuk got her information on claims made in her letter from “personal observation, or has heard orally from others,” then her disclosure would not be in violation of privacy laws, the law states.

“This remains applicable even if education records exist which contain that information, unless the official had an official role in making a determination that generated a protected education record,” according to a 2011 guidance paper issued by the U.S. Department of Education.

The Family Policy Compliance Office at the federal education department investigates allegations of FERPA violations, which should be made within 180 days of the date that the complainant “knew or reasonably should have known” of the alleged violation. If “reasonable cause” of a violation is found, the compliance office “may” initiate an investigation. If FERPA was violated, corrective action is issued.

Families also have the option to sue a FERPA violator in civil court, but proving damages in such a case would be difficult, said attorney Feinstein.

There were six sets of children’s initials released in Osypuk’s letter, and four of them were easily identifiable, according to parents who read the letter and knew about those children. To file a FERPA complaint, parents or students can call 202-260-3887. The office will not discuss allegations via email. More information on FERPA can be found here.

Concerned parents and children can also write the agency: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Ave. SW, Washington D.C. 20202-8520.

The state Department of Education and the Family Policy Compliance Office have not responded to requests for comment.

Originally published in The Darien Times.

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