“A MUST READ”
THE UNIFORM STATE MEMORANDUM OF AGREEMENT BETWEEN EDUCATION AND LAW ENFORCEMENT OFFICIALS.
It is now early December. The days are all too short, the holiday shopping season is in full swing, and the limited free time you do have is filled with thoughts of your family’s wish list and deciding on your holiday dinner menu. The summer months, and the time spent planning for the upcoming school year seem like a distant memory. Drafting your master schedule, coordinating staff and student transfers, revising curriculum, and reviewing your District’s evaluation rubric were likely part of your daily itinerary. But, did it also include a review of the Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials? (Hereinafter the “MOA”, or the “Agreement”) Do you have a copy of the MOA in your Office? Even before the events of Sayreville made national headlines, the MOA was a must read for all school administrators, directors and supervisors.
I am sure most of you go to school each day hoping to cross off the items on your things to do list: walkthroughs, observations, post observation conferences, and meetings with parent and community groups, etc. Inevitably, however, an incident occurs that you did not plan for. What if that incident involved a student bringing a gun to school, possessing marijuana in his or her locker, or, as in Sayreville, alleged acts of hazing and assault? What are you required to do once you receive this information, I.e., in the immortal words of Bill Murray, “Who you gonna call?” The answers are found in the MOA.
While this article will focus on the MOA’s reporting requirements, an overview of the MOA is first necessary.
- HISTORY OF THE MOA
The initial model MOA was drafted by the New Jersey Department of Education and the Department of Law and Public Safety in 1988. The intent was to foster cooperation between local law enforcement and school districts to combat the growing problem of student alcohol consumption and substance abuse. See, MOA, Article 1, Sec. 1.1. The model MOA was subsequently amended in 1992, 1997, 2007 and 2011; the latest revisions were made “in response to the Anti-Bullying Bill of Rights Act and to address the assistance provided to attendance officers handling truancy matters.” Id.
- EDUCATION REGULATIONS CONCERNING THE MOA
The education regulations in Title 6A require each New Jersey school district to execute an MOA with local law enforcement. N.J.A.C. 6A:16-6.2(b) 13i, ii. The MOA must be executed by the following individuals:
- President of the Board of Education;
- Chief School Administrator (includes charter school lead persons and administrators of approved private schools for students with disabilities);
- Chief(s) of the police department or the station commander(s), as appropriate;
- Executive county superintendent; and
- County prosecutor.
See Guidance on the Annual Review and Approval of the Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials, State of New Jersey, Department of Education. (2014).
The regulations also require each District, in coordination with local law enforcement, to perform an annual review of 1) its MOA: to discuss its implementation and determine whether any revisions are necessary, and 2) its policies and procedures pertaining to Law Enforcement Operations for Alcohol, Other Drugs, Weapons and Safety. N.J.A.C. 6A:16-6.2(b) 14. “The annual review shall include input from the executive county superintendent, community members, and meeting(s) with the county prosecutor and other law enforcement officials designated by the county prosecutor.” N.J.A.C. 6A:16-6.2(b) 14i.
While the regulations do not specifically mention a building Principal’s attendance at a District’s annual review meeting, in accordance with Article 16 of the MOA all building Principals must be invited to the annual meeting:
It is understood that every chief of police, school building principal and local chief school administrator shall be invited to attend, along with any other persons or representatives of organization who could contribute to or benefit from the proceedings.
Based on the aforementioned language in Article 16, I would submit that those Administrators, Directors and/or Supervisors who are responsible for handling student disciplinary referrals and imposing student discipline must also be invited to attend the meetings as these school officials “could contribute to or benefit from” the meeting.
- DISTRICT EMPLOYEES WHO SHOULD POSSESS A COPY OF THE MOA
Per Article 15.3 of the MOA, every District principal, in addition to its chief school administrator, must receive a copy of the Agreement. Accordingly, if you are a principal and do not have a copy of your District’s MOA, you should ask for a copy immediately. Moreover, any District participant at the annual revision meeting must receive a copy of the “revised MOA, or the revised section of the MOA.” See MOA, Article 16.
- DISTRICT REPORTING REQUIREMENTS PURSUANT TO THE MOA, AS WELL AS NEW JERSEY STATUTES AND REGULATIONS.
District reporting requirements under the MOA are found in Article 4. As the reporting provisions within Article 4 note, however, many of the reporting obligations were initially grounded in the New Jersey Statutes and/or Regulations. The MOA reporting requirements, as well as the statutory and regulatory basis for same, are set forth below:
Article 4.1. Requirement to Report Offenses Involving Controlled Substances.
Subject to limited exceptions, “school officials” must promptly notify their local police department and/or county prosecutor’s office whenever any school employee has reason to believe that a student has possessed, sold, or distributed controlled dangerous substances on school grounds. The only exception to this reporting requirement is when “a student has voluntarily and on his own initiative sought treatment or counseling for a substance abuse problem, provided the student was not involved in drug distribution activities and further provided the student participates in an appropriate treatment or counseling program.” MOA, Article 4.1
While the term “school official” is not defined in the MOA or the accordant regulations, the regulations do delineate the procedure to be followed when a staff member has reason to believe that a student has “possessed or in any way been involved in the distribution of a controlled dangerous substance, including anabolic steroids, or drug paraphernalia.” See N.J.A.C. 6A:16-6.3. First, the staff member is to notify the principal or, in his or her absence, the individual responsible at the time of the violation as soon as possible. N.J.A.C. 6A:16-6.3(a). Next, “the principal or the responsible staff member shall notify the chief school administrator, who in turn shall notify as soon as possible the appropriate county prosecutor or other law enforcement official designated by the county prosecutor to receive such information.” N.J.A.C. 6A:16-6.3(a) 1. Lastly, the “chief school administrator or his designee shall provide to the county prosecutor or his designee all known information concerning the matter, including the identity of the student involved.” N.J.A.C. 6A:16-6.3(a) 2. As noted above, however, the student’s identity cannot be disclosed if the alleged criminal activity is limited to drug possession and the student has voluntarily sought and participated in treatment. See N.J.A.C. 6A:16-6.3(a) 3. i.; See also, MOA, Article 4.1.
Article 4.6. Requirement to Report Incidents Involving Firearms.
Pursuant to this Article and the pertinent regulatory provisions, whenever a school employee reasonably believes that 1) a firearm has unlawfully been brought onto school grounds; 2) any student or other person is in the unlawful possession of a firearm, whether on or off school grounds; or 3) any student or other person has committed an offense with, or while in possession of, a firearm, whether or not the offense was committed on school grounds, the employee shall report the matter as soon as possible to the principal or, in the principal’s absence, the principal’s designee. N.J.A.C. 6A:16-6.3(b). The principal or the principal’s designee must then notify the chief school administrator who, in turn, must notify the county prosecutor or other designated law enforcement official. N.J.A.C. 6A:16-6.3(b) 1, 2.
Article 4.10. Requirement to Report Incidents Involving Planned or
Under this Article, and in coordination with N.J.A.C. 6A:16-6.3(c), (d), & (e), a chief school administrator must notify the designated law enforcement authority whenever a school employee reasonably believes that,
[a]nyone has threatened, is planning, or otherwise intends to cause death, serious bodily injury, or significant bodily injury to another person under circumstances in which a reasonable person would believe that the person genuinely intends at some time in the future to commit the violent act or to carry out the threat.
In making the threat assessment, the chief school administrator “should reference the risk management and assessment tools explained in the NJDOE publication, School Safety and Security Manual: Best Practices Guidelines.” Article 4.10. The following factors are irrelevant, and should not be considered however, in determining whether a report to law enforcement is required under the MOA: 1) whether the threatened or planned act of violence is imminent; 2) whether the intended victim is aware of the threat; 3) whether the intended victim is a student or member of the school community; or 4) whether the violent act is intended to be committed on school grounds.
If the chief school administrator determines that the information received warrants a report to law enforcement officials, “all known information relevant to the threat, including but not limited to any historical or background information concerning the person’s behavior or state of mind must be provided.” Article 4.10. The signatories to the MOA emphasized that all credible threats should be taken seriously and that the language of Article 4.10 must be “liberally construed with a view toward preventing future acts of violence.” Id.
Article 4.12. Requirement to Report Sexual Offenses.
This Article, in coordination with N.J.A.C. 6A:16-6.3(d), requires a chief school administrator to immediately notify law enforcement whenever a school employee reasonably believes that a “crime involving sexual penetration or criminal sexual contact has been committed on school grounds.” Based on these provisions, if a teacher reasonably believes that such an act occurred, that teacher should immediately report the incident to the building principal, who, in turn, must immediately report the incident to the chief school administrator.
Article 4.19. Reports of Child Abuse or Neglect; Potential Missing or Abused
The reporting requirements delineated in this Article and its subsections, as they are in the sections previously discussed, are grounded in this State’s statutory and regulatory provisions. As set forth Article 4.19, the educational statutes, Title 18A, as well as the statutes pertaining to the Juvenile and Domestic Relations Courts, Title 9, require school officials to contact the Division of Child Protection and Permanency (CP&P), formerly known as the Division of Youth and Family Services (DYFS), and law enforcement, if a staff member reasonably believes that a student is missing or has been abused. See N.J.S.A. 18A:36-25; See also, N.J.S.A. 9:6-8.10.
4.19.1 Reports of Child Abuse or Neglect to DYFS (Now CP&P.
“Any person having reasonable cause to believe that a student has been subjected to child abuse or neglect must immediately report the matter to DYFS (now CP&P) by telephone utilizing its Child Abuse Hotline, 1-877-NJABUSE. See N.J.S.A. 9:6-8.10; See also, N.J.A.C. 6A:16-11.1(a) 2. These provisions thus require each school employee to immediately contact CP&P if the employee reasonably believes that the student was abused or neglected. While your District’s prior practice might only entail a staff member’s notice to the building principal, who then contacts CP&P, strict adherence to the law requires notification by any and all employees who have reasonable cause to believe that an act of abuse or neglect occurred.
4.19.2 Notification to Law Enforcement.
In addition to contacting CP&P, law enforcement officials must be contacted when a student is believed to be missing, or the victim of abuse or neglect. Each District must develop policies “requiring the Principal or other designated school official(s) to notify designated law enforcement authorities of incidents of potentially missing, abused or neglected child situations.” N.J.A.C. 6A:16-11.1(a) 3.
4.19.7 Custody Disputes and Potentially Missing Children.
“[I]f it comes to the attention of a school administrator that the absence of a child from school may be due to a parental kidnapping or custodial interference, the school administrator shall immediately contact law enforcement authorities.”
Article 4.20 Offenses Involving Computers, the Internet and Technology.
The purpose of this section of the Memorandum is to recognize some of the areas where law enforcement and educational professionals should cooperate to ensure a unified response to the illicit and harmful use of technology by students, teachers, administrators and other school staff. These areas include:
- Unauthorized access to school networks.
- Harassment and threats via electronic media.
- Use of technology to facilitate other crimes.
- Blogging (free speech).
- Limitation of electronic devices, such as cell phones, pagers and cameras, on school grounds.
4.20.2 Unauthorized Access to School Networks, Harassment
and Threats via Electronic Media, and the Use of Technology to Facilitate other Crimes.
The unauthorized access to school networks is a prosecutable crime. N.J.S.A. 2C:20-25. As such, and pursuant to this Article, “notification should be made to law enforcement immediately upon learning of unauthorized access.” MOA, Article 4.20.2
In addition to the unauthorized use of school networks to access data, a school computer, electronic device or network may be used to commit a separate crime, I.e. to harass or threaten other students. “Therefore, when notification to law enforcement is appropriate, the entirety of the investigation should be conducted by law enforcement so as to not compromise the integrity of potential evidence.” Id.
4.20.3 Blogging and Free Speech Issues.
The use of blogs to anonymously criticize, humiliate, harass, and/or threaten an individual or a group of individuals, has grown demonstrably over the past few years. The balance to be struck by school officials and law enforcement is the protection of the blogger’s First Amendment right of free speech along with the protection of those victims who are the targets of harassing and threatening blog posts. Because law enforcement personnel are best suited to analyze whether the blog posts are protected speech or criminal behavior, the MOA requires school administrators to immediately notify law enforcement of blogging information that is perceived to be threatening or harassing in nature. Immediate contact with the authorities is necessary to ensure that the electronic evidence is secured before it can be altered by the author. “If such information is brought to the attention of law enforcement, a legal determination will be made on whether the information contained in the blog is constitutionally protected” or criminal in nature. MOA, Article 4.20.3.
I hope that this MOA snapshot has been informative and helpful. I strongly urge all Administrators, Directors and Supervisors to obtain a copy of your District’s MOA, if you do not have one already, and review it in its entirety. You never know when your day that was supposed to be filled with observations and meetings will be turned upside down by allegations of criminal behavior that were lodged against one of your students or staff members.
William Nossen, Esq.
Former NJPA Staff Counsel
 While a proposed, revised 2015 MOA has been drafted, primarily to combat the growing student use of designer and prescription drugs, it has not yet been approved. A follow-up article will be released once the approval process is complete.
 Pursuant to N.J.A.C. 6A:16-6.3(e), the building principal, as well the District’s chief school administrator, must be immediately notified whenever a school employee reasonably believes that “a bias-related act has been committed or is about to be committed on school grounds, or has been or is about to be committed by a student on or off school grounds, and whether such offense was or is to be committed during school operating hours, or a student enrolled in the school has been or is about to become the victim of a bias-related act on or off school grounds, or during operating school hours.” Id.
 The title of “Administrator” is defined in the School Ethics Act, and it is defined broadly to include all positions which require a school administrator and principal certificate, as well as those supervisory positions where the supervisor is responsible for personnel recommendations or the “purchase or acquisition of any property or services by the local school district. N.J.S.A. 18A:12-23.