By: Tommy Eden, Attorney
To protect Alabama children and stop payment to teachers convicted of Felonies and sexual offences with children, Act No. 2010-264 (Fincher Act) passed in the 2010 legislative session mandating the immediate revocation of the teaching certificate and the immediate cancellation of the employment contract of any person convicted of a crime enumerated in the Fincher Act. The bill was inspired by the case of Charlene Schmitz, a Washington County teacher who continued to draw more than $140,000 in pay after she was convicted of luring a student for sex and was sentenced to ten (10) years in prison. While incarcerated in a Florida penitentiary the Alabama State Department of Education conducted its revocation hearing via video teleconference in order to provide her with due process rights.
When the Fincher Act went into effect on March 31, 2010, the teaching certificate of Bryan C. Pettibone, a 36-year-old science teacher and boys' basketball coach from Central Baldwin Middle School (Baldwin County), was revoked, his employment terminated, and all payment to him have stopped. Pettibone was arrested in February of 2009 (prior to the adoption of the Fincher Act) and charged with four counts of enticing a child for immoral purposes, one count of attempted sexual abuse, three counts of sexual abuse, and four counts of harassment. His victims ranged from 13 to 14 years of age. Pettibone was subsequently convicted of these charges on May 11, 2010. Previously, Pettibone was protected by the Teacher Tenure Act, which prohibited his immediate termination and he was on paid leave and received more than $65,000 in salary since his arrest in 2009.
The other highly significant Alabama laws that became effective July 1, 2010 relate to sexual relationships between students and school employees, both public and private schools. In accordance with § 13A-6-81, a school employee engaging in a sex act with a student under the age of 19 years is guilty of a Class B felony. Consent is not a defense. The law has a good bit of more explicit language not appropriate for this article. A school employee includes a teacher, school administrator, student teacher, safety or resource officer, coach, and other school employee. Additionally, § 13A-6-82. School employee having sexual contact with a student under the age of 19 years is considered a Class A misdemeanor. Sexual contact means any touching of the sexual or other intimate parts of a student, done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a student to perform a sex act.
5 Common Sense Suggestions for Schools to Reduce the Risk of Sexual Misconduct. With these new Alabama laws in place, and the enormous attention being paid to inappropriate boundary invasions by educators communicating with students through texting, Facebook, and other forms of social media, which can lead to sexual grooming and various crimes involving minors, it is important that schools of all descriptions consider the following:
1) Adopt a strictly enforced written Sexual Misconduct Prevention Policy;
2) Appropriately screen all Employees and Volunteers working with students;
3) Follow a written Protection Policy to protect students and the good name and reputation of teachers and volunteers from false allegations;
4) Have an established written Reporting and Response policy to allegations of Sexual Misconduct; and
5) Decide in a written school policy what may be types of inappropriate contacts between teachers and students, holding your peers accountable, and train teachers and parents on what to look for in the way of inappropriate boundary invasions.
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com