vermont ms tucker was charged wrongfully with failing to report to the department of children and families of child abuse and as a result of that her career was destroyed the claims that we brought in this case  report allegations but that's right allegations and that your honor really is the centerpiece of this case in vermont there is a statute the statutory language is clear that only where there are there is reason to believe that is reasonable cause to believe that there is child abuse or neglect is a superintendent of schools or other educator in vermont a mandatory reporter that she was wrongfully charged  much less than that the officer didn't have probable cause to believe it was appropriate to charge i mean the you know reasonable reasonable cause to believe is not a very high standard and it seems to me that the the the purpose of the vermont statute is to have an end an independent agency with no stake in the matter whatsoever which is which is com by law to be given a report whenever there is reason reasonable cause to believe such a thing has happened because it's not if it is it can be expected in certain circumstances that the school where the thing happens i prefer if it believes it wasn't true it has a vested interest in not making the report and so the statute completely compounds the rip or to be made whenever there's reasonable cause to believe that it that it happened and that doesn't mean that it didn't happen but i don't see why there was a reasonable cause in this case the fact that there are strong arguments the fact that there are i mean the student who made the allegation had a bad credibility record there was very good reason to believe the didn't happen there was very good reason to believe it was a false accusation but that doesn't mean there wasn't at the same time reasonable cause to believe that it did happen to us all it seems to me or your so let me respond to fall for the first piece is that in fact that issue was addressed by a superior court judge in vermont who found that b after a hearing on the matter we preclude from fine i mean we don't have to because there's no issue right whether the officer whether they're in fact was reasonable because the only issue is whether the officer  inappropriately and in his belief in acting upon the belief that there was reasonable cause what you're under let me respond to that a little bit differently so that the court in vermont found that there was not probable cause to find are if there's probable cause for that ends but even apart from that what possible evidence of palace's would be only suggestion is that charges may or may not have been brought or may not have brought against the principle but the principle is easily distinguished because she didn't do something about it while your client did not so that there's there's no indication of malice it seems to me even more invasions they're not books are not easy for you even are but it seems to me voters are stronger that you can talk about in the malicious prosecution because even on probable cause or lack of malice it's very hard to see where that well i respectfully disagree your honor and let me say why the that there is a pattern of behavior throughout the course of this case including requiring my client to submit to fingerprinting and mug shot which was against both the law in vermont and state police policy and of course trooper decker acknowledged that he was aware of the policy at the state police and he did it anyway in addition to that there were many instances in the a davit where he took liberties and it either included information that was not accurate that was in corporate story and excluded information that was exculpatory in terms of whether this alleged abuse even happened in addition to that the press release that he generated misstated the facts in a way that was self serving he said it was first reported to the principal no noise when in fact it wasn't trying to hide the fact that the initial report was to a different mandatory reporter against whom no charges were brought your honor what we also see from the record in this case was that there was a lengthy conversation frankly argument between martha and trooper decker at her office and you see that in in his affidavit of probable cause where he became angry at her because he she refused to agree with his interpretation of the statute in fact what we saw on the record is that when no one noise reported to her  principal the allegations which she did not describe with any specificity she told she was told they were not true it didn't happen and she read the statute to him anyway and asked him whether there were reasonable grounds to conclude that this was in fact the case and i read an understanding that she was charged with two violations violations of forty one thirteen reporting child abuse and neglect that's the reasonable cause as well as though neglect of duty by public officers which requires a willful neglect to perform duties imposed by law yes and i wonder whether your argument about malicious prosecution might be stronger perhaps with regard to that willful neglect because i had difficult time determining from the materials where the officer could have formed the view that her neglect was willful and that she knew of an obligation in fact she seemed to clearly believe she didn't have an obligation not whether that's sufficient or not when one could argue about but do you do you agree that there's a different level of showing that might be required in response to the initial questions we believe that the argument around the feel you're to report on is a strong one and it is even stronger with respect to the neglect of duty charge that was brought against him which of course which has a state of mind requirement in addition and there are no facts in this case that w demonstrate that there was any intentional misconduct by ms tucker in fact the history for ms tucker is that she was a superintendent who many times over many years made reports to d c if but again what the district court did in this case with respect to our malicious prosecution claim is it focused on the underlying allegation without focusing instead on what mr tucker knew based on this conversation with the principal and what ms tucker knew was only that there was a false report similar to the wilkinson case where this court i think the only time this court has ever addressed the issue of the vermont mandatory reporter statute suggested that where the allegation is withdrawn that doesn't rise to the level of a mandatory report and in fact there is no meaningful distinction when the only information you have is there was a report but it's false and i know it's false and there's no duty to report which is almost tucker knew very different than for example the language that exists for the mid to report of vulnerable adult abuse which had the language reasonable suspicion this statute has it very different language which requires the exercise o professional judgment by these licensed educators in vermont and again i come back to it where you are a licensed educator and the only information you have is there is an untrue report and when you review it with your subordinate you were told no it doesn't rise to that level ok that may well be why she wasn't in fact obligated but we're looking at whether decker laws  believe believed does he have to do this very elegant analysis of this case you know and you're honor your point is an excellent one the dismissal was on the issue of qualified immunity but a qualified immunity rises and falls not just on the law we think the law is clear the language is different than reasonable suspicion the the suspected abuse or language that's referenced by the court and by chancel in their arguments only has to do with  immunities for people who are reporters the criminal liability component of this me editorial reporter statute is very clear it is where there are reasonable grounds to find that that there has been abuse and neglect but what is critical here is that decker knew that martha tucker's universe of information about this allegation was that it was an untrue allegation she knew nothing more than a she never once spoke to this child she never once involved herself in the investigation so any suggestion that decker would have to parse through some very complicated piece of language is wholly untrue dekker knew it was anyone else charged well so the principal was also charged and he eventually played a big to five hundred dollars fine for a variety of reasons but the the person who you're to report yes that he plead to that will charge you got me there my recollection is he did not but but i will say this that that the woman to whom the licensed educator the mandatory reporter to whom this matter was initially reported was not charged  person who allegedly engaged in the misconduct jason brigham a teacher was not charged ever and really your honour's the charges stem from trooper decker's frustration with mr parker who was combative with him directly to the question of malicious prosecution because i think there are a couple of things that need to be clarified the argument is that mr tucker was told that the allegations were unfounded that is simply not supported by record the record itself shows that within the first twenty four hours which is the trigger time for reporting what happened was there was a phone call from mr the principal mr noyce he told according to him he and ms tucker never discussed this statute or whether it should be reported and at that point in time with the only thing they discussed was that he would talk to the student within the twenty four hour time period the only thing that happened was that they spoke to the student they spoke to the teacher they spoke to one student who corroborated that the student had said she had been touched inappropriately that was it so to the extent that mr is it did also though come to light that this student apparently had a reputation for yes dishonesty that she had made she had a history yes and other kinds of allegations that had been disproven is that correct they referred to her as a pathological liar and frankly her honor that is the basis on which they made their decision in that twenty four hour period and after that they proceeded to look at different facts which all happened after the reporting period within that reporting period and this is clear from the affidavit of probable cause in fact the officer makes a distinction specifically notes what was done within that twenty four tucker said i was told that was unfounded is simply not credible in fact the noise said we never discussed it in that first conversation can you point are you looking at the affidavit i am looking at the affidavit of probable cause i'm trying to find exactly where that is scuse me one second i think i finally found it to follow again this is what he knew that she actually one ninety one she miss tucker says i want to know who's being investigated and it goes into their conversation and it indicates in paragraph fifty five that the report had been made to melinda that day martha said that no one told her he was dealing with the situation but he didn't believe there was reasonable cause but then later on i in paragraph eighty murtha saying there was a mutual have to the pathological liar right there is a you know i'm i mean i find it telling also that it's just not leaping up the page you that i was basis for him to believe that her that she knew she had an obligation to report and decline to do so there is in fact a reference to this in your honour's that's more specific and i am sorry if i can't find it right now but i would if i would maybe just today sure i will because it's very clear there's a paragraph in which he done in that twenty four hour period it was a willful decision there was not enough information and his read his interpretation was that there is a decision that this student was lying without any basis  for that finding other than that it was her reputation well even if she were even if she had a credibility issue people who lie can still be assaulted so and in fact that's exactly the concern that i think the that the  public has willfully because if she knew she had a duty and she neglected to do it in a deliberate way in other words i think them reasonable cause to believe standard is a lower standard in fact i think it's a very low standard do you think it's above just any allegation or do you think that that requires some kind of minimal evaluation of the allegation i think there's a implicit in reasonable means you can't just you know anything like if there were a case where it were on film and it was obvious that it was not true well that's a different story but in this case you had nothing but a student saying she had been assaulted you have a mandatory reporter who didn't report within twenty four hours a court found probable cause here you account for the failure to charge the person who first received the allegation and well first of all i think she was more of a guidance counsellor and then the principal or th was and that the but the decision of who to charge was not made by this officer it was made by the deputy state's attorney so he did not make a decision on who to charge based on information provided by yes and it and his affidavit made it clear that melinda johnson had been the first person who was contacted so there was an affidavit was absolutely accurate on that and the the deputy state's attorney declined to prosecute because he did rs that could be sensible but that's not what he did we would after the first person in the third person he would have this is that that's a little their order to understand he went after the second and the third the first person got the initial report and reported it to the principal the principal then was the one who was making the decision along with martha tucker whether or not to report on there the two that had the conversation you know mr noyes says he they didn't even discuss reporting it was just he was going to talk with the teacher with the student but that in the you know the fact that one person wasn't charged who had i think less of a responsibility in terms of the overall educational system i think is a reasonable decision have the only face to face conversation twenty four hours with the complainant no that's not correct your honor no one noise also had a conversation with the student within the twenty four hour period ended the conversation that melinda johnson had in fact it wasn't a conversation she made a write down a statement and that statement was in the possession of both was in the possession of mr noyce and  position ms tucker having received word third hand of an allegation should have reported that even with the assessment of the people closer that it had no merit and that the person making the allegation was not to be believed except that the person that supposedly told you that says to officer decker that they never had the conversation i'm saying that is your position that she should have reported on the facts alleged here which yes the person the principal comes to her and says we have this allegation i don't believe that this there's this history and she in that in the face that should be has to report it yes because i think an allegation from a student is a very serious thing in and of itself the fact that you may think that this student is not the have the greatest credibility is is but you have no knowledge one way or the other about these specific  you do and that's consistent with the she had reasonable cause to believe i do and i don't think that's a very high i think it's as the statute made clear what the the legislature was looking for was the reporting of suspected child abuse that's what that was what they were looking for they were looking for substantiated child abuse we don't just say allegations i can't speak to why they didn't say that i think what they were trying to do w create some level of subjectivity but i certainly don't think it was the level of subjectivity that mr lynn is suggesting which would make this statute utterly toothless the reporting requirement within twenty four hours law that said an allegation of a student loan isn't enough to trigger the list shea case made it clear that in receiving the reports secondhand didn't change the obligation and the two  to actually report so there certainly wasn't i mean we're talking about qualified immunity here there was a finding of probable cause by this vermont superior court based on the facts that ms tucker says were inaccurate in part and if we and if we excised those facts the facts that the videotape the decker said that the videotape didn't really accurately depict what was happening well that's i think true because it was a photograph and i believe an i phone recording of a recording that was forwarded fast forwarded so even if that's false i don't see how that goes to probable cause  willful neglect i believe that the malicious prosecution claim was premised on the mandatory reporter statute and that certainly was the discussion that happened below and it could have been in the factual allegations that both were charged but i submit to you that on this record where we know what has happened in the twenty four hour period and there is nothing at that point nothing that indicates that the student was lying there is at that point she the mr the principal spoke with the student would discount you would say that their history that had been made this was just a general as i understand it there have been specific incidents it was her reputation i believe that they were focusing on there was something some assertion that she had gotten other people in trouble i'm not sure what that means but and there certainly  when when pressed ms tucker didn't know this student at all didn't know what the basis for the belief of her being a pathological liar work was and frankly this is exactly the concern that you know authorities have about this statute that information  emerged after twenty four know it that that was one piece that did occur within the twenty four hours noise said well actually it's not clear to be to it's not entirely clear if i believe it was s in one of two conversations one occurred before hand one occurred after and i don't know that we have tied it down specifically as the as to which time but but the fact that that doesn't go to any demonstra or some people or that's correct and i think it was reasonable for him to say ok you know given the purpose of the statute which is to encourage reporting courage reporting of suspected child abuse that  her failure to do so in these circumstances when within twenty four hours there was nothing showing that other than a credibility assessment by someone else about a person she didn't know i don't i submit that that is exactly what the legislature wouldn't want to be happening that we make credibility decisions and say well we don't have to report it because i don't believe her i mean that's perceived that's the argument and that appears to me to suggest that we can say well you know a student can report but we don't believe her so that's that's good enough i believe that the fact that the the teacher denied it and you know it proceed to have an investigation that was we don't have to report it immediately we do need to investigate we take these allegations seriously and that was pursuant to your view it's pretty they did the investigation under a different statute for purposes of educational statutes  d the twenty four hour trigger is twenty four hours so yes anything they did after twenty four hours they violated the statute and the statute doesn't say anything about investigating is it reasonable cause to believe when a student has made the allegation when the person who the allegation comes to is a mandatory reporter they don't meet they don't rip within twenty four hours i submit to you that that's probable cause and in fact the court  probable cause and these other facts that are supposedly false do not do not question any of the other of the underlying elements of the cause that she's a mandatory reporter and that she didn't report within eighty three claim was on a motion to dismiss the subsequent to its dismissal was of the state law a claim was on a motion for summary judgment if we're looking at it in the context of a motion for summary judgment a direct the court to join appendix pages one seventy and one seventy one where ms tucker in deposition said specifically within the twenty four hour period i was told that the student made an allegation without specificity that there that they had looked into it and the facts didn't support the allegation it wasn't just reputational it was there were specific facts that showed that story did not stand up to scrutiny so so that's the information is tucker head now what i would suggest to you is the statute says moment you enter the state where you have reason a reasonable grounds to believe that there is abuse or neglect then that the obligation to report is triggered and so if there was ever a time during the course of their  i was told that this was a story that did not hold up that these were on true allegations and is it reasonable for an officer having been told that with this statute there to think that that is not an adequate whether he's right or not but that is not an adequate reason for not and what i would suggest is any reading of the plain language says reasonable i'm sorry i keep losing a reasonable grounds to conclude reasonable cause to to believe so so the question is is it reasonable officer you look and you go what were reasonable grounds to believe i want to goo back then to the willful because if he gives his explanation and he thinks with the statute has a to report what does vat say about what he thinks about her state of mind and his vat in the case it is is very superficial for him to believe that she was willfully not following the statute no no no judge of course and then the final issue i must face i can follow you i think your adversary said that the malicious prosecution claim was focused on the failure to report as opposed to the willful neglect charge well we raised the issue in the complaint i think if the court looks to that to the complaint you'll see the issue is presented as one of the two charges that were raised in our view is that the charges both were not power if we were coming to conclude that your case your appeal cannot succeed with respect to the mandatory reporter aspect what would it  but if if the if if if the officer was acting in a manner where as to which your suit cannot succeed with respect to the mandatory reporting requirement does it change it that there w charge that was less warranted but we'll have to sort our way through that the short answer is i don't know that is after all a suit has religious possible damages and i think the question that's being asked is if she could be arrested and charged and all the over horrible things with happened afterwards would have happened anyway under something is to which she had qualified immunity is where anything or any damages left that as to which this was about foreclose well we we would have to develop a damages case on that basis the short answer is judge i don't know at this time what that  is under the nominal control of a supervisory union school boards of do not work for superintendents the district school boards employ the teachers in the principals in the building they are not the employer of the superintendent the supervisory employees the super superintendent and so the superintendent has no authority to hire or fire teachers or principals only the school boards do so you can imagine where your credibility as an educator is whol undermined by the series of snoops newspaper stories that followed this arrest or this citation and the release of the mug shots that her ability to present herself as herself is a credible educator was totally undermined and went on track with the contract the contract began before the charges were issued the school year runs from june thirty two june thirty or july one to june thirty it was signed in the first week of july after the church for july twenty third after the charges were issued but under vermont law a don't see why she would she she would quit because she would go to meetings and people would heckle her people were second guessing her principals and teachers were not collaborating or corrupt cooperating with her but before i perform i leave i know i am out of time but i have to resist other issue of invasion of privacy the concept that somebody can force you to have a mug shot and to be fingerprinted too so that they will those things can be released to the press mr decker didn't release them though with the public information office right that released them they become a matter of public record and open to the public generally as soon as they are part of the state police databanks and they want those it those items were released and could have been released to anybody who asked for them and can be released to anybody who asked for them because they were illegally taken there was no basis and and decker even admitted she knew there was no basis to ever take her mug shot and fingerprints and we believe that the invasion of privacy claim is a very strong thank you for very much thank you very much you both well argued that we will reserve decision