The Morgan Hill Unified School District for several years has annually trained its faculty and staff on their responsibilities as mandatory reporters of suspected child abuse. But officials are refusing to explain why employees failed to call police in 2014 when a student complained that Kevin Cole had touched and spoken to her inappropriately at Sobrato High School.
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Cole, 36, of Newark, was found guilty in June of misdemeanor annoying and molesting a child in relation to an incident in late 2017. He was on trial for three counts that he inappropriately touched three teens backstage during a production of “The Nutcracker” at the high school, and was found not guilty of two of the charges.
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The crime Cole was convicted of is unrelated to the 2014 complaint that stayed within the district. Cole was a theater lighting and sound technician contractor for MHUSD at the time of his December 2017 arrest, and had been working for the district in similar capacities since about 2013, according to authorities.
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The district is now going to be sued for failing to report the 2014 allegation to police, according to the attorney who represents three of Cole’s accusers. Two of these teens are also preparing to sue the dance company that produced the performance during which Cole committed the crime at Sobrato High School, said the attorney, Lauren Cerri.
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Under California law, any adult who works with children at a public school district is considered a “mandated reporter” of child abuse or neglect. Whenever such an employee “reasonably suspects” a child has been a victim of child abuse or neglect, that employee is required to report their suspicion to law enforcement or child protective services.
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If an employee fails to report child abuse or neglect when suspected, they can be charged with a misdemeanor, punishable by up to six months in jail, a fine of $1,000 or both.
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In 2014, a female Sobrato High student told drama teacher Christopher DeMelo that Cole, while working as an assistant in drama class, had touched or flirted with her in a sexual manner, according to court documents and the prosecutor who argued the 2017 criminal charges against Cole. DeMelo forwarded the student’s complaint to then-assistant principal Vera Gomes, and a brief internal investigation was conducted that found the student’s claim not credible.
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During Cole’s criminal trial, DeMelo testified about the 2014 complaint, with immunity protecting him from being charged for failing to report the abuse allegation, according to Santa Clara County Deputy District Attorney Barbara Cathcart. Gomes also cannot be charged for failing to report the abuse because the incident fell outside the statute of limitations, which is one year.
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“Our office’s position is, we’re outside the statute of limitations. We couldn’t prosecute either of them because it’s too late,” Cathcart said. She added DeMelo requested immunity in exchange for his testimony because he “was still concerned” about being charged.
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MHUSD staff and board members declined to talk about the Cole case specifically, but they discussed the district’s mandatory reporter training and procedures in general.
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“Morgan Hill Unified School District annually conducts an in-depth training program for all staff in accordance with what is required by the State of California for mandated reporters,” MHUSD spokeswoman Kimberly Beare said in a statement. She said this training program has been in place for more than 10 years, and is required annually for every district staff member.
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Since 2015, the state law has required school districts to train their employees annually on their mandated reporting responsibilities.
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Elected MHUSD trustees—who approved a settlement on behalf of the district in 2017 in relation to a separate child abuse lawsuit—said they are updated regularly by staff on annual training and policies related to mandatory reporting. The board members said they are confident that staff and faculty are up-to-date on their training and responsibilities.
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“I have talked to some teachers—not about this case, but in general—(and) they have told me they’re trained and they’re aware of reporting requirements,” said Trustee David Gerard. “I’m confident the district would monitor this; it’s a huge priority.”
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Trustee Donna Ruebusch said she knows from personal experience as a former teacher for MHUSD that staff are fully versed in the “policies, practices and ongoing training” for mandatory reporters.
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Trustee Gino Borgioli confirmed that board members are informed about annual training and mandatory reporting procedures.
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“Knowing what I know, I feel all staff is up to date on the mandatory reporter process, especially since the Loyd case,” Borgioli said.
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Borgioli was referring to John Loyd, who was convicted of sexually assaulting four female students in his fifth-grade Paradise Valley Elementary School classroom from 2012 to 2014. Attorney Robert Allard secured an $8.25 million settlement from MHUSD on behalf of three of the victims’ families in early 2017.
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The same firm is now preparing to sue MHUSD for negligence and failure to report suspicion of abuse, on behalf of three of Cole’s female teen accusers, according to Cerri, who practices with the Corsiglia, McMahon and Allard law firm.
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Two of these teens are also likely to sue South Valley Dance Arts, the private Morgan Hill company whose tutelage the girls were under when they say Cole touched or spoke to them inappropriately, Cerri added.
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The crime for which Cole was convicted in June occurred during a late 2017 production of “The Nutcracker,” produced by SVDA at Sobrato High School.
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The victim of that crime is not among the teens represented by Cerri and the Allard firm.
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“The district required (SVDA) to hire a backstage production person purportedly for safety purposes while using the district’s facility for the performance, and recommended Cole to (SVDA) despite actual and/or constructive knowledge that Cole had engaged in improper conduct toward minors while working for the district,” reads the claim filed by the Allard firm against MHUSD.
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