January 24, 2020, Samantha Hollins, assistant superintendent of VDOE’s Department of Special Education and Student Services, provided incorrect guidance on the recording of resolution meetings.
She first indicated that there is a Virginia regulation prohibiting the recording of resolution meetings.
The United States Department of Edâs OSEP MEMO 13-08 (see D16, D-17, and D-18 in particular) states that there is nothing in IDEA stating that resolution meetings should be confidential and nothing preventing those conversations from being used during due process hearings. This document specifically states, per âQuestion D-16, neither an SEA nor an LEA may require the parties to enter into such an agreement as a precondition to participation in the resolution meeting.â
After being proven wrong, Sam then stated that she “didn’t have a specific regulatory citation within the state regs, however, IDEA implementing regulations shows it does give the parties the ability to agreeing on confidentiality as a part of a conversation around possible settlements”, and then she hung up on me after I 1) continued recording and 2) asked for her to provide the regulation (she would not).
In any conversation, parties can ask that they be confidential, however, that doesnât dictate that recordings be prohibited. VDOE can’t require parents to enter into such an agreement as a precondition to participation in the resolution meeting. This is clear in United States Department of Edâs OSEP MEMO 13-08
The transcript and audio for that meeting follows below.
Automated voice: â¦ other participant in meeting.
Callie Oettinger: Hello?
Samantha Hollins: Hi. This is Sam Hollins with the Virginia Department of Education.
Callie Oettinger: Hi, Sam. Callie Oettinger.
Samantha Hollins: Hi Ms. Oettinger. How are you doing today?
Callie Oettinger: Good. Thanks.
Samantha Hollins: Good. Well as I understand, we scheduled todayâs date and time for the resolution session for the complaint you have filed, so I will give the floor to you to talk through any possible resolutions that you have for your complaint
Callie Oettinger: Um, I believe thatâs on you guys to offer the resolution. I think that youâre well aware of my issues with VDOE and the facts of what happened with these first five complaints I submitted, all the way from Sabrina claiming that Iâand, oh, first, before we get going . . . Am I on speaker phone?
Samantha Hollins: Yes. Iâm in my meeting and yes thatâs a great point. Thank you so much. Here itâs myself. Pat Haymes. We are all (audio cut out) this session. Can you also confirm that youâre (audio cut out) recording?
Callie Oettinger: Iâm sorry. You saidâyou cut outâyou said you, Pat Haymes and youâre recording?
Samantha Hollins: I said we are not recording.
Callie Oettinger: Oh, youâre not, oh youâre not recording. Ok. Um. Iâ
Samantha Hollins: Weâre asking that you are also not recording as the resolution session is confidential.
Callie Oettinger: Oh, so my understanding is that you can record resolution sessions.
Samantha Hollins: That is not the case.
Callie Oettinger: Whaâ
Samantha Hollins: There is a state regulation.
Callie Oettinger: Where? What state regulation is that, because I understand that you canât do it with mediation, but you can do it with resolutions, so can you point me to the state regulation that says I canât record a resolution meeting?
Samantha Hollins: Sure. Iâll be able to provide that specific citation for you, but while Iâm working on that, can you confirm that youâre not recording?
Callie Oettinger: No, I canât confirm that, because my understanding is that Iâm allowed to, so if you could let me know where it shows I can not, then Iâd be happy to stop recording.
Samantha Hollins: Ok. Just a second.
00:02:06 to 00:07:20
Silence for five minutes while VDOE put me on hold.
Samantha Hollins: Ms. Oettinger, You still there?
Callie Oettinger: Yeah, I am.
Samantha Hollins: Great. And I heard another entry point. Did somebody else join our call?
Callie Oettinger: Nope. Just me.
Samantha Hollins: Ok. Great. So . . . Um . . . Actually, you are correct. I donât have a specific regulatory citation within the state regs, however, IDEA implementing regulations shows it does give the parties the ability to agreeing on confidentiality as a part of a conversation around possible settlements, that would then not be used against them in a due process hearing. So, in this situation, the department is asking for that confidentiality for this conversation. However, if you are not amenable to that, if youâll let me know that, we can, we can move on accordingly.
(In any conversation, parties can ask that they be confidential, however, that doesnât dictate that recordings be prohibited. In addition, thereâs nothing dictating that conversations be stopped if a party declines privacy. Samantha tried to bend an option for requesting privacy into a rule for blocking recording.)
Callie Oettinger: Which, um, and, and, can you tell me where in IDEA 2004 youâre pointing to? I just want to make sure, again, that weâre on the exact same page.
Samantha Hollins: And Iâm sorry. I donât understand your question.
Callie Oettinger: What regulation? You said implementing regulations. What are you referring to? What exactly? Whatâs the statute number?
Samantha Hollins: Yes, I will be able to get that for you as follow up. Iâm quite honestly not going to take the time now to do it. If you tell me that youâre in agreement, that youâd like to engage in this conversation, without recording, then we can do that. If youâre not amenable to that, please let me know and we can stop the conversation now.
Callie Oettinger: Ok. So youâre telling me that youâre not amenable to having a conversation thatâs not recorded.
Samantha Hollins: That is correct.
(This is confusing, because she just agreed that sheâs only amenable to conversations that are recorded, even though she stated the opposite previously.)
00:08:44 to 00:08:49
Samantha Hollins: But if youâd like to have a conversation that is not recorded to discuss possible resolutions, we are more than happy to do that at this time.
Callie Oettinger: Ok. . . (laugh here) I just, I just said to you, âYouâre amenable to not, to having a conversation thatâs not recorded. Ok. And, but youâre not amenable to having a conversation thatâs recorded. So, if I donât agree to it, you wonât have the conversation. You wonât hold the resolution. Is that correct?
Samantha Hollins: So Iâll be honest. At this juncture, we are holding the resolution session. We would have met our requirement. However, if the parties are not amenable to agreeing within the purview of that conversation then no, we will not have additional further communication on this topic.
Callie Oettinger: So can you just point that out to me, where that would be a dealbreaker, because Iâd like to see that as well. If youâre telling . . . My understanding is that the resolution meeting goes forward and you agreeing or not agreeing to me recording it, has nothing to do with it and canât stand in the way of it. So if youâre telling me that me not agreeing to turn off my recorder is going to stand in the way of you actually holding a meeting with me, Iâd like to know where thatâs stated in the law.
Samantha Hollins: So as I stated, in the IDEA implementation regulationsâand I will follow up with the specific citation when I have a chance to do thatâit does give the parties flexibility to determine the purview and scope of the conversation and, as part of this conversation since it is a resolution setting, to discuss possible terms of a settlement, and as such, the confidentiality of that conversation is important as to not produce information that could be used subsequently in due process hearings should the parties not reach an agreement.
(She took five minutes previously to determine that the previous regulation she stated didnât exist, but now cites another, but doesnât know what it is and refuses to provide it. She tries, again, to use one option â that of discussing confidentiality â to dictate recording. She is also trying to prevent the conversation being used in a due process hearing, even though resolution conversations can be used in due process hearings. See previously cited info above. )
Callie Oettinger: Youâre telling me about something that exists, but youâre not able to tell me where it is, so Iâm assuming that, since you put me on hold for such a long time and you couldnât find Virginia regulations, you came back and youâre now citing some other regulations, but you canât tell me what they are and where theyâre at. So that raises a concern for me, because my understanding is that I am able to. So if you just, pleaseâI know you donât want to waste timeâbut I very much want to talk with you. Iâd love to come to a resolution with you, but at the same time I need to understandâand itâs really unfortunateâthat this wasnât put forth by you guys in advance. I mean, youâre the ones who just started the meeting without even talking about any of this. Iâm the one who had to ask, âAm I on speaker phone,â and ask who else was in the room. So thatâs something that usually people start off right away. And you didnât. So, if you could just let me know what the regulations are . . . I mean someone in the room, maybe Patricia knows? Maybe you could call someone and ask them? But, if youâre going to cite something to me, thatâs going to end with me possibly not having this conversation with you, Iâd like to know where it is. And, again, you had the opportunity to contact me about all of this in advance and you didnât.
Samantha Hollins: So Ms. Oettinger, I told you that we would provide that information to you following the call. However, Iâm trying to understand you. It seems you are not willing to not record the session.
Callie Oettinger: Well. What I want to know is where youâre telling me it exists. Because, for you giving it to me after the call, means I might now be pushedâif youâre telling me the only reason I, the only way I can have this call with you is if I stop, you know, if I donât recordâthat puts me in aâand you wonât give me the citation until after the phone call that pushes my hand into not having my option to record, because you wonât do it. You wonât talk to me. Now if youâre willing to give me the citation in advance right now, then we can discuss it and I can understand it. But, I donât like having my hand pushed because youâre giving me, youâre telling me thereâs a citation, yet youâre not actually able to tell me what that citation is. And, it seems to me that youâre actually refusing to give it to me until after our conversation takes place.
Samantha Hollins: Ms. Oettinger, this call is not about disagreeing or having a call about implementation regulations regarding a resolution.
Callie Oettinger: I understand that, but if youâre telling me that I canât have a conversation with you if Iâm recording, and then youâre going to cite a citation related to that, then I need to know what that citation is. Iâd love to go straight into having this conversation about a resolution, but I find it, um actually pretty disturbing that you didnât come to the table in advance with all of this stuff set up. I mean, I donât feel like thatâs my responsibility, but as has been the course with Fairfax County and VDOE, it seems that so often it is my responsibility to set things up. So maybe Iâll know in the future that I should have been the person to contact you and set the terms of this call. So, if you could just let me know what citation youâre referring to thatâd be great.
Samantha Hollins: Ms. Oettinger, first of all itâs really hard to have a conversation when you interrupt me when Iâm trying to communicate with you, so I would appreciate if you would stop interrupting me as Iâm speaking. As I have stated, the department â not in any way to misconstrue that this would be so big of an issue â will gladly provide that additional information to you. As I have stated, this is our scheduled resolution session. I am not going to take the time to do that now with you on the phone. If you are truly interested in having the conversation you espouse to want to have, if you can confirm youâre not recording, we can get into the meat of discussion resolution options. However, if not, then we will end this call as the resolution can not continue based on your inability to cooperate.
Callie Oettinger: This isnât based on my inability to uh not cooperate. This, I see it as your inability to not cooperate. You cited. You said thereâs a citation. You put me on hold for a long time. You couldnât come up with that citation and then you told me thereâs another citation. All Iâm asking for is, âWhat is that citationâ. I very much want to cooperate with you. I very much want to move forward. I would love to take care of all of this. So, Iâm just asking, âWhatâs that citation?â If you say there is one, I donât understand why youâre not just able to readily tell me, because that could take care of this thing in a matter of a minute or two and then we could be on our way. But, your response to me, honestly it comes off as very defensive and it makes me feel like you have no interest in cooperating with me, and also indicates to me that you werenât prepared at all for this conversation since none of this was set up in advance. These are discussions which should have happened. In advance.
Samantha Hollins: Ms. Oettinger, Iâm sorry if Iâm coming off as defensive. I really do want to engage in this conversation. However, as you pointed out, you would desire to have that information before you engage in that call, and that I completely understand. So, at this point, we will end the call. I will find that information. We will be able to provide that and we can continue this discussion during the pre-hearing conference call scheduled for Monday.
(By law, the resolution meeting is separate and occurs before the hearing process starts.)
Callie Oettinger: So youâre telling me that weâre not going to have the conversation that we were supposed to have today, which would be for a resolution call, right, because you arenât willing to give me the citation right now.
Samantha Hollins: So in the interest of responding to your request, Iâm going to make sure that you receive that information and, subsequently, the department will be able to communicate via the pre-hearing conference call any possible arrangements for settlement agreement that can contain these terms laid out for you in complete detail.
Callie Oettinger: Ok. So Iâm basically being denied an opportunity to have a resolution meeting because 1) you guys didnât set up the terms in advance and it took me asking you and you bringing up a citation and then not actually being able to find that citation and then you bringing up another citation and not being willing to provide it to me. So thatâs very disturbing to me and that tells me . . . My impression is that youâre not willing to collaborate with me and, um, thatâs very upsetting, because I was actually looking forward to this phone call. There have been a lot of issues and I was really, you know the idea of also talking to you, Samantha, since weâve had a lot of communication back and forth, but not really one-on-one one the phone, I was actually really looking forward to having this opportunity to talk with you. Because, um, Iâve heard quite a bit about you and I thought, well, this will be good, you know? This will be a really good opportunity, but now, all of that, Iâll just be honest, turns me in the other direction and I wonder why you canât just tell me what the citation is and we can move on.
Samantha Hollins: Ms. Oettinger, the department will be more than happy to confer and make sure you have that information and have that available at our pre-hearing conference call. I look forward to speaking with you and continuing our conversation around any possible settlements of your complaint. At this point, Iâm going to end the call. Thank you so much for your participation. Have a great weekend.
Callie Oettinger: Ok. Uhp. She hung up.