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.

Not true.

The United States Department of Ed’s 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 “Question 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.”

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 doesn’t 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 Ed’s OSEP MEMO 13-08

The transcript and audio for that meeting follows below.

00:00:00

Automated voice: … other participant in meeting.

0:00:04

Callie Oettinger: Hello?

00:00:06

Samantha Hollins: Hi. This is Sam Hollins with the Virginia Department of Education.

00:00:10

Callie Oettinger: Hi, Sam. Callie Oettinger.

00:00:12

Samantha Hollins: Hi Ms. Oettinger. How are you doing today?

 00:00:14

Callie Oettinger: Good. Thanks.

00:00:16

Samantha Hollins: Good. Well as I understand, we scheduled today’s 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

00:00:31

Callie Oettinger: Um, I believe that’s on you guys to offer the resolution. I think that you’re 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 I—and, oh, first, before we get going . . . Am I on speaker phone?

00:00:54

Samantha Hollins: Yes. I’m in my meeting and yes that’s a great point. Thank you so much. Here it’s myself. Pat Haymes. We are all (audio cut out) this session. Can you also confirm that you’re (audio cut out) recording?

00:01:07

Callie Oettinger: I’m sorry. You said—you cut out—you said you, Pat Haymes and you’re recording?

00:01:13

Samantha Hollins: I said we are not recording.

00:01:15

Callie Oettinger: Oh, you’re not, oh you’re not recording. Ok. Um. I—

00:01:19

Samantha Hollins: We’re asking that you are also not recording as the resolution session is confidential. 

00:01:23

Callie Oettinger: Oh, so my understanding is that you can record resolution sessions.

00:01:29

Samantha Hollins: That is not the case.

00:01:30

Callie Oettinger: Wha—

00:01:31

Samantha Hollins: There is a state regulation.

00:01:32

Callie Oettinger: Where? What state regulation is that, because I understand that you can’t do it with mediation, but you can do it with resolutions, so can you point me to the state regulation that says I can’t record a resolution meeting?

00:01:45

Samantha Hollins: Sure. I’ll be able to provide that specific citation for you, but while I’m working on that, can you confirm that you’re not recording?  

00:01:52

Callie Oettinger: No, I can’t confirm that, because my understanding is that I’m allowed to, so if you could let me know where it shows I can not, then I’d be happy to stop recording. 

00:02:04

Samantha Hollins: Ok. Just a second.

00:02:06 to 00:07:20

Silence for five minutes while VDOE put me on hold.

00:07:20

Samantha Hollins: Ms. Oettinger, You still there?

00:07:21

Callie Oettinger: Yeah, I am.

00:07:22

Samantha Hollins: Great. And I heard another entry point. Did somebody else join our call?

00:07:26

Callie Oettinger: Nope. Just me.

00:07:28

Samantha Hollins: Ok. Great. So . . . Um . . . Actually, you are correct. I don’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, 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 you’ll let me know that, we can, we can move on accordingly.   

(In any conversation, parties can ask that they be confidential, however, that doesn’t dictate that recordings be prohibited. In addition, there’s 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.)

00:07:57

Callie Oettinger: Which, um, and, and, can you tell me where in IDEA 2004 you’re pointing to? I just want to make sure, again, that we’re on the exact same page. 

00:08:05

Samantha Hollins: And I’m sorry. I don’t understand your question.

00:08:08

Callie Oettinger: What regulation? You said implementing regulations. What are you referring to? What exactly? What’s the statute number?

00:08:20

Samantha Hollins: Yes, I will be able to get that for you as follow up. I’m quite honestly not going to take the time now to do it. If you tell me that you’re in agreement, that you’d like to engage in this conversation, without recording, then we can do that. If you’re not amenable to that, please let me know and we can stop the conversation now. 

00:08:36

Callie Oettinger: Ok. So you’re telling me that you’re not amenable to having a conversation that’s not recorded.

00:08:43

Samantha Hollins:  That is correct.

(This is confusing, because she just agreed that she’s only amenable to conversations that are recorded, even though she stated the opposite previously.)

00:08:44 to 00:08:49

Silence.

00:08:49

Samantha Hollins: But if you’d like to have a conversation that is not recorded to discuss possible resolutions, we are more than happy to do that at this time.

00:08:59

Callie Oettinger: Ok. . . (laugh here) I just, I just said to you, “You’re amenable to not, to having a conversation that’s not recorded. Ok. And, but you’re not amenable to having a conversation that’s recorded. So, if I don’t agree to it, you won’t have the conversation. You won’t hold the resolution. Is that correct?

00:09:24

Samantha Hollins: So I’ll 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.

00:09:39

Callie Oettinger: So can you just point that out to me, where that would be a dealbreaker, because I’d like to see that as well. If you’re 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 can’t stand in the way of it. So if you’re 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, I’d like to know where that’s stated in the law.

00:10:14

Samantha Hollins: So as I stated, in the IDEA implementation regulations—and I will follow up with the specific citation when I have a chance to do that—it 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 didn’t exist, but now cites another, but doesn’t  know what it is and refuses to provide it. She tries, again, to use one option – that of discussing confidentiality – 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. )

00:10:43

Callie Oettinger: You’re telling me about something that exists, but you’re not able to tell me where it is, so I’m assuming that, since you put me on hold for such a long time and you couldn’t find Virginia regulations, you came back and you’re now citing some other regulations, but you can’t tell me what they are and where they’re at. So that raises a concern for me, because my understanding is that I am able to. So if you just, please—I know you don’t want to waste time—but I very much want to talk with you. I’d love to come to a resolution with you, but at the same time I need to understand—and it’s really unfortunate—that this wasn’t put forth by you guys in advance. I mean, you’re the ones who just started the meeting without even talking about any of this. I’m the one who had to ask, “Am I on speaker phone,” and ask who else was in the room. So that’s something that usually people start off right away. And you didn’t. 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 you’re going to cite something to me, that’s going to end with me possibly not having this conversation with you, I’d like to know where it is. And, again, you had the opportunity to contact me about all of this in advance and you didn’t.  

00:12:03

Samantha Hollins: So Ms. Oettinger, I told you that we would provide that information to you following the call. However, I’m trying to understand you. It seems you are not willing to not record the session.

00:12:12

Callie Oettinger: Well. What I want to know is where you’re telling me it exists. Because, for you giving it to me after the call, means I might now be pushed—if you’re telling me the only reason I, the only way I can have this call with you is if I stop, you know, if I don’t record—that puts me in a—and you won’t give me the citation until after the phone call that pushes my hand into not having my option to record, because you won’t do it. You won’t talk to me. Now if you’re willing to give me the citation in advance right now, then we can discuss it and I can understand it. But, I don’t like having my hand pushed because you’re giving me, you’re telling me there’s a citation, yet you’re not actually able to tell me what that citation is. And, it seems to me that you’re actually refusing to give it to me until after our conversation takes place.    

00:13:05

Samantha Hollins: Ms. Oettinger, this call is not about disagreeing or having a call about implementation regulations regarding a resolution.

00:13:12

Callie Oettinger: I understand that, but if you’re telling me that I can’t have a conversation with you if I’m recording, and then you’re going to cite a citation related to that, then I need to know what that citation is. I’d love to go straight into having this conversation about a resolution, but I find it, um actually pretty disturbing that you didn’t come to the table in advance with all of this stuff set up. I mean, I don’t feel like that’s 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 I’ll 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 you’re referring to that’d be great.

00:14:01

Samantha Hollins: Ms. Oettinger, first of all it’s really hard to have a conversation when you interrupt me when I’m trying to communicate with you, so I would appreciate if you would stop interrupting me as I’m speaking. As I have stated, the department – not in any way to misconstrue that this would be so big of an issue – 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 you’re 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.

00:14:41

Callie Oettinger: This isn’t based on my inability to uh not cooperate. This, I see it as your inability to not cooperate. You cited. You said there’s a citation. You put me on hold for a long time. You couldn’t come up with that citation and then you told me there’s another citation. All I’m asking for is, “What is that citation”. 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, I’m just asking, “What’s that citation?” If you say there is one, I don’t understand why you’re 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 weren’t prepared at all for this conversation since none of this was set up in advance. These are discussions which should have happened. In advance.

00:15:46

Samantha Hollins: Ms. Oettinger, I’m sorry if I’m 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.)

00:16:08

Callie Oettinger: So you’re telling me that we’re not going to have the conversation that we were supposed to have today, which would be for a resolution call, right, because you aren’t willing to give me the citation right now. 

00:16:26

Samantha Hollins: So in the interest of responding to your request, I’m 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.

00:16:40

Callie Oettinger: Ok. So I’m basically being denied an opportunity to have a resolution meeting because 1) you guys didn’t 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 that’s very disturbing to me and that tells me . . . My impression is that you’re not willing to collaborate with me and, um, that’s 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 we’ve 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, I’ve 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, I’ll just be honest, turns me in the other direction and I wonder why you can’t just tell me what the citation is and we can move on. 

00:17:50

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, I’m going to end the call. Thank you so much for your participation. Have a great weekend.

00:18:11

Callie Oettinger: Ok. Uhp. She hung up.