March 2, 2005 - Marana Unified School District officials recently finished reviewing the personnel files of all current employees after learning that a hall monitor with a criminal past slipped through the cracks of the district's hiring process.
The orders came under the direction of interim Superintendent Jane Pryne, who also has instructed the district's Human Resources department to review and revise its hiring policies to make sure they are up-to-date.
Pryne said officials have focused efforts on reviewing the personnel files of employees hired prior to the enactment of Arizona laws that now require criminal background checks through the Arizona Department of Public Safety.
District officials are now in the process of working a clause into employee contracts requiring that criminal background reports from the department must be on file to renew contracts. The Marana school district has 1,759 employees, including teachers, administrators, support staff members and substitutes.
"We have not found anything in those files that would be suspect at this point," Pryne said.
District records obtained by the EXPLORER indicate Marana school district officials overlooked an aggravated assault conviction and concerns by a former employer, and bypassed district procedures to allow Daniel Mena Jr.'s employment with the district in 2003.
Mena, a Mountain View High School hall monitor known by many as "Danny," was arrested Jan. 13 by detectives from the Pima County Sheriff Department's Crimes Against Children Unit for allegedly "touching" and kissing a 17-year-old female student off school grounds Jan. 11. He resigned Jan. 13.
Mena, 33, is charged with contributing to the delinquency of a minor. Though sheriff department reports indicate Mena admitted to the accusations, he pleaded not guilty Feb. 15 in Pima County Justice Court.
In January, Marana school district spokeswoman Tamara Crawley upheld what she considered an "intensive" background checking process the district follows whenever hiring new employees to the district. It later came as a surprise to Crawley and other district officials that Mena had a criminal past that included an aggravated assault conviction.
Pryne said any employees that the district finds have a similar criminal past, regardless of whether they've been stellar employees, will face review from the governing board. However, she said, the recent review did not show any evidence that there are any others like Mena in the district.
According to district records, Mena was hired by the district April 8, 2003, to fill a part-time custodial position at Marana High School, and became a full-time hall monitor at Mountain View on May 27 that year.
Crawley originally told the EXPLORER that Mena did not inform the district in writing that he had a conviction for aggravated assault when he applied for his position, though Mena did mention a felony conviction for an aggravated DUI charge.
District records are unclear about whether officials knew of Mena's aggravated assault conviction when he was hired. However, one record seems to indicate Mena made the district aware.
Mena signed an affidavit as part of his application in January 2003 stating he had never been convicted of any of a list of 25 crimes, which included - No. 21 on the list - aggravated assault, according to district records. After careful examination, district officials now think that document was later amended and initialed by Mena four days before his hiring showing that he had an aggravated assault conviction.
District officials remain unclear about the nature of that document, or about who may have had knowledge of Mena's prior conviction, which should have warranted a review of his hiring, said Bill Kuhn, president of the district's governing board.
Kuhn examined the same document obtained by the EXPLORER, which appears to have been changed on April 4, 2003, with "aggravated assault" circled from a list of crimes. He said he believed it indicated that at least one district official knew of Mena's conviction.
"This was a cause for concern," Kuhn said. "This person should not have been employed by the school district."
Attempts made by the EXPLORER to contact Mena were unsuccessful.
Katherine Rascon, who works in Human Resources, was the only person to sign the document other than Mena. She declined to comment, referring all questions to Crawley, though she did not deny having knowledge of the circumstances surrounding the document.
"If that same document came across HR today, it would not get to the governing board because that individual would not be hired," Pryne said, commenting on the district's increased hiring standards.
Kuhn said he could not recall the board ever reviewing Mena's application, and he questioned why Mena's employment was never brought to the board's attention.
Measuring the law
According to Arizona law, several criminal convictions - including aggravated assault and any domestic violence offenses - would prevent someone from being hired to fill a certified position in a school district, such as a teacher.
However, Mena was hired to fill a classified, non-teaching position, which Arizona law leaves at the discretion of the district. The law states a district "may refuse to hire" any classified employee who has been convicted of crimes against children, robbery, manslaughter, assault and various other crimes.
Arizona law, specifically A.R.S. 15-512, sets guidelines that let the district's governing board make the decision to hire such a person after a careful examination and review of several factors, said Vince Yanez, executive director of the Arizona State Board of Education.
"There's a specific list of crimes that a district has to look at that are in that statute," he said. "That statute sets out guidelines a district needs to follow."
The school district's governing board is required to take into account several factors including the nature of the crime and the potential for crimes against children, according to the law.
Violations regarding the hiring of classified personnel don't occur often, Yanez said. But when they do, the Arizona State Board of Education has several options, including disciplining any certified teachers or administrators it finds performed unprofessional acts.
The aggravated assault conviction, which district officials admit should have warranted a reconsideration of Mena's employment, was related to a domestic violence dispute between Mena and his estranged wife that occurred in 2000, according the Tucson Municipal Court records.
According to police reports, Mena followed Veronica Mena to a residential location in Tucson, where he ran into the back of her car and proceeded to argue about visitation rights regarding their son. Mena pushed his wife, who alleged that Mena also kicked her in the stomach, according to reports.
Mena was sentenced to nine months of unsupervised probation and was ordered to complete a 13-week domestic violence counseling program. A Tucson judge ordered a warrant June 3, 2003, to collect $1,250 in fines that Mena owed the court after failing to complete the program, court records show.
Personal background checks
A criminal background isn't the only factor used in choosing someone to fill a position in a school district. Marana school district policies, similar to the practices of most businesses, also call for a review of an applicant's personal and professional backgrounds.
However, district records indicate that school officials may have sidestepped another red flag, overlooking the concerns of a former employer, when hiring Mena in April 2003.
Marana High School officials had the responsibility of contacting Mena's former employers when hiring him, Crawley said. District policies require reference checks, but a bad reference doesn't necessarily prevent employment, she said.
The district's background check of Mena's past employment shows that a former employer cited concerns about him being late to work without authorization and abusing sick or personal leave policies. The same employer said he would not rehire Mena.
Mena skipped work Jan. 11 when he met off campus with the 17-year-old Mountain View student.
A 10-page police report detailing the incident suggests Mena conspired to have the girl skip school the same day he called in sick. Reports mention a flirtatious note given to Mena by the girl and another student prior to the district's Christmas break that may have signaled the beginning of an inappropriate relationship.
On Jan. 10, Mena helped the 17-year-old student get into her locker, according to police reports. The two proceeded to drive around campus in a motorized cart, which led to exchanged phone numbers and several text messages later that evening, reports show.
According to reports, the two arranged to meet at El Con Mall the next day, skipping school and work. They reportedly stayed there briefly before going back to Mena's eastside apartment, where they watched the television show "Cops."
"At that time he placed his hand on her inner thigh and started rubbing her," reports state. "Danny began kissing her neck and rubbing her abdomen."
Police reports state that Mena eventually took the girl back to the mall where "they sat in Danny's truck for 20 minutes making out."
Mena confirmed the described events and made statements taking responsibility for his actions, recognizing them as "wrong and unprofessional," police reports state.
Officials became aware of the incident the next day when the student reportedly told her bus driver. The driver contacted school officials, who then contacted police.
Mena's transfer to MVHS
District records indicate that school officials bypassed district procedures to allow Mena to transfer to a full-time position as a hall monitor at Mountain View, where he eventually met the 17-year-old student.
Officials said Mena wanted a better job, and his work ethic at Marana High School didn't give the district any reason to deny him that opportunity.
A series of internal correspondence, including e-mails sent between Marana and Mountain View administrators, detail the circumstances surrounding Mena's transfer.
District procedures should have restricted a half-time employee such as Mena from transferring to a full-time position at another school before his 90-day probationary period was over, alerted DeAnn Gibson, a human resources clerk, in an April 29, 2003, message to Marana secretary Pam Moseley.
The message was forwarded to Marana Principal Jan Truitt, who responded, "Richard Faidley and I talked about this transfer and agreed to waive the 90 day waiting period."
Faidley wrote to Human Resources Director Janice Reyher on May 5, 2003, saying, "Jan (Truitt) and I have discussed the issue and she agrees that it is in the best interest of the district to permit this person the opportunity to become a full-time employee."
Truitt, the current interim assistant superintendent, stated in an April 29, 2003, letter that Mena was a good employee and "I would rather have him remain in the district than leave."
The Marana school district governing board unanimously approved Mena's transfer to Mountain View on June 10, 2003, according to district records.
Truitt said she's now regretful for hiring Mena based on the events that occurred, but "hindsight is always 20-20."
"Those are basically judgment calls," she said. "You have to take in all the information you have about an employee. Another employer said he was fine. In hindsight, when there has been a situation not good for the students, of course you would question your decision."
Faidley recalls Mena as a hardworking employee that, until the date of the incident, had performed his job to the top of his ability.
"During the time that he was here at Mountain View, his attendance record was not a question," he said. "He was at work. He was here doing his job duties. From a job performance standpoint, I was never disappointed."
According to district records, Mena earned $10 per hour as a ticket taker and score keeper for various Mountain View sporting events. The qualifications for the hall monitor job he performed, listed in Marana school district records, include limited capabilities such as "ability to read, write, and understand simple written directions."
Faidley said Mena was one of four hall monitors at Mountian View, each of whom perform similar duties such as patrolling the perimeter of campus, delivering messages to classrooms and accepting deliveries from UPS. Faidley said he knew Mena very well on a professional level and that Mena worked closely with the administration.
Given Mena's hard work ethic, Faidley said, he had no reason to be concerned. And because Mena was transferred to his school internally, Faidley said, he assumed a thorough background check was done.
"All the background checks have been completed, so we don't initiate another set of background checks," he said about in-district employees transferring to his school. "They're already done and cleared by the district to begin work."
Hopefully, Faidley said, a re-evaluation of the district's hiring process will lead to a positive result of an otherwise unfortunate situation.
"I think this will have us look at our hiring process and evaluate what we do," Faidley said. "We as a school will try to improve the process in getting the best individuals we can to perform the job function. There's always room for improvement."
District records indicate Mena spent much of his time working with drywall before becoming employed by the Marana school district.
His Jan. 13 letter of resignation reads, "I am resigning for personal reasons. I understand that I am not to be on the Mountain View High School or any other Marana school district property for any reason."
When hiring new employees, school districts in Arizona rely heavily on the findings of fingerprint reports, which are a result of criminal background checks conducted by the Arizona Department of Public Safety in conjunction with the Federal Bureau of Investigation.
The district fingerprints all of its employees upon application and has the fingerprints sent to the Arizona Department of Public Safety, Crawley said. But the results of those reports are secret according to state law, so whether those turned up Mena's criminal record is unknown to anyone outside the district.
However, Mena was hired one month before the district obtained the results of his fingerprint reports on May 8, 2003. That district practice is no longer allowed.
When Pryne came onboard with the district last July, she initiated procedures that now require fingerprint checks be completed before an employee is hired.
"Based on that information, they either started employment or they didn't," Pryne said. "I just felt it was a safer way to do business."
When hiring a non-teaching employee who is allowed unsupervised contact with students, before receiving the results of a fingerprint report, Arizona law requires the district to take certain steps
The district must document in the applicant's file the necessity of hiring and placing the applicant before a fingerprint check could be completed; ensure that the public safety department completes a statewide criminal history check on the applicant; provide general supervision of the applicant until the fingerprint check is completed; and report to the superintendent of public instruction on June 30 and Dec. 31 the number of applicants hired prior to the completion of a fingerprint check.
District officials could not confirm that the district followed those guidelines, and could not retrieve records of any reports stating such.
Crawley said only Rick Lesko, who was assistant superintendent at the time, had access to Mena's fingerprint reports, so only he would have reviewed Mena's complete criminal history. Lesko resigned as superintendent last year and no longer works for the district.
Under today's administration, employees with felony records, domestic violence and aggravated assault convictions would not get the OK to work in Marana schools, Pryne said.
"If that information had come across my desk in May 2003, in my former position, it would have gone to the governing board," Pryne said. "And there would have been other decisions that would have been made at that point."
Lesko could not specifically recall the circumstances of Mena's hiring, but said a series of district employees could have reviewed Mena's fingerprint reports, including principals of the high schools.
"To say I would have been the only one to look at the reports would have been pretty inaccurate," he said. "There are a series of people who could have viewed those files."
Relying on the state vs. a private firm
The Marana school district once had a working relationship with MacIntire and Associates, a private investigation firm that conducts criminal background checks.
That relationship now works on an "as needed" basis, though district officials admit no such background check has been conducted for any employee entering the district in years, nor was one conducted in regards to Mena's hire.
Mena signed an agreement, as part of his application, to allow a criminal background check to be completed through MacIntire and Associates.
President and CEO John MacIntire said the district could have had a background check completed for $45, which would have shown all prior convictions, wants and warrants, and verified his Social Security number.
Even a quick Internet search of public records conducted by the EXPLORER shows that Mena had been in and out of courts for several years on minor charges, with the most serious convictions being aggravated assault and felonious drunk driving.
MacIntire and Associates, which has been in business 26 years, offers services to schools throughout the state, including those in the Phoenix Union High School District, which uses the firm each time it hires a new employee. MacIntire also does employment screening for the Flowing Wells School District.
Even if the Marana school district relied solely on fingerprint reports from the public safety department, MacIntire said, it wouldn't necessarily guarantee accuracy. MacIntire said his team takes a hands-on approach to research and record retrieval in more than 3,800 jurisdictions nationwide.
He said the state relies on courts to report information, which sometimes can lag.
"The system catches maybe the vast majority of the arrests, and at least from what we've seen, it doesn't record as many corresponding dispositions for those case files," he said. "A certain percentage of those dispositions aren't on that fingerprint report."
MacIntire expressed concerns that many industries related to education, nursing and health care are required to have criminal background checks completed, inundating the public safety department with obligations.
In the 2003-04 fiscal year, the department processed 88,736 fingerprint clearance applications, issued 84,905 fingerprint clearance cards and denied 3,831 applicants, according the state's Web site.
"It's just a shortcoming in the fingerprint system," MacIntire said. "The volume of these background checks is significant."
MacIntire, a special agent with the U.S. Office of Special Investigation before starting his company in July of 1979, said his firm's reports are more accurate through a hands-on approach, and he'd suggest more school districts go the route of a private firm.
"I've got kids in TUSD. I take it seriously," he said. "I don't need any knuckle-heads next to my kids. They have enough of them in the classroom already; they don't need one running the classroom."
MacIntire's Web site states that negligent hiring and retention litigation shows how effective employment screening and background investigations are in protecting employers from exposure to the liability associated with the behavior of their employees. "Juries have increasingly held the employer responsible for the employees' actions when a past history was not properly researched," the site reads.
"Background checks work, if they're done," MacIntire said.
School officials said neither the district nor the school has received any complaints from relatives or friends of the victim regarding the incident or the Marana school district's hiring of Mena. Pryne said she hopes everyone can move forward now that the district has learned from its mistakes.
"This is an unfortunate incident for everyone involved. And, through every unfortunate incident, there is some learning that takes place," Pryne said. "We are looking forward to moving forward."