Coach on leave amid videotaping allegations

Kevin Flanigan

As the Beaumont Independent School District West Brook High School  Bruins prepped to take the football field against a third-round playoff opponent Thanksgiving weekend, the head coach who brought them that far was not on the sidelines. Word around the water cooler quickly turned to what could prompt such an absence, and it wasn’t long before it was revealed that campus athletic director Kevin Flanigan was on paid administrative leave amid allegations of videotaping in the locker room. Initial reports contend the  taping was undertaken to catch a thief.

True or not, and regardless of what happens now, Flanigan will forever carry the stain of a public investigation. And his very livelihood and career are jeopardized by just the implication of such impropriety.

“There really never is a good time to prematurely speculate,” BISD Police Department Chief Rob Flores said of third-hand statements he too has heard of the alleged incident. “We’re still in the early stages of this investigation, and there is still investigative work to be completed.”

The veteran lawman said that he could not divulge specifics of the still-open investigation, but could clarify some aspects of what is going on with the situation at hand.

According to Flores, BISD PD was called to West Brook High School by campus personnel – not a parent or student.

“Nov. 17, we were called to go to the campus,” he said. “The same day, we started the investigation; that’s when we were first made aware of the situation.”

Flores said that no other policing agency has been called in to assist with the investigation – such as federal authorities, who investigate child pornography – and he doesn’t foresee the need to bring in any outside policing assistance, he added.

“Like every case, if we feel like we need assistance, we will do that,” Flores said. “At this point, we have not found that we have that need.”

Initial reports of the event that led to the police investigation indicate that Flanigan set up video recording in the football locker room to catch a thief who had been targeting players. However, according to the BISD police chief, no incidences of stolen items from the football locker room had been reported to his department prior to Nov. 17.

“Maybe a few months ago, there was a theft or burglary from the baseball field house,” Flores said of a separate still-open investigation of theft at West Brook. “There were no reports of theft at the football locker rooms. Our department was not made aware of it if there were any thefts.”

Should the theft reports be true, Flores says, video recording in a locker room is still not permitted under Texas law.

“There are criminal implications of recording in a locker room area,” Flores said, as “obviously there are some places that are off limits.”

According to the Texas Penal Code, video recording in a locker is a crime under “Title 5: Chapter 21: Sexual Offenses.” Along with voyeurism, child sex abuse and human trafficking, Title 5 crimes include “Invasive Visual Recording,” which is what Flanigan is accused of doing.

“A person commits an offense,” outlined under the sex crimes statute, “if, without the other person’s consent and with intent to invade the privacy of the other person, the person: photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room: (A) without the other person’s consent;  and (B) with intent to: (i) invade the privacy of the other person;  or (ii) arouse or gratify the sexual desire of any person.”

For the purposes of the law, the penal code clarifies, “changing room means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas.”

No exceptions to the law are given and any video recording in “changing room” areas is strictly forbidden. An offense under the charge of invasive visual recording is a state jail felony, punishable by confinement in a state jail for not more than two years and not less than 180 days and a fine not to exceed $10,000.

Prior infractions sparked by a “pursuit of justice” have been met with findings of guilt.

In 2012, prosecutors said school principal and parent Wendee Long of Fort Worth had one of her daughters plant a cellphone camera in a girl’s locker room during halftime of a game to catch a coach yelling at the players. The camera did not catch any illegal activity – other than that attributed to the illegal videotaping. Long was arrested, sentenced to three years of probation, and has been in a legal battle to challenge the ruling ever since.

In 2013, a 12-year-old girl was convicted of the felony “improper photography” for taking a photo of another girl, not nude, in a Harris County school’s locker room.

A good example setting precedent is Brannum v. Overton County School Board circa 2008, where videotaping in a locker room was discovered (in 2002), and a group of parents filed suit against the school board claiming constitutional rights violations. In their suit, the parents alleged that school officials violated the students’ constitutional right to privacy by installing and operating video surveillance equipment in the boys’ and girls’ locker rooms and by viewing and retaining the recorded images.

“Applying this balancing test, the court ruled that even though students have a diminished overall expectation of privacy, this does not mean that a student’s expectation of privacy is nonexistent,” the court held. The students using the locker rooms, the court further ruled, “retained a significant privacy interest in their unclothed bodies and could reasonably expect that no one would videotape them without their knowledge while they changed their clothes for an athletic activity.”

But criminal and civil liability are not the only concerns when an educator is accused of improper videotaping. Texas Public Education Code states that, “A school district, open-enrollment charter school, or shared services arrangement shall discharge or refuse to hire an employee or applicant for employment if the district, school, or shared services arrangement obtains information through a criminal history record information review that the employee or applicant has been convicted of a felony offense under Title 5, Penal Code …” An employee discharged under this section is considered to have been discharged for misconduct for purposes of the Labor Code, and further sanctions can be imposed on any entity that continues to employ an educator charged and convicted of such a crime.

The Texas Association of School Boards (TASB) contends that, “State law requires a district to refuse to hire or to terminate a person, as applicable, if the person was convicted of one of the following offenses and the victim was a minor or student at the time of the offense: a felony under Texas Penal Code Title 5 (crimes against the person), or an offense requiring registration as a sex offender.

“The district may make an exception if: the offense is more than 30 years old, and the person has satisfied the terms of the court order entered on conviction.”

TASB explains that the statute requires a conviction, however, and “mere arrest, indictment or deferred adjudication are not covered by the mandatory restrictions.”

State Board of Educator Certification stipulations on the matter are subjective, and could allow for certification revocation even if charges are never filed and there is no conviction.

Which leads to the dual investigation currently underway at BISD. According to BISD Special Assistant to the Superintendent Nakisha Burns, the administrative investigation is being undertaken by Assistant Superintendent for Secondary Administration Dr. Shannon Allen.

“We’re still looking at the initial pieces of an investigation – looking at it to see if it would warrant an investigation (and) whether to go ahead and move forward,” Allen said of where she’s at in the process. Although the criminal investigation was formed Nov. 17, the coach was not placed on administrative leave until Nov. 22.

“Administrative leave is basically the same thing as a suspension,” Allen clarified, and further said that, “once we complete our investigation, we will determine what actually happened and what the consequence would be for that employee…. and based on those results we will make sure that the proper procedure is followed.”

When she’d complete her investigation, Allen couldn’t be certain, but she did say it wouldn’t be until after the criminal investigation is finalized.

“We owe it to all parties involved to conduct a thorough investigation,” Chief Flores said, adding that he understood the frustration mounting in the community as BISD stakeholders look to school administration for answers as to what took place, who was harmed, and what will be done about it. “The desired outcome is justice, and we will not rush to get there.

“We will make reasonable decisions as how to proceed. Waiting is not easy; it’s frustrating; but if we rush, we can make mistakes – and no one wants that.

“But we can assure the staff, the parents and the students that we will conduct a thorough investigation, and the evidence will make all the statements we need when it’s done.”

Flores said that anyone with any relevant information is asked to call the school district at (409) 617-7000.

“No piece of information is too small,” he said.

A phone call placed to Flanigan’s cell phone was not answered or returned by press time.

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