March 29, 2005

ATTORNEY GENERAL OPINION NO. 2005- 10

Keith E. Schroeder

Reno County District Attorney

210 W. 1st Street

Hutchinson, Kansas 67501-5298

Re:	Crimes and Punishments--Kansas Criminal Code; Crimes Affecting Governmental Functions--Obstructing Legal Process or Official Duty; School District Officials; Interviews of Pupils on School Grounds

Schools--General Provisions Relating to School Districts--Control of School Property; Pupils; Interviews By Law Enforcement Officers

Synopsis:	Unless an investigation involves child abuse or neglect, the identity of a pupil, or a pupil being taken into custody, a school official may lawfully refuse to permit a law enforcement officer to interview a pupil on school property in connection with a criminal investigation where the pupil may be a potential witness. Cited herein: K.S.A. 21-3808; 38-1624; 38-1523;72-1033; 72-
8202b; 72-53,106.

*	*	*

Dear Mr. Schroeder:

You inquire whether a school official can refuse to permit a law enforcement officer to interview a pupil on school property in connection with a criminal investigation where the pupil may be a potential witness. You indicate that the Kansas Association of School Boards (KASB) has advised its constituents in the affirmative. We concur.

A school superintendent has "charge and control" of his or her school, subject only to the dictates of the board of education.1 The board itself has control of all school district property.2 Thus, it would appear that, absent statutory direction to the contrary, school superintendents and school boards can determine whether, and under what circumstances, law enforcement officials can come onto school property. Exceptions exist for investigations involving child abuse or neglect,3 pupil identity,4 and a pupil taken into custody pursuant to K.S.A. 38-1624.

While there are no reported Kansas appellate court decisions that address this issue, Attorneys General in two states have concluded that, absent statutory direction to the contrary, school officials are not required to comply with a law enforcement officer's request to interview a child on school premises in a criminal investigation.5 While the basis for such refusal has not been clearly enunciated, it may rest on the in loco parentis doctrine6 which places the school official in the shoes of a parent who can decide, generally, whether or not his or her child will be interviewed by law enforcement.

You also inquire whether a school official's refusal to permit a law enforcement officer to interview a pupil regarding a criminal investigation where the pupil is a potential witness would amount to a violation of K.S.A. 21-3808, which prohibits an individual from "knowingly and intentionally obstructing, resisting, or opposing any person . . . in the discharge of an official duty."

Whether a person has obstructed official duty depends upon the facts of each case.7 However, it is our opinion that securing a conviction and/or having it upheld on appeal in the situation you present would be difficult in light of Kansas appellate court decisions that distinguish between "an actual overt act of obstruction" that "substantially" hinders or increases the burden of a specific law enforcement officer8 from a refusal to cooperate9 which would not run afoul of the statute.

The other problem with sustaining a conviction for obstruction is that there must be an underlying felony, misdemeanor, or civil case in order to classify whether the obstruction is a class E felony or a class A misdemeanor.10 K.S.A. 21-3808 provides, in part:

"(b)(1) Obstructing . . . official duty in the case of a felony . . . is a severity level 9, nonperson felony.

"(2) Obstructing . . . official duty in a case of misdemeanor . . . or a civil case is a class A misdemeanor."11

In State v. Hagen,12 the defendant was charged with obstruction for arguing with a police officer and refusing to obey the officer's orders as the latter was attempting to direct traffic. The Kansas Supreme Court upheld the trial court's dismissal of the complaint because there was no underlying civil or criminal case alleged. Thus, while it is possible for a person to be liable under the obstruction statute where the underlying crime was not committed by such person, K.S.A. 21-3808 still requires an underlying felony, misdemeanor, or civil case.13

Summarizing, it is our opinion that unless an investigation involves child abuse or neglect, the identity of a pupil, or a pupil being taken into custody, a school official may lawfully

refuse to permit a law enforcement officer to interview a pupil on school property in connection with a criminal investigation where the pupil may be a potential witness.

Sincerely,

Phill Kline

Attorney General

Mary Feighny

Assistant Attorney General

PK:JLM:MF:jm