The state's child welfare agency says West Aurora school district officials violated state law when they did not immediately report an allegation in 2010 that a band director had an inappropriate encounter with a student.

Ten months after the alleged encounter occurred at West Aurora High School, the teacher, Stephen P. Orland, was arrested for engaging in sexual contact with two students. In March, he pleaded guilty to two counts of criminal sexual abuse and was sentenced to 12 years in prison.

A spokesman for the Illinois Department of Children and Family Services said the agency referred the district's handling of the allegation to the Kane County state's attorney's office.

The state's attorney's office has not confirmed it is investigating the matter, but at a meeting Tuesday night, the West Aurora District 129 board unanimously approved hiring outside legal counsel to represent three district staff members as part of a state's attorney's inquiry. The officials are Superintendent James Rydland, Assistant Superintendent Ed Howerton and former Assistant Principal and current teacher Mike Slou, according to school board attorney Joe Perkoski.

Board President Neal Ormond said the district would undertake its own immediate review of the matter. Late last month, the district issued a statement standing by an earlier investigation it conducted and its decision not to notify DCFS.

"Schools and institutions often incorrectly assume that it is their option to first investigate and make their own determination on the credibility of an allegation," DCFS spokesman Kendall Marlowe said last week. "That is not Illinois law. The law in this state requires that if you have reason to suspect a child is being abused or neglected, you call."

There are varying accounts of what happened. In its statement last month, the district said it had conducted a thorough investigation of the 2010 allegation and found it did not have sufficient information to take any disciplinary action against Orland. The district said that although Orland was alone with the student, "no physical contact ... occurred." Officials concluded they didn't need to notify DCFS of the allegation.

However, a district employee who made the allegation said Thursday he told the school's principal in two interviews that he saw Orland touch the girl. Leon Smith, 63, a longtime West Aurora High School custodian, said he was locking up the building in July 2010 when he heard "giggling and talking" coming from a dark room. When he looked inside, he found Orland with a young female. He said the lights in the room were not on, but hallway lights were.

"He had his hands up on her," he said, adding the girl then started "fixing herself" when they saw him.

He said Orland tried to run but had nowhere to go and insisted to Smith that nothing inappropriate had been taking place.

Details about the incident also appeared in court documents filed by Kane County prosecutors after Orland's arrest. "A janitor," prosecutors wrote, saw Orland "hugging the female student." Prosecutors said Friday they could not disclose the source of that information.

Smith, who is now retired, said his supervisor, Slou, was on vacation at the time. Smith said he told Slou about the incident a week later, though Slou said Thursday it was more like two weeks.

Slou, who now teaches at the school, said he ran the gamut of questions with Smith: Was there touching? Kissing? Holding hands? Fumbling with clothes? He said Smith answered "no" to each and could provide only a vague description of the girl. Within an hour of speaking to Smith, he took the matter to then-Principal Dan Bridges, who interviewed Smith twice and then took the matter to Rydland. The district also consulted with its attorney.

In their statement last month, district officials said they were not made aware of any touching and did not have enough of a description to identify the girl even after checking band schedules and security camera footage from an adjoining hallway. Orland was in the building giving music lessons, they said.

"As a result, the district did not have an alleged victim or any allegation from a student or parent of improper conduct, nor did the observation of the custodian show improper conduct," the statement said. "No report was made to DCFS as the facts would not support an allegation of abuse or neglect. Teachers are alone with students on numerous occasions."

School officials spoke with Orland about the allegations and warned him that he should not be in situations alone with students that "could be misconstrued."

When asked about the janitor's account that appeared in court records, a district spokesman said Friday, "The district cannot comment on this matter because of possible litigation."

Smith said he believes officials should have called DCFS regardless of whether Orland actually touched the girl.

"All they (administrators) had to do was call and investigate and they would have stopped it there," he said. "They can say whatever they want. It was enough evidence to have him on leave and check it out."

By law, Marlowe said, everyone aware of the incident from Smith to the superintendent would be considered "mandated reporters" who were required to call the DCFS hotline, even without a detailed description of the student.

"It is not expected when someone calls the hotline that they have all the details and that shouldn't stop the call from being made," Marlowe said.

He said a call coming from a mandated reporter could carry extra weight, and if there is enough "specific and actionable information," it would open an investigation.

Smith said he did not know he was a mandated reporter and thought taking his report to his supervisor was the proper course of action.

When another employee observed Orland having what appeared to be inappropriate conduct with a student later in the school year, the district immediately contacted DCFS and police. The district put Orland on leave, then fired him. Further investigation led to Orland's arrest.

Prosecutors said Orland had sexual encounters with two female students, although it is not clear if one of them was the girl Smith alleges he saw. They also accused Orland of sending thousands of intimate text messages to the students as well as leaving notes in their lockers. .