• Key point. The appropriate response to incidents of misconduct involving youth workers will depend on a number of factors, including the nature and severity of the conduct, how long ago it occurred, and the strength of the evidence.
1. A Minnesota court ruled that a school district acted properly in dismissing rather than temporarily suspending an elementary school custodian for inappropriate behavior with children. This case will be relevant to church leaders in deciding the appropriate punishment for volunteers or employees who engage in similar behavior. These questions are often very difficult for church leaders to resolve, and so any guidance from the civil courts is instructive. The custodian in this case was accused of multiple acts of misconduct involving elementary age children, including (1) allowing two children to explore the roof of the school, unattended, though the roof lacked any fencing; (2) twirling children around even after they begged him to stop because he was hurting them; (3) giving money to young children for “helping” him with his duties; (4) playing “flashlight tag” in the darkened school building with 8 children following the close of a school day; (5) hiding under a teacher’s desk with a girl while playing flashlight tag (he later hurt the girl when he grabbed her and lifted her off the ground); (6) participating in a “water fight” with 5 children, chasing them through the school’s hallways while throwing cups of water at them. School officials were tipped off to the custodian’s behavior when a parent complained. The custodian was immediately suspended pending an investigation. During the investigation, school officials learned for the first time that the custodian had previous criminal convictions for trespassing, burglary, and invasion of privacy, and was a suspect in several rape cases. School officials dismissed the custodian based on his behavior with the children, his criminal record, and “misconduct with women” (referring to the rape allegations).
The custodian appealed his dismissal to a state civil rights commission. The commission decided that dismissal was an excessive and inappropriate response because of the following “extenuating circumstances”: the custodian was a good employee with an excellent work record, and an excellent role model; this was his first disciplinary incident; no rules existed governing the interaction of employees with children; and, the school’s decision was based in part on the prior criminal convictions and the unproven rape allegations. The commission concluded that a 90-day suspension was an appropriate sanction. The case was appealed to a state appeals court, which reversed the civil rights commission’s decision and upheld the school’s dismissal of the custodian.
The court rejected each of the “extenuating circumstances” noted by the commission. First, it disagreed that the custodian was a good role model for children. This conclusion was at odds with giving children money to help him with his work, playing flashlight tag with children in a darkened school building, and urging children to go to the school’s unprotected roof and telling them to lie about it if they were later questioned. Second, the court rejected the commission’s conclusion that the custodian should be treated leniently since this was his first offense. It noted that “in an elementary school setting where his conduct directly affects young children, [the custodian’s] numerous acts of misconduct constituted gross and repeated misconduct … sufficiently serious to warrant immediate dismissal.” Third, the court rejected the commission’s conclusion that the school’s lack of rules governing interaction between employees and children made dismissal too harsh a remedy. It observed: “It is common sense that children should not be allowed on the roof of the school, janitors should not play flashlight tag with the children in the darkened school building after hours or have water fights with the children, and that physically handling and hurting the children is not appropriate.” Fourth, the court rejected the commission’s conclusion that the school should not have based its decision to dismiss the custodian on his previous criminal record or the unproven rape allegations. It noted that school officials insisted that they would have dismissed the custodian even without knowledge of the criminal record or rape allegations, and that this information had little if anything to do with the decision to dismiss.
Application. This case illustrates several important points: (1) It demonstrates the importance of immediately suspending an employee or volunteer who is accused of inappropriate behavior with children. An investigation into the charges can then be conducted, after which the person’s status can be determined. Note that if the charges involve child abuse, then church leaders must immediately determine if a reportable offense has occurred. Check with a local attorney to be certain you are complying with state law. If you report child abuse to state authorities, then the church ordinarily should discontinue its investigation pending the outcome of the state’s investigation. (2) This case demonstrates that employees and volunteers may be dismissed for inappropriate conduct with minors not involving sexual contact. While sexual misconduct has received the most attention in recent years, there are other kinds of behavior involving children that warrant dismissal. (3) The court strongly inferred that unproven rape allegations surfacing after a public school employee is hired would not be a sufficient basis for dismissing the employee. Not every court will agree with this conclusion. Our consistent recommendation has been to investigate such allegations to the extent possible. Contact the police department or local prosecutor, and ask for information regarding the allegations. Often, they will be willing to provide you with sufficient details for you to take action. The evidence may not yet be strong enough for a criminal prosecution, but it may be enough for a church to remove a person from a position of contact with innocent and defenseless children. Again, the counsel of a local attorney is essential in such cases. (4) Some criminal convictions do not necessarily disqualify a person from working with children. Neither the school officials nor the court in this case seemed concerned about the custodian’s prior criminal convictions for trespassing, burglary, or invasion of privacy. These crimes do not involve personal assaults or injury, and are less strongly correlated with child molestation. The relevance of some crimes is unclear. Our recommendation is that you contact your state agency that licenses child care centers, and ask for a list of crimes that disqualify persons for employment. By basing your decisions on the state’s own guidelines in the context of licensed child care centers, you are reducing your risk of being found liable for negligent hiring. Wagner v. Minneapolis Public Schools, 569 N.W.2d 529 (Minn. App. 1998). [Termination of Employees, Negligence as a Basis for Liability]
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