School Custodian Dismissed for Prior Conviction

It’s a good idea to perform background checks on anyone with access to minors.

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

Key point. Custodians often may have unsupervised access to minors, and so churches should not overlook them when screening youth and children’s workers.

An Ohio court ruled that a school could dismiss a custodian on account of a prior conviction for public indecency, since he was a person having responsibility for the “care, custody, or control” of children. An individual applied for work as a part-time custodian at a public elementary school. He failed to reveal on his employment application that he had been convicted of public indecency some twenty years earlier. The school hired the custodian, subject to a criminal records check mandated by state law. The records check disclosed the prior conviction, and the school terminated the custodian on the basis of a state law specifying that no public school “shall employ a person responsible for the care, custody, or control of a child if the person previously has been convicted of or pleaded guilty to” a designated crime (including public indecency). The custodian appealed his dismissal, and a court ordered the custodian reinstated since he “clearly was not in a position as a person responsible for the care, custody, or control of a child.” School officials appealed this ruling, and a state appeals court upheld the school’s dismissal of the custodian. The court noted that the custodian worked five-hour shifts, beginning at 2:30 in the afternoon, and that he reported to work as students were being dismissed. While his duties consisted of cleaning and maintaining school property, he had contact with students as they were leaving the school and with students who were in the school after regular school hours retrieving books and participating in after-school activities. A school official further noted that custodians were expected to intervene if they observed a student engaging in conduct that is dangerous or in violation of school rules. And, in an emergency, custodians could be entrusted with the care of children. These facts persuaded the court that the custodian was a person responsible for the care, custody, or control of a child, and accordingly the school was required by state law to dismiss him when it learned of his previous criminal conviction.

Application. This case illustrates an important point-custodians often have unsupervised access to minors. This makes them a potential risk to the safety of children. Churches that screen youth workers often overlook some positions in their screening process, including custodians. This may represent a dangerous “gap” in a church’s screening program. The case also illustrates the value of a criminal records check. The custodian in this case did not mention his prior conviction on his employment application. The conviction was discovered only when the criminal records check was performed. Finally, note that the custodian was terminated though his previous crime occurred some twenty years ago. The fact that a crime occurred many years ago does not necessarily make the applicant a lesser risk. Prete v. Akron City School District, 667 N.E.2d 73 (Ohio App. 1995). [Negligence as a Basis for Liability]

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