A school district was not liable for failing to report a former employee’s past history of inappropriate contact with students to a new district that hired him, because the new employer did not ask about his employment history, a state Appellate Court has found.
In the August 2016 ruling, Child M. v. Fennes and Cedar Hill Prep School, the court weighed the issue of liability for the school district from which a teacher was allowed to leave with a neutral employment reference, despite allegations of sexual abuse of several students. The court found that while former employers have been held liable for negligent misrepresentation of a former employee’s work history, in this case the new employer, Cedar Hill, in seeking an employment reference, did not ask the previous employer, Montville School District, details about Fennes’ prior employment history.
Fennes had been employed in the Montville school district as a first grade teacher for more than twelve years, according to Child M. During the teacher’s seventh year, allegations arose that he had engaged in inappropriate physical contact with female students, including allowing them to sit on his lap; kissing them; allowing them to kiss him; and threatening to withhold his attention to keep their silence. When administration received word of his actions, according to the court, supervisors warned Fennes that his conduct was inappropriate, but Fennes responded that he was an “affectionate” person and could not stop “cold turkey.” Despite parent complaints; a suspension; withholding of an increment; and three reports to the Department of Children and Families, Division of Youth and Family Services, Fennes continued to teach and escalated his inappropriate conduct, according to the court record.
Montville did not report the escalation to the Division or file tenure charges against Fennes, according to the record. Instead, the district entered into a separation agreement in which Fennes agreed to resign and never seek re-employment in the district. In return, the district agreed to provide future employers with a neutral employment reference, limited to his dates of employment.
Fennes was then hired by Cedar Hill Prep School, where he was subsequently indicted for allegedly sexually abusing Child M. The parents filed suit against Cedar Hill, and filed suit against Montville for negligently failing to warn Cedar Hill of Fennes’ prior abusive history with young girls.
In assessing liability, the court acknowledged that the severity of the harm to the students could not be overstated; the children were allegedly sexually abused by a teacher who was known to have engaged in inappropriate physical contact with female students. In addition, the court noted that New Jersey has a clear public policy favoring protection of children from such abuse, but contrasted that policy with the obligation to ensure that the harm was foreseeable before imposing liability on the school district.
The court said the school district’s duty to protect students against harm is limited to cases where the [school district] had “particular knowledge or special reason to know that a particular plaintiff or identifiable class of plaintiffs would suffer a particular type of injury.” The court, looking at Fennes’s past history, determined that the district knew or should have known he was likely to abuse other children. Accordingly, the court found that Montville had neglected its duty to report Fennes to the Division of Child Protection and Permanency and the Board of Examiners as required by N.J.S.A. 9-8.10 and N.J.A.C. 6A:9-17.4.
However, after acknowledging Montville’s obligation to report Fennes to state entities, the court found Montville did not have an affirmative obligation to report Fennes’ conduct to Cedar Hill Prep School. The court conceded that former employers have been held liable for negligent misrepresentation of a former employee’s work history. But here, because Cedar Hill, in seeking an employment reference from Montville did not ask about Fennes’ prior employment history, Montville did not misrepresent that history to Cedar Hill. The court determined not to impose liability against Montville for its failure to report, fully and accurately, Fennes’ prior history of inappropriate conduct with young girls.
In summary, Child M. v. Fennes and Cedar Hill Prep School reinforces the school district’s statutory right to report the criminal misconduct of employees who resign or retire in the face of criminal charges. However, it fails to answer the question of the district’s affirmative obligation to provide such information to potential employers.