Can a school board be held liable for failing to report a former employee’s history of inappropriate conduct with children to a new school district? This is the question answered by the Appellate Division in an August 2016 decision, Child M. v. Fennes and Cedar Hill Prep School.
In this decision, the court had the opportunity to decide whether to impose liability on an employee’s former school district where, upon separation from service, a tenured teacher was provided a neutral employment reference, despite allegations of having sexually abused several female students.
Background In the case of Child M., Jason Fennes had been employed in the Montville School District as a first grade teacher and track coach for more than 12 years. During his seventh year, allegations arose that Fennes engaged in inappropriate physical contact with female students. Fennes allegedly allowed students to sit on his lap, touch his legs, thighs and buttocks; kissed them and allowed them to kiss him; and threatened them or withheld his attentions to keep their silence.
No “Cold Turkey” When district administration received word of his actions, supervisors warned Fennes that his conduct was inappropriate, but Fennes responded that he was an affectionate person and would not stop “cold turkey.” Despite parent complaints, a suspension, withholding of an increment and three reports to Department of Children and Families, Division of Youth and Family Services (now Division of Child Protections and Permanency, or DCP&P), the behavior continued. Moreover, after DCP&P’s initial investigation concluded that the allegations were unfounded, Fennes escalated his inappropriate conduct. While Montville subsequently became aware of the escalated conduct, the school district never reported that conduct to DCP&P and never filed tenure charges against Fennes. Instead, the district entered into a separation agreement in which Fennes agreed to resign and never seek re-employment in the district and in return, the district agreed to provide future employers with a neutral employment reference, limited to his dates of employment.
Fennes left Montville for a position at Cedar Hill Prep School. The prep school interviewed Fennes and obtained a list of references, which did not include anyone employed by Montville. Cedar Hill administrators checking Fennes’ references in Montville only asked for and received his dates of employment.
Guilty Pleas Fennes subsequently pleaded guilty in state Superior Court to sexually abusing Child M., a student in the Cedar Hill school. In September 2016, he also pleaded guilty to sexually molesting four second-grade Montville girls between 2005 and 2008, and to having sex with a 15-year-old female from Butler High School when he was coaching track there in 1997. Separate courts sentenced Fennes to serve at least 11 years of a 14-year sentence and to register as a sex offender under Megan’s Law.
Prior to the recent guilty pleas, the parents of Child M. filed suit against Cedar Hill Prep School based on Fennes’ predatory conduct. The complaint included a separate count against Montville for negligently failing to warn Cedar Hill of Fennes’ prior abusive history with young girls. The suit alleged that Montville was negligent for failing to report Fennes to DCP&P; entering into a non-disclosure agreement with Fennes; and failing to warn potential employers of Fennes’ conduct. The trial court found that Montville had no affirmative duty to warn future employers of Fennes conduct, and dismissed the parents’ complaint. On appeal to the Appellate Division, the parents argued that the trial court was in error when it determined that Montville had no duty to warn potential employers of Fennes sexual proclivities.
Liability Assessed In reviewing the claims, the Appellate Division acknowledged that the severity of the harm to the girls Fennes abused 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 the severe harm and a clear public policy to prevent child abuse against the obligation to ensure that the harm was foreseeable, before imposing liability on the school district.
The Appellate Division explained that the school district’s duty to protect students against harm is limited to cases where the school district had particular knowledge or 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 that he was likely to abuse other young female students. Accordingly, the Appellate Division found that Montville 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.
Although Montville made initial reports to DCP&P when it first discovered Fennes’ offensive conduct, when it subsequently became aware of continuing or escalating conduct, it failed in its statutory duty, according to the Appellate Division, to file supplemental reports of the additional allegations with DCP&P. In addition, the Appellate Division noted that the statutory reporting obligation arises when a tenured teacher, who has been accused of criminal charges, resigns from his or her teaching position. The reporting requirement is not dependent upon the filing of tenure charges against the staff member.
Weighing the Obligation Despite acknowledging Montville’s obligation to report Fennes to state entities, the court decided that Montville did not have an affirmative obligation to report Fennes’ conduct to the Cedar Hill Prep School. The court reasoned that former employers have only been held liable if those employers negligently misrepresent a former employee’s work history. Because Cedar Hill, in seeking an employment reference from Montville, did not ask about Fennes’ prior employment history, the court determined that Montville did not misrepresent that history. The court determined not to impose liability against Montville because the district’s failure to report was distinguishable from negligent misrepresentation.
Finally, the Appellate Division noted that while Montville may not have had an affirmative duty to report Fennes’ conduct to Cedar Hill, this finding did not mean that the school district should completely escape liability. The Appellate Division determined that if the matter proceeds to trial, a reasonable jury could find that Montville’s failure to take steps to prevent Fennes from obtaining employment in another school district, and/or its shielding of Fennes’ conduct from disclosure to other employers, could subject Montville to liability in a negligence claim. The Appellate Division held that a reasonable jury could find Montville’s failure to take appropriate action caused the abuse suffered by Child M. and could therefore impose liability against Montville for that failure. Accordingly, the Appellate Division reversed the trial court’s dismissal of the parent’s complaint, thereby paving the way for continued litigation of this matter.
Question Remains While the Appellate Division clarified a school district’s reporting obligations in responding to an employment reference, the Child M. decision left open the question of a school district’s affirmative obligation to respond to inquiries from a potential employer. The question remains as to whether a former school district who simply fails to respond to employment history questions can be found negligent if a child subsequently becomes a victim of that former employee, where a predatory history of inappropriate conduct is in the former school district’s personnel file.
In summary, in Child M. v. Fennes and Cedar Hill Prep School, the Appellate Division found that Montville violated a clear statutory and regulatory obligation to report allegations of child abuse to DCP&P and to the State Board of Examiners. The court also found that while Montville may not have had an affirmative duty to report Fennes’ conduct to the hiring school district, a jury could find that the school district’s failure to make required reports to appropriate state entities was a cause of the injuries eventually suffered.
The court also noted that a school district could be held liable for negligent misrepresentation where the district unreasonably provided false or inaccurate information, which was then relied on, and resulted in damage to a student. The court stopped short, however, of stating that the former district had an affirmative duty to report an employee’s abusive behavior to a prospective new district, when the new district fails to ask.