In situations involving the conduct of an employee, who’s at fault for negligent conduct? In Minor Doe 601 vs Best Academy, the Minnesota Supreme Court discussed municipal tort liability and the application of discretionary immunity.

Aaron Hjermstad was hired as a physical education teacher and basketball coach at Best Academy, a charter school.  Contrary to their general hiring protocol, Best Academy did not contact prior employers, check references or require letters of recommendation from Hjermstad during the hiring process. In his position immediately prior to Best  Academy, Hjermstad had been accused of sexual abuse of a minor student. However, an investigation was not able to substantiate the allegations and no criminal charges were filed against him following the complaint.

Plaintiff Minor Doe (the Plaintiff) was a student at Best Academy and on the basketball team coached by Hjermstad.  The Plaintiff and other students accused Hjermstad of sexual assault. The allegations ultimately resulted in a criminal sexual conduct conviction.

The Plaintiff sued Best Academy for negligent hiring. This Minnesota District Court dismissed the Plaintiff’s claims on summary judgment concluding that pursuant to Minn. Stat. § 466.03, subd. 6, municipalities have broad and complete immunity from liability for hiring decisions. The Minnesota Court of Appeals agreed.

The Minnesota Supreme Court reversed the decisions of the lower courts, finding  the Minnesota Municipal Tort Claims Act presumes liability for torts of a municipality by its officers, employees or agents acting within the scope of employment to implement the “ordinary day-to-day operations of the government.”  On the other hand, Discretionary Immunity is a narrowly applied exception to general liability for decisions that involve questions of public policy and require a balancing of policy objectives “such as the financial, political, economic, and social effects of a given plan or policy.” In such cases, a municipality  bears the burden of establishing discretionary immunity is applicable to its conduct.

The court further explained that an evaluation of whether the decision involved a balancing of policy objectives, and is subject to immunity, is a fact-specific analysis.  Accordingly, there are not broad categories of conduct, such as hiring decisions, that are categorically subject to discretionary immunity. In addition, discretionary immunity cannot be used to “shield conduct which  clearly violates” a policy or rule, even if development and implementation of the underlying policy required a discretionary balancing of policy objectives.

The court concluded there was no presumption that hiring decisions are a discretionary function subject to immunity and the record did not establish Best Academy had engaged in policy level decision making during the process.  Further, there was no evidence that development of hiring protocol, the failure to follow the protocol and the ultimate decision to hire involved a balancing of policy objectives that would trigger discretionary immunity.

This decision should serve as a warning to employers that they must be diligent in adhering to their hiring practices.   While all claims cannot be avoided, attention to operational practices is the best insurance to avoid costly incidents, such as this. If you or your organization have questions regarding best employment practices, call Wiley Reber Law for hiring advice that works.