Gallagher v. Tucson Unified SD (CA2 5/13/15)

Holding that although a statute requires school districts to do background checks, if they don’t then another statute protects them from the results of hiring known sexual predators to work with your children.

A teaching assistant was convicted of creating child pornography using one of his profoundly-disabled young students. It turned out that the assistant’s last employer had fired him for making inappropriate advances. The student’s parents sued TUSD for negligent hiring and supervision. TUSD won summary judgment based on 12-820.05(B). The parents appealed; the Court of Appeals affirms.

The statute: “A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee’s propensity for that action.” A special action taken earlier in this case established that the public entity’s knowledge must be actual, not constructive. The trial court dismissed the parents’ claim that TUSD was vicariously liable for the assistant’s acts. But they argued that the statute does not apply to their action against TUSD for its own negligence.

The court rules that it does. There was no evidence of actual knowledge. Evidence suggested, the parents contended, that TUSD hadn’t (in violation of a statute) contacted the previous employer; if so, the court indicates, that would simply confirm its lack of actual knowledge. The statute “does not include any language that would limit the public entity’s immunity based on the type of action or inaction by the entity that contributed to the injury.” Because it considers the statute clear the court declines to consider the parents’ arguments based on legislative history, policy, and comparison with other statutes.

The court omits any language along the lines of “this results in asinine policy but it’s the legislature’s fault, not ours.” Although we don’t approve of gratuitous shots at legislators and do approve of respect for statutes, some acknowledgment that the result is problematic would give us greater assurance that the court sees the problem. The suspicion is of course that to bureaucrats their immunity for violations is a feature, not a bug.

(link to opinion)