Be Cautious When Writing Letters of Recommendation for Employees Accused of Criminal Misconduct

In Doe-3 v. White, 409 Ill.App.3d 1087 (4^th Dist. 2011), a case decided on April 29, 2011, the Illinois appellate court held that McClean County Unit District No. 5 ("McClean") may be liable for the injuries suffered by students at Thomas Paine Elementary School District ("Thomas Paine") after recommending a teacher accused of sexual misconduct to Thomas Paine.  The plaintiffs in this case were second-grade students at Thomas Paine who were sexually abused by Jon White, a former teacher at McClean who McClean recommended for employment at Thomas Paine.  The plaintiffs alleged that McClean administrators knew of White's misconduct but recommended him to Thomas Paine to "pass" the problem to another school district.

The primary issue before the appellate court was whether McClean owed any duty to students at Thomas Paine.  The trial court had dismissed the case against McClean on the grounds that McClean owed no duty of care toward the plaintiffs under the public-duty rule.  The public-duty rule protects governmental entities from claims brought by injured persons on the grounds that their injury resulted from the governmental entity's failure to perform adequate governmental services.  This rule has historically been applied to cases involving conduct by policemen, firefighters, and other first-responders.  However, the doctrine has also been applied to school districts.

The appellate court held that the public-duty rule should not apply under the facts alleged by the plaintiffs.  According to the court, the public-duty rule applies where the governmental entity negligently performed its ordinary governmental functions.  However, in this case, the administrators at McClean allegedly engaged in intentional egregious conduct by recommending White to Thomas Paine despite having received numerous complaints that White had inappropriately touched students.  After finding that the public-duty rule should not shield McClean from liability, the court held that McClean owed a duty of care to students at Thomas Paine.  Because it was reasonably foreseeable that White would sexually abuse students in the future, McLean owed a duty to Thomas Paine students to prevent such abuse. Based on the allegations that McLean did not report White's misconduct to DCFS and instead wrote a letter of recommendation for White, the court opined that McLean breached its duty.