Brooke R. Whitted Shermin S. Ali-Andani

Whitted, Cleary & Takiff LLC3000 Dundee Road

Northbrook, IL 60062Office: (847) 564-8662

Fax: (847) 564-8419 www.wct-law.com

THE DUTY TO INFORM A PROSPECTIVE SCHOOL EMPLOYER OF A PRIOR

HOTLINE CALL MADE BY A FORMER SCHOOL

EMPLOYER:

IS THIS DUTY APPLICABLE TO

PRIVATE SCHOOLS?

INTRODUCTION

This memo addresses the duty of a private school to inform a prospective employer school of a prior hotline report made by a former employer school. Specifically, we address the following question, and have included the short answer below, before detailing our analysis:

Q. Whether pursuant to the Illinois Abused and Neglected Child Reporting Act (hereinafter “ANCRA”), 325 ILCS 5/1 et seq., a private school is required to report to potential employers of the subject of the report, that a report has been made pursuant to ANCRA with regard to allegations of abuse and/or neglect.

A. The short answer to this question is NO.

ANALYSIS

As part of our analysis of the question stated above, we have conducted a review of ANCRA, its implementing regulations, and the Illinois School Code (hereinafter “School Code”), 105 ILCS 5/1-1 et seq.

Pursuant to ANCRA, private school instructional personnel and governing board are considered “mandated reporters.” Specifically, Section 4 of ANCRA states,

Any . . . school personnel (including administrators and both certified and non-certified school employees), . . . member of a school board or . . .the governing body of a private school (but only to the extent required in accordance with other provisions of this Section expressly concerning the duty of the school board members to report suspected child abuse), . . . having reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or a neglected child shall immediately report or cause a report to be made to the Department [of Children and Family Services].

325 ILCS 5/4 (Emphasis added.) The foregoing provision is with regard to a mandated reporter’s duty to report to the Department of Children and Family Services (“DCFS”) allegations of abuse or neglect of a child, most likely a student of the private school for the purposes of this memo. It should be highlighted here that the duty to further disclose that a report had been made to a prospective employer of the subject of the report, is different than the duty to report to DCFS pursuant to the mandated reporter provision. Accordingly, it should be noted, that while the governing board of a private school is considered a “mandated reporter” for purposes of Section 4, this Section is explicitly qualified with “but only to the extent required in accordance with other provisions of this Section expressly concerning the duty of the school board members to report suspected child abuse.” 325 ILCS 5/4 (Emphasis added.)1

1 Please note that the Department of Children and Family Services (DCFS) “will transmit to school superintendents in Illinois and private school administrators information regarding any persons known to be employed in a school or who otherwise come into frequent contact with children in a school who are determined to be perpetrators of indicated reports of child abuse and neglect.” 89 Ill. Admin. Code 300.140(b) (Emphasis added.)

Section 4 goes on to state the following with regard to the duty to disclose that a report has been made to a prospective employer of the employee-subject of the report:

Notwithstanding any other provision of this Act, if an employee of a school district has made a report or caused a report to be made to the Department under this Act involving the conduct of a current or former employee of the school district and a request is made by another school district for the provision of information concerning the job performance or qualifications of the current or former employee because he or she is an applicant for employment with the requesting school district, the general superintendent of the school district to which the request is being made must disclose to the requesting school district the fact that an employee of the school district has made a report involving the conduct of the applicant or caused a report to be made to the Department, as required under this Act.

325 ILCS 5/4 (Emphasis added.) First, it should be noted that the above provision concerns the duty to disclose by a school district to a requesting school district. Arguably, this portion of Section 4 does not apply to private schools, inasmuch as it does not concern the duty of the (private) school to report suspected child abuse; rather it concerns the duty of a superintendent of a school district to report to an inquiring school district that an employee of the district made a report or caused a report to be made involving the conduct of a current or former employee. Second, the limitation of this duty to superintendents of school districts, as opposed to private school administrators, is further supported by applicable provisions of the School Code. Section 10-21.9 of the School Code, applicable to criminal history records checks, states as follows:

The superintendent of the employing school board shall, in writing, notify the State Superintendent of Education and the applicable regional superintendent of schools of any certificate holder whom he or she has reasonable cause to believe has committed an intentional act of abuse or neglect with the result of making a child an abused child or a neglected child, as defined in Section 3 of the Abused and Neglected Child Reporting Act, and that act resulted in the certificate holder’s dismissal or resignation from the school district. This notification must be submitted within 30 days after the dismissal or resignation.

105 ILCS 5/10-21.9(e-5). Again, the explicit duties discussed in this Section are limited to superintendents of school districts, and non-public school administrators are not mentioned.

However, in the instance that a private school decides to follow the provisions of ANCRA, with regard to the duty to disclose that a report has been made regarding a current or former employee of that school, it should be noted that the Section 4 duty to disclose is limited as follows by the Act:

Only the fact that an employee of the school district has made a report involving the conduct of the applicant or caused a report to be made to the Department may be disclosed by the general superintendent of the school district to which the request for

information concerning the applicant is made, and this fact may be disclosed only in cases where the employee and the general superintendent have not been informed by the Department that the allegations were unfounded.

325 ILCS 5/4. The duty to disclose is, thus, limited in content and time. A school, or specifically a superintendent of a school district, is not obliged to disclose the contents of the report or the facts surrounding the matter, but only that an employee of the school district made a report or caused a report to be made to DCFS, concerning the applicant for employment. Further, once either the employee or superintendent is notified the allegations were unfounded, there is no longer a duty to disclose to the inquiring school district that a report or hotline call was ever made. Finally, Section 4 of ANCRA also establishes a duty to inform the employee, who is the subject of the report, that if and when he/she applies for employment to another school district, there is an obligation on the part of the superintendent to disclose information regarding that employee being the subject of a report. This Section specifically states:

An employee of a school district who is or has been the subject of a report made pursuant to this Act during his or her employment with the school district must be informed by that school district that if he or she applies for employment with another school district, the general superintendent of the former school district, upon the request of the school district to which the employee applies, shall notify that requesting school district that the employee is or was the subject of such a report.

325 ILCS 5/4. Notably again, the provision is very specific to include that the obligation is limited to “school district[s]”, and does not mention private schools. This limitation is also supported by the fact that Section 2-3.25o of the School Code, concerning registration and recognition of non-public elementary and secondary schools by the Illinois State Board of Education, does not include any obligations of a non-public school to report or disclose under ANCRA. The only relevant provision of this Section states, “[n]o non-public school may obtain recognition status under this Section that knowingly employs a person who has been found to be the perpetrator of sexual or physical abuse of a minor under 18 years of age pursuant to the proceedings under Article II of the Juvenile Court Act of 1987,” which is very different than reports made pursuant to ANCRA that result in indicated or unfounded allegations of child abuse and neglect. See 105 ILCS 5/2-3.25o(c-5).2

CONCLUSION

Based on the foregoing, a private school does not have a duty to disclose to a prospective school employer inquiring about the qualifications or job performance of an employee who was the subject of a report under ANCRA, that a report was made or was caused to be made by the private school. However, it is up to each private school to create its own policies and procedures, as long as they are not in conflict with the law, regarding reporting procedures. As such, where a private school has a policy on point, it must follow that policy. Further, if a private school wishes to uphold the duty to disclose information to prospective employers per its own policy, it is suggested that it does so in accordance with Section 4 of ANCRA. /tt/file_convert/55d5554dbb61eb061a8b45a3/document.doc

2 Also see Illinois Bar Journal, Vol. 100, No. 10 October, 2012 at Page 514 for more on this topic.