In today’s public school environment, both students and staff are constantly on the alert for unauthorized persons on campus. Children, in particular, are often taught to announce the presence of unknown third-parties with the familiar cry of “stranger danger!” But what about those persons (other than parents or guardians) who are temporarily invited to be on school property?
Such persons or invitees are defined by most courts to mean “A person who enters land with permission of the owner, and does so either to confer an economic benefit on the possessor.” The people who most commonly fall into the invitee category are third-party contractors or vendors who are invited to campus to perform certain construction or maintenance duties. For the purposes of this piece, the term “invitee” shall be used, and is intended to refer to both contractors and vendors.
Because invitees have access to children, they potentially pose a risk for sexual misconduct allegations. Risk managers should ensure a policy is in place that serves to alert her or him to the presence of third-party invitees as well as all situations in which invitees may or will have access to students. Further, each of the invitee’s employees, representatives and volunteers need to comply with both the school’s and respective state’s background check requirements. Procedures should also be in place to ensure that invitees are never permitted to be alone with children.
Along with the above, risk managers must warrant that school administrators routinely require invitees to acknowledge that they have received and read the school’s relevant child protection policies. It is imperative for invitees to be required to self-report to the school any issues related to inappropriate interactions between their employees, etc., or other disciplinary issues involving their employees’ work with the school. Additionally, they should be required to fully cooperate and share pertinent information if the school needs to conduct an investigation involving an employee’s actions. Any violation or suspected violation of the school’s child protection-related policies should constitute grounds for terminating the contract with the invitee and result in a formal ban from bidding on all future contracts.
Currently, there appears to be a trend amongst some courts to look askance at indemnification and hold harmless clauses in vendor contracts. Nevertheless, the invitee should be required to carry primary and excess insurance coverage for acts of sexual abuse or molestation committed by its representatives, employees or volunteers in an amount of at least $1 million per occurrence with a $2 million aggregate amount for the policy period. The invitee should also be mandated to provide the school with a certificate of insurance demonstrating its sexual abuse and molestation coverage, and the school should be named as an additional insured on the invitee’s general liability policy or, if written as a separate coverage, on the sexual abuse and molestation policy. Of course, the savvy risk manager will accomplish the above in concert with the school’s attorney. In summary, the risk manager must be considered an integral player when it comes to the presence of third parties on campus.