A paramount concern of a private school is ensuring its campus provides a safe and secure environment for its students. There are many ways a private school can provide and promote a safe campus, such as hiring an expert to conduct a risk and safety assessment and hiring security guards.
Obtaining an Expert Risk and Safety Assessment Report
One way to evaluate the safety of the campus is to hire an expert to conduct a risk assessment and provide a report to the school’s board. The report generally outlines the school’s vulnerabilities and provides recommendations on how the school can improve those vulnerabilities.
Prior to engaging in the expert, the board should take a few issues into consideration. While the board cannot predict exactly what the expert will find and recommend or the associated costs, the board should be aware that it has a fiduciary duty to take action once the report has been issued. Therefore, the board should ensure the board has sufficient funds not only to engage the expert but also to take action once the expert issues the report.
Second, the board or administrators should engage an expert that is familiar with private schools and is willing to provide recommendations that are tailored to the school’s unique campus, culture and environment.
Third, the board should determine whether it wants to engage the expert directly or consult with legal counsel to engage the expert. If the school’s counsel engages the expert on behalf of the school and utilizes counsel in the decision-making process, the school will be able to assert that the report is attorney-client work product and that privileged status may remain in the future in the event of an adverse action.
Once the expert issues the report, the board and the directors have a fiduciary duty to review the report and make informed decisions on how to proceed in the best interest of the school. The report may include an array of recommendations, ranging from simple fixes to unfeasible recommendations. The recommendations may be unfeasible for a variety of reasons. The recommendations may be outside the school’s budget, extremely cumbersome to the school operations, change the dynamics or culture of the school, or may violate fire or building codes if implemented. It is important for the board to document the steps it takes to evaluate the report’s recommendations such as documenting quotes, discussions with local safety personnel and other information that goes into the decision of whether to take action to implement a recommendation in the report. If the school wants to assert attorney-client over those discussions, the school may want to engage counsel to assist with guiding the discussion and providing input leading up to the final decisions.
Contracting with a Security Company
Another avenue for the school to provide safety and security on campus is to hire a security company to provide security guards and services. As with any vendor contract, it is important for the school to ensure the contractor clearly identifies each party’s responsibilities and obligations and provides liability protection to the school.
The school should confirm that the security vendor is properly licensed by The Bureau of Security and Investigative Services (the “BSIS”) as a private patrol operator or operator of a private patrol service. BSIS requires that entities providing security services and guards to other businesses for compensation have a license. This includes providing security guards to protect persons or property or to prevent the theft.
The school should consult with its insurance broker to confirm that the school has adequate insurance and that the vendor’s insurance is sufficient for the services the vendor is providing to the school. The school should also make certain that the indemnification is reasonable given each party’s obligations in the contract. The security vendor performing security services is in the best position to manage risk that might arise from the contract, but the security vendor will also not want to take on liability for potential crimes, personal injury or property damage inflicted by third parties that the school is seeking to prevent on its campus. We recommend consulting legal counsel to determine whether the language is reasonable given each party’s obligations in the contract.
Additionally, the contract must comply with Labor Code section 2810 to provide the school with a defense in the event the individual security guards claim their employer did not comply with certain labor code provisions. Labor Code section 2810 prohibits a school from entering into a contract with a vendor for security guard services if the school knows or should know that the contract does not include funds sufficient to allow the vendor to comply with all applicable local, state, and federal laws or regulations governing the security guard services. If the school has a written contract that includes all of the provisions outlined in the statute, it will create a rebuttable presumption that it did not enter into a contract with insufficient funds to allow the vendor to comply with all applicable laws or regulations governing the security guard services. The contract must include vendor contact information, a description of the services, dates the services will be provided, the vendor’s EIN, vehicle liability insurance and workers’ compensation insurance policy numbers, the vendor’s insurance carriers’ contact information, the VIN for any vehicle used in the services, address of any housing provided to the security guards, the number of security guards, specified information related to the security guards’ wages and commissions, information related to any independent contractors utilized to perform the services and a list of the current local, state, and federal contractor license identification numbers that the independent contractors are required to have under local, state, or federal laws or regulations. The contract must be signed and dated by both parties and kept for four years after the termination of the contract.
Hiring Security Guards as Employees
A private school also has the option to hire security guards directly as employees. In this situation, the school would be responsible for the security guards and their actions, just as it would all other employees.
All security guards hired by the school should have the appropriate licenses required and issued by the BSIS. The BSIS also requires employers of proprietary private security officers or security guards to maintain certain information in each employee’s employment records. The school may hire a proprietary private security officer, which is an unarmed individual who is employed exclusively by the school, whose primary duty is to provide security services for the school, is required to wear a uniform and is likely to interact with the public. Alternatively, the school may hire a security guard or security officer, which is an individual who is employed by the school to protect persons or property or to prevent the theft on the premises owned by the school or in the company of persons being protected.
Again, it is important that the school consult with its insurance broker to confirm that the school has adequate insurance to employ its own security guards.
In the event a security guard is required to deploy his or her physical training or skill set in a school, it is more than likely to be a dynamic, chaotic, and confusing situation. If the guard does not have the requisite and ongoing training, it could cause harm. Thus, it is important that the school has an understanding of not only the training, licensing and record keeping requirements necessary to hire a security guard but what future ongoing training entails to ensure the security guards have sufficient knowledge and ability to perform their duties within the industry standards in the event a situation arises.
When evaluating its security options, a school should consult with legal counsel to identify any liability concerns and its options for understanding its liability while creating the safe and secure environment for its students.