Our topic is the search of a camper's or camp employee's belongings.
This is not a U.S. Constitution, Fourth Amendment search and seizure issue, or a 14th Amendment right to privacy issue as no governmental authority is addressed. We are dealing, rather, with a matter of private agreements and expectations among the camp, its families and employees.
These issues have been sharpened by recent events involving young men and women using concealed weapons to harm others (and themselves) in schools and other venues. The matter of camps and searches was addressed in Campline in 1998 by Michael Blickman, Esq., "Privacy vs. Protection: Can You Search Camper and Staff Belongings?"1 We intend to expand on that very helpful article, particularly with respect to campers.
All owners and operators of facilities, including retail stores and places of amusement and recreation, owe a duty to protect visitors from unreasonable risks of harm. As we have noted frequently, this duty, enlarged in fact, extends to camps. The relationships among campers, their families and camp staff are uniquely intimate and constant. It is one of mutual trust and confidence, played out in an environment of adventure, reasonably managed. This environment influences the relationship between the camp and its employees as well, though the expectations and obligations are not the same.
I. Searching Camper Belongings:
The Duty to Campers:
Some courts have described the duty owed to minor campers as "in loco parentis" – in place of the parents. A camp is expected to show the care that a parent would exercise in making decisions about the child's emotional and physical well-being. The custodial nature of the camp's duty of care, however it may be described in a particular state, certainly includes protecting the child from his her own behavior and from the potentially dangerous behavior of other campers and employees. And so we come to the matter of searches of campers' belongings.
Searching for What?
Items considered inappropriate, as a threat to a child's or other's health and safety, a violation of the camp's rules or otherwise, include: weapons (of course), including implements which might be used for purposeful (self) cutting, drugs, alcohol, food, objectionable messages and images carried on cell phones or other electronic devices, and the devices themselves, if possession of those devices violates the camp's policies.
The Scope of the Search:
To protect a child from herself or himself, and others, the camp's search might include a child's locker or trunk, cell phone, camera and other data gathering and messaging devices, and personal effects including toiletries. The camp should avoid personal searches of a camper.
In all things pertaining to searches, the camp should place a priority on the health and well-being of the camper or campers. The camp should use fairness and reason in deciding upon items which are the proper target of a search, the criteria for initiating a search ("a good reason to believe…", "some suspicion of…", or only under very special circumstances an "arbitrary and random search without suspicion", for example), the scope of the search, strategies for dealing with a child who resists a search or is found to have a prohibited item, and notification of parents. But the camp's responsibility for the health and welfare of campers, arising from its custodial role in caring for campers, trumps any real or perceived notion of privacy or confidentiality.2
That being said, to reduce the chances of a later surprise and confrontation, camps might conduct, with the camper, a private inventory of each camper's belongings on the opening day of camp. Such a routine might alert staff to the important items NOT packed, and reveal prohibited items.
Some camps believe that there is no need to notify parents of the camp's intent to search the camper's items – whether the camp plans to undertake that search routinely upon arrival, or when it suspects the child may possess an item that violates camp rules or policies. The "right" decision will depend very much on the camp's culture, history of dealings with its families, and the reasonable expectations of the families. If there is any uncertainty in this regard the camp might form a focus group of parents to consider the matter. In any event, we will leave that decision up to the camp, which is likely thoughtfully informed about its camper families. However, to reduce surprise, and promote a healthy information exchange, the camp should consider informing parents and campers of the camp's policy with respect to searches, including the matters identified above. The camp can provide this information to camper families in its enrollment materials, such as in an enrollment or camper/parent agreement. The camp should warn the camper and parent to not expect privacy regarding prohibited items. Camps should ask parents and to the extent practical, campers, to acknowledge an understanding of the camp's search policy and consent to that policy, giving the camp the ability to conduct a routine belongings' search (see above) or any other search if the camp, in its discretion, feels the health or safety of campers is threatened, the child has violated camp rules or for any other reason.
If the camp believes a child may possess a prohibited or unauthorized item, a senior member of the management team should ask the child, privately but in the presence of another adult, if he or she has the item. If the child says "yes" and hands the item over, certain disciplinary steps may follow.
If the child says no, the camp representative should ask the child, respectfully, to allow the search, being reminded of the earlier consent and agreement by, at least, the parents.
Any search should be conducted privately, in the presence of another adult, and a record kept of the result. The camp should retain recovered items in a secure place, and a record made of the scope of the search and the outcome. Some items may be returned to the family at the end of the camp session. Others may be confiscated. The camp may be required to notify (and/or turn over to) local law enforcement officers items of an illegal nature. Again, the nature of the recovered object will dictate the disciplinary action taken and the involvement of outside parties, including notification of the parents.
If the child does not object to the search, and the camp discovers the item (or another prohibited item), it should take suitable disciplinary steps.
If the child objects to the search, he or she has committed a serious breach of camp rules and violated a commitment made by the child and parents in the enrollment process, and the matter should be dealt with accordingly. Only in a rare circumstance would the search be conducted without the child's consent, and, we would suggest, never without the child's knowledge. Under no circumstances should the child be embarrassed before other campers, or subject to abusive or threatening language or conduct. There should be no touching or personal contact.
The key to setting up the possibility of a search is clarity in announcing the purpose and intent of the policy – why the policy is necessary, the utter discretion given to staff, strategies for avoiding unnecessary embarrassment and intrusion, and the consequences of a failure to cooperate.
The camp should avoid surprises in explaining its justification to conduct a particular search, the scope of the search, discovery of a prohibited item, or a failure to cooperate. As described above, these issues are easily explained to a parent before the camp session. A surprised parent or camper is a disappointed, or, worse, an angry or hurt parent or camper, and that lost trust may be difficult to recover.
A camper (or parent) has no legal right to object to a search based solely on his or her status as a camper, except as might be found in an enrollment contract, or perhaps other promises, expectations or custom.
II. Search of Employee Belongings:
Duty to Employees and others:
Employers, including camps, have a duty to provide their employees with a safe place to work (like the duty to campers — the duty to exercise reasonable care to protect employees from unreasonable risks of harm). An employer's duty also includes the obligation to follow certain laws pertaining to the workplace, such as federal (or state) laws governing occupational safety and health, anti-discrimination and sexual harassment and laws governing other workplace conditions.
Many states' workers' compensation laws provide employers with immunity from liability for their negligence (failure to exercise reasonable care) related to injuries occurring to employees, within the scope of their employment. However, these laws do not provide an employer with complete protection. For example, the employer typically remains liable for injuries occurring to employees as a result of the employer's intentional acts. In addition, under the theory of 'respondeat superior,' an employer can be liable to a camper or other third party injured by an employee acting within the scope of his employment. Also, under theories of negligent hiring or retention, the employer can be found liable for the intentional acts of its employees (typically considered outside the scope of employment) that injure co-employees, campers or third parties.
The camp has a duty under premises law as well, to exercise care to maintain the premises in such a way to protect employees, campers or other visitors from conditions or illegal activities of which it knew or should have known.
As a result, the employer needs to consider policies and safety measures in the workplace to fulfill its duties – including, an appropriate policy on workplace searches of an employee's belongings. In this way, an employer can monitor its workers and potentially dangerous or illegal activities taking place in the workplace that might harm other workers, visitors or third parties.
Searching for What?:
Clearly the same items of concern that may be possessed by campers, are those of concern regarding employees. Unlike campers, however, there may not be a reason to confiscate employees' personal electronics and cell phones. At the same time, the employer will likely have a set policy regarding personal cell phone use, Internet use, and certainly the viewing or sending of graphic and/or offensive images during work hours on work (or personal) computers and electronics.3
The Scope of the Search:
The scope of the search should be geared to an understanding of the employee's right to privacy balanced by the employer's obligation, among other duties, to provide a safe work place. The employer should clearly outline to the employee its search policy – including its intent to search certain areas, at certain times. This policy should be agreed to and signed by the employee in writing, typically in (or as a part of) the employee handbook. This acknowledgment, by the employee is a critical step, and camps should work with informed legal counsel to assist them in crafting the statement of a camp's search policy, the acknowledgment by employees of its policy, and the consequences for an employee's refusal to cooperate with the policy.
Searches should only be conducted if the camp has a reasonable basis to believe that the employee's belongings should be searched – for example, receiving word from a credible source that the employee is in possession of an illegal or prohibited item, observing an employee who appears to be in possession of such an item or openly observing such an item in an employee's workspace or possessions.
Searches should be fair and reasonable and conducted in a uniform and nondiscriminatory manner. Camps should not conduct random searches, as those are generally not favored under the law. In addition, the camp should not undertake a search of the employee's person (an employee has a justifiably very high expectation of privacy with respect to his or her body), or, during a search, touch the employee without his or her consent. Instead, the camp should consult with its legal counsel and ultimately, law enforcement officials, who would likely undertake that type of search within the scope of their official duties, as they determine necessary. *NOTE: State laws may dictate limits of searchable areas or identify other limits on a camp's ability to monitor its workplace (including the scope and nature of any video surveillance). In crafting its search policy, the camp should consult with its legal counsel regarding, among other things, any applicable legal limits.
The process of the search should strictly follow the employer's policy, which policy should be signed by the employee before employment begins (and perhaps annually, or regularly as part of the employee's re-affirmation of his or her commitment to adhering to this and other camp policies). Important elements of the policy (and as appropriate, of the search) include:
- The purpose of the search policy is to monitor employees' compliance with applicable laws and camp work and safety rules;
- All employees are subject to the policy;
- If the camp requests a search, it is not an accusation of employee wrongdoing, but merely part of an investigation;
- A search may include the employee's personal items (purse, briefcase, etc), their work areas, lockers, vehicles if driven or parked on camp property or used on camp business, and any other personal items;
- The identified 'searchable' areas are subject to search at any time;
- If the camp allows an employee to have a locker or other storage area at the camp, the camp can furnish the lock and keep a copy of the key or combination, or, alternatively, allow the employee to furnish a personal lock, but require the employee to give the camp a copy of the key or combination;
- Contact the camp director or other designated management staff member and have that person present with the 'searching' staff member, when the search is conducted;
- Advise the employee that the camp has a reasonable suspicion that the prohibited item is present in the area to be searched, and request the employee's permission to conduct the search;
- Announce that the employee will not be forced to submit to the search, but that the employee's refusal to submit to a search may lead to consequences. (Note: Any consequences, including termination, should be considered in consultation with informed counsel who has developed and reviewed this and other elements of the employee handbook, consistent with applicable law and cognizant of the status of the employment at will doctrine in your jurisdiction);
- As an alternative to the proposed search, present the employee with the option of voluntarily producing the item that is the subject of the proposed search;
- If a search is conducted, do it professionally, and do not harass or accuse the individual, whether or not an item is produced by the employee or revealed in the search.
Relevant Issues For Both Camper or Employee Searches:
Potential Legal Exposure – Claims Made by Campers/Parents or Employees:
Potential claims by parents might include breach of contract (if the scope or nature of the search was different than what the parent agreed to in the camp contract). Claims by either campers/parents or employees might include invasion of privacy, infliction of emotional distress, trespass, defamation, false imprisonment and assault and battery.
As discussed above in the case of minor campers, privacy rights take a backseat to the camp's custodial duty of care to act for the well being of the child – so privacy claims are unlikely to be successful in this context, particularly if the camp's policy on searches is clearly defined, and communicated and signed off on by the parent (and ideally, the camper as well).
Regarding employees, an understanding of and respect for an employee's right to privacy is the touchstone of developing a thoughtful search policy, vetted with the camp's informed legal counsel. A defined and well-crafted policy – typically included in the employee handbook and signed off on by the employee – is an excellent way for the employer to defend itself against claims of improper searches of employees' belongings, if it has acted in accordance with its stated policy.
Ultimately, following a clear, carefully disclosed and consented to, fair and reasonable policy, as described above, whether in the case of a search of a camper's or employee's belongings, will hopefully minimize the filing of any claims and the ultimate success of any claims.
Seized Items of an Illegal or Prohibited Nature – Chain of Custody
If the camp confiscates an illegal or prohibited item, it must take care that the item is carefully preserved and protected in the event it must be turned over to or examined by law enforcement, or used as evidence in a legal proceeding. This includes avoiding the searcher's or others' fingerprints on the item in the process of the seizure. The item should be kept in a sealed and secure location, with appropriate identification, including date and time of search, the name of the individual from whose belongings the item was seized, and signatures of the individual performing the search and any witnesses. If the item is turned over to authorities, or examined by an outside party, a strict record should be kept of the transfer of the item (and any return back to the camp). A strict 'chain of custody' should be kept until the item is no longer relevant for any civil or criminal matter. In any given matter, the camp should consult with its legal counsel to assure it is following the proper chain of custody procedures in its jurisdiction.
Confidential Written Record
Prepare a confidential written record of any search conducted, including the name of the individual or individuals whose belongings were searched, the date, time and place of the search, the reason the search was conducted, items discovered, written statements from any witnesses, camp action taken in regard to the person or persons and any item or items seized, and the reaction of the person to the search. The record should be reported to appropriate camp management and kept in the camp's possession.
To search or not to search, and the nature and scope of communications to the family and employees in this regard, is very much a matter of the camps relationship with its families and staff. As discussed above, a clear and fair policy, adhered to by the camp and disclosed and accepted in advance, is likely a sound and prudent course to follow for most camps. Consider informal discussions with a few families and employees as you develop a policy, and of course consult with your legal counsel.
Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail firstname.lastname@example.org; www.rebgregg.com.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail email@example.com; www.hansenstampattorney.com.
1 www.acacamps.org/campline/98o-privacyvsprotection. Thanks to the author for his initial work, very helpful to our expanded and updated article here.
2 But see our article: "She Thinks She's Pregnant — What Do We Do?" www.acacamps.org/campline/ fall-2013/she-thinks-pregnant, reflecting the court's acknowledgment of a minor child's constitutional right to privacy regarding pregnancy, abortion and birth control in the context of governmental services (state or federal).
3 See our article: "Camp Staff Use of Electronic Devices and Social Media: Some Issues and Solutions" www.acacamps.org/campline/spring-2014/staff-electronic-devices-social-m…, discussing the critical importance of a camp's development of these policies.
*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.