Minor Doe 601, a minor, by and through his mother and natural guardian, Mother Doe 601, Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1236

Minor Doe 601, a minor, by and through his mother and natural guardian,
Mother Doe 601,
Appellants,

vs.

Best Academy, a/k/a and d/b/a Harvest Best Academy, et al.,
Respondents,

Aaron James Hjermstad, et al.,
Defendants.

Filed April 17, 2023
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-20-9039

Jeffrey R. Anderson, Michael G. Finnegan, Molly K. Burke, Joshua D. Peck, Jeff Anderson
& Associates, P.A., St. Paul, Minnesota; and

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for appellants)

Christian R. Shafer, Timothy A. Sullivan, Frank E. Langan, Ratw ik, Roszak & Maloney,
P.A., St. Paul, Minnesota (for respondents)

Jason L. DePauw, Keller Postman LLC, Chicago, Illinois (for amicus curiae Minnesota
Association for Justice)

Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Larson,
Judge.
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NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant chall enges the district court’s summary-judgment dismissal of his
negligent-hiring claim against respondent-schools arising out of sexual abuse of appellant
by respondents ’ employee. Because respondent s are entitled to statutory discretionary
immunity, we affirm.
FACTS
These facts are either undisputed or stated in a light most favorable to appellant
Minor Doe 601 (Doe) as the nonmoving party. From 2016 to 2020, Mastery School
(Mastery) employed Aaron James Hjermstad as a licensed physical education teacher.
Hjermstad also served as a basketball coach for the joint charter school basketball program
made up of students from Mastery and Best Academy (Best) .1
Before being hired by Mastery, Hjermstad was employed at Excell Academy charter
school as a physical education teacher . Hjermstad also developed the Charter School
Athletics League and coached basketball . In 2015, a student reported that Hjermstad
sexually abused him while staying overnight at Hjermstad’s home. Excell Academy placed
Hjermstad on administrative leave and reported the allegation to law enforcement and the
Minnesota Department of Education (MDE). Law enforcement investigated the allegation
against Hjermstad. Ultimately, no criminal charges were filed against him. MDE also

1 Best and Mastery were public charter schools founded in 2008 and 2012 respectively.
They were founded and operated under the Harvest Network of Schools Inc . In 2018, Best
merged with Harvest Preparatory School to form Harvest Best Academy. In 2021, Mastery
also merged. Harvest Best Academy became the surviving corporation.
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investigated and determined that the evidence did not support the allegation. Excell
Academy declined to renew Hjermstad’s employment contract for the following school
year.
Hjermstad was also a longtime volunteer coach for Hospitality House Youth
Development (Hospitality House) . Hospitality House is a faith- based nonprofit
corporation that operates youth basketball programs. When Hospitality House learned of
the allegations against Hjermstad, it placed Hjermstad on a leave of absence and directed
him to have no contact with players. Hospitality House officials knew that , before 2015,
players had spent the night at Hjermstad’s home. After conducting its own investigation,
Hospitality House reinstated Hjermstad as a volunteer coach in November 2015 subject to
certain conditions, including that Hjermstad was prohibited from having overnights with
players.
In 2016, Hjermstad interviewed for a physical education teaching position at
Mastery. Mastery’s hiring process involved a division of labor between Harvest Network
of Schools Inc. (HNS) and Mastery’s principal. HNS was a charter-school management
organization that provided services in finance, operations, and human resources.2 Mastery
and Best contracted with HNS to recruit employees, manage the hiring process, and train
new hires. These contracts stated that Mastery and Best believed their “ability to provide
exceptional educational instruction . . . will be enhanced by contracti ng for many of [their]
management, administrative and operational needs.” HNS managed job listings and

2 HNS dissolved in 2019 and is not a party to this case.
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forwarded candidates to school principals to select a candidate to interview, conduct the
interview, and file a request-to-hire form with HNS. The request-to-hire form included a
pre-hiring checklist of procedures to be completed by departments within HNS and the
school principal. The form required HNS’s human-capital department 3 to confirm that the
candidate submitted three references and that the references had been interviewed. The
form required HNS’s human-resources department to check whether the candidate had a
completed application on file, conduct a criminal background check, collect transcripts,
verify teaching credentials, create an employment file, and send new hire forms to payroll.
Finally, if the principal decided to hire the candidate, the principal needed to fill out the
request-to-hire form , date and return the form to HNS , and note the candidate’s requested
salary and the salary approved by HNS’s human-resources department. Ordinarily, the
CEO or CFO of HNS signed off on the forms before the school extended offers to hire to
prospective employees.
The process outlined in the request -to-hire form was not followed when hiring
Hjermstad. Mastery’s principal interviewed Hjermstad in June 2016. Before the interview,
the principal only received Hjermstad’s resume from HNS . Hjermstad had not provided
an application or references. His resume reflected he was formerly employed at Excell
Academy and volunteered at Hospitality House. The principal asked why Hjermstad left
Excell Academy. Hjermstad explained he was let go due to budget cuts. Impressed with

3 According to the principa l and former HNS employees, the human- capital department
was responsible for the recruitment and retention of teachers and students. The duties of
this department were procedurally distinct from those of the human- resources department.
5
Hjermstad’s experience, the principal partially filled out a portion of a request-to-hire form
which was later approved by HNS’s CFO. Mastery sent Hjermstad a letter offering to hire
him contingent on clearing a criminal background check. Upon receiving Hjermstad’s
acceptance, HNS further requested that Hjermstad fill out a job application and provide
three letters of reference and his transcripts. Hjermstad provided three non- supervisory
references and left blank the job application’s inquiry into why he left his former employer.
HNS confirmed Hjermstad passed a criminal background check and possessed a valid
teaching license. Neither HNS nor Mastery’s principal contacted any of Hjermstad’s
references. Hjermstad began teaching at Mastery . He also coached basketball for the
school’s joint Best-Mastery team on a volunteer basis.
Between 2016 and 2018, Doe was a student at Best and played basketball during his
fifth and sixth- grade years on Hjermstad’s Best -Mastery team. With his mother’s
permission, Doe spent the night at Hjermstad’s home many times. Though the exact date
is disputed, one time Doe spent the night at Hjermstad’s home along with Doe’s younger
brother and two players from the Hospitality House basketball team after an event at
Mastery’s gymnasium. Doe alleged that he woke up in the middle of the night and
discovered Hjermstad ’s mouth on Doe’s penis. Doe told his brother what happened and
called his mother to pick him up. But, Doe did not disclose the event to her.
In 2020, the parent of another Mastery student reported to Mastery’s principal that
Hjermstad sexually abused her son when he stayed overnight at Hjermstad’s home before
a basketball game. Mastery informed law enforcement and MDE about the allegations and
placed Hjermstad on administrative leave. A short time later, Mastery’s board of directors
6
voted to terminate Hjermstad’s employment for cause. Hospitality House also terminated
Hjermstad as a volunteer coach . The state charged Hjermstad with criminal sexual
conduct. After discovering a news article reporting on Hjermstad’s pending criminal
charges based on the allegation, Doe’s mother asked Doe whether anything happened
between him and Hjermstad. Doe reported Hjermstad sexually abused him during his fifth
or sixth-grade year at Mastery. Doe’s mother contacted law enforcement, leading to more
criminal charges against Hjermstad.
In July 2020, Doe sued respondents Best and Mastery (the schools) and Hjermstad.
Doe asserted negligence, negligent -supervision, negligent -retention, negligent -hiring, and
vicarious-liability claims against the schools . The district court granted the schools’
motion for partial summary judgment on Doe’s negligent -supervision and vicarious -
liability claims. The district court determined that Hjermstad’s behavior was outside the
scope of his employment and unforeseeable to the schools. In February 2022, the schools
moved for summary judgment on Doe’s remaini ng claims arguing that they were entitled
to statutory discretionary immunity. The district court agreed and granted summary
judgment.
Doe’s appeal follows.
DECISION
Doe limited this appeal to the summary-judgment dismissal of his negligent-hiring
claim. We review de novo the grant of summary judgment to determine whether there are
genuine issues of material fact and whether the district court erred in its application of the
law. Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). We view
7
“the evidence in the light most favorable to the nonmoving party and resolve all doubts and
factual inferences against the moving part[y].” Maethner v. Someplace Safe, Inc ., 929
N.W.2d 868, 874 (Minn. 2019) (quotation omitted).
The applicability of statutory discretionary immunity is a question of law we review
de novo. Jepsen as Trustee for Dean v. County of Pope , 966 N.W.2d 472, 488 (Minn.
2021). The Minnesota Municipal Tort Claims Act (MTCA), Minn. §§ 466.01- .15 (2022),
abrogates the longstanding doctrine of sovereign immunity and subjects municipalities to
tort liability. Id. The MTCA provides that “every municipality is subject to liability for
its torts and those of its officers, employees and agents acting within the scope of their
employment or duties whether arising out of a governmental or proprietary function.”
Minn. Stat. § 466.02. The definition of “municipality” includes charter schools. See Minn.
Stat. § 466.01, subd. 1 (defining “municipality” as including a “ school district, however
organized”); Minn. Stat. § 124E.03, subd. 2(d) (2022) (“A charter school is a district for
the purposes of tort liability under chapter 466.”). While charter schools are subject to tort
liability under the MTCA , they also enjoy the MTCA ’s statutory exceptions to the tort
liability rule. See Minn. Stat. § 466.03. Statutory discretionary immunity is one such
exception. Id., subd. 6.
Statutory discretionary immunity balances separation-of-powers principles by
preventing the judicial branch, through the oversight of tort actions, from second guessing
certain policymaking activities that are legislative or executive in nature. Nusbaum v. Blue
Earth County, 422 N.W.2d 713, 718 (Minn. 1988). Statutory discretionary immunit y
applies to decisions requiring an exercise of discretion, even if that discretion is abused.
8
See Minn. Stat. § 466.03, subd. 6 (stating l iability does not arise from “[a]ny claim based
upon the performance or the failure to exercise or perform a discretionary function or duty,
whether or not the discretion is abused” ).
To determine whether statutory discretionary immunity applies, we first identify the
precise government conduct being challenged. Schroeder v. St. Louis County, 708 N.W.2d
497, 504 (Minn. 2006). Second, we examine whether the conduct involved a decision that
was discretionary and balanced policy objectives . Id. The Minnesota Supreme Court has
recognized the difficulty in analyzing the scope of decisions subject to statutory
discretionary immunity and has developed a framework that distinguishes protected
“planning” or “policymaking” decisions from unprotected “operational” decisions. Olson
v. Ramsey County, 509 N.W.2d 368, 371 (Minn. 1993) ; see also Fisher v. County of Rock,
596 N.W.2d 646, 652 (Minn. 1999). Because p lanning-level decisions require the
balancing of policy objectives , they are afforded immunity. Jepsen, 966 N.W.2d at 489
(quotation omitted). Operational decisions involve “ordinary day-to-day operations of the
government” and are generally not protected by immunity. Id. But this distinction between
planning and operational decisions “should not be used in a conclusory manner.”
Nusbaum, 422 N.W.2d at 722. Instead, “it should be us ed as a tool for focusing attention
on the central inquiry of whether the challenged government conduct involved a balancing
of policy objectives.” Id.
The party asserting immunity has the burden “to prove that it is immune under the
discretionary function exception.” Id. at 722 n.6. The nature of evidence necessary to
support the application of immunity varies. In some cases , a governmental entity must
9
provide particular evidence that it engaged in planning or policy- level decision -making.
See Conlin v. City of Saint Paul, 605 N.W.2d 396, 402 (Minn. 2000). But in other cases,
the “challenged government conduct facially involves a balancing of policy objectives”
where “it may be unnecessary . . . to produce evidence of how the decision precipitating
the challenged conduct was made.” Nusbaum , 422 N.W.2d at 722 n.6.
Doe disputes the dismissal of his negligent -hiring claim. We review Doe’s
negligent-hiring claim and the applicability of statutory discretionary immunit y
considering two factually similar cases. See Fear v. Indep. Sch. Dist. 911, 634 N.W.2d
204, 212 (Minn. App. 2001), rev. denied (Minn. Dec. 11, 2001); Gleason v. Metro. Council
Transit Operations, 563 N.W.2d 309, 320 (Minn. App. 1997) , aff’d in part, 582 N.W.2d
216 (Minn. 1998) (the supreme court did not review the issue of statutory discretionary
immunity and negligent hiring when affirming in part) . In Fear, this court addressed the
application of statutory discretionary immunity to a negligent-hiring claim against a public
school district. 634 N.W.2d at 208. The school district hired a snow -removal contractor
to plow the school parking lot and pile the snow on the school’s playground. Id. at 208-
09. A student was injured when he fell from the snow pile. Id. at 208. He brought
negligence claims against the school district, the school’s employees who were supervising
the student at the time of his injury, and the snow -removal contractor. Id. at 209.
Along with asserting that the placement of the snow was a discretionary decision
subject to immunity, the school district argued that the hiring, supervision, and training of
its employees were also discretionary decisions entitled to immunity. Id. The s chool
submitted the principal’s affidavit to support its motion for summary judgment. Id. at 212.
10
While it is unclear whether the principal articulated particular policy factors that the school
weighed about the hiring, training, and supervising of its e mployees, this court reviewed
the affidavit and noted playground supervision decisions were “distinct from the planning-
level decisions involved in hiring, training, and supervising district employees.” Id. at 215.
Fear held that “[h]iring, supervising, training, and retaining municipal employees
are policy-level activities that are protected by statutory immunity.” Id. at 212 (citing
Gleason, 563 N.W.2d at 320). Thus, this court determined that statutory discretionary
immunity protected the school district from the student ’s negligent-hiring claim because
“caselaw holds that analogous municipal organizations are entitled to statutory immunity
for the hiring, training, and supervision of their employees .” Id.
In Gleason, a plaintiff asserted negligent supervision, hiring, training, and retention
claims against Metropolitan Council Transit Operations (MTCO) and an MTCO bus driver
after the driver neglected to secure plaintiff’s wheelchair with safety belts and refus ed to
transport her. 563 N.W.2d at 314. We first addressed the plaintiff’s claims of (1) false
imprisonment because the driver did not allow plaintiff to get off the bus and (2) intentional
infliction of emotional distress for the driver’s belittling treat ment. Id. at 320. We
concluded the conduct “did not involve the balancing of public policy considerations ,”
rather it involved “operational level activity for which statutory immunity is not available.”
Id. (quotation omitted).
But, when considering pla intiff’s negligent supervision, hiring, training, and
retention claims, the Gleason court noted that those claims “in contrast, are based on policy
level activity” and barred by statutory discretionary immunity. Id. (citing Oslin v. State ,
11
543 N.W.2d 408, 415-16 (Minn. App. 1996) (determining that decisions about supervision
and retention “were necessarily entwined in a layer of policy-making”), rev. denied (Minn.
Apr. 1, 1996)); see also Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406,
413 (Minn. 1996) (holding that training employees was planning- level conduct protected
by statutory immunity).
Applying this framework to the first step of its statutory discretionary immunit y
analysis, the district court correctly found that the challenged go vernment conduct was
Mastery’s decision to hire Hjermstad. The parties do not dispute this determination.
We turn now to the second step and examine whether the “challenged . . . conduct
involved a balancing of policy objectives.” Nusbaum, 422 N.W.2d at 722. Doe argues the
district court failed to place the burden on the schools to prove that they made a policy
decision that entitled them to immunity. We disagree. As discussed above, the nature of
the evidence necessary to satisfy the burden and support the application of immunity varies.
The government entity’s burden to produce evidence in Fear and Gleason did not include
the production of specific evidence that showed they weighed economic, social, and
political policy factors when making their hiring decisions . When the challenged conduct
“facially involve[d] a balancing of policy objectives” it is “unnecessary . . . to produce
evidence of how the decision precipitating the challenged conduct was made.” Id. at 722
n.6. Put another way, the government entities in Fear and Gleason did not need to produce
evidence about their hiring decisions because their decisions to hire employees facially
involved balancing policy considerations and the discretion protected by statutory
discretionary immunity. Contrary to Doe’s assertion, the district court did apply the correct
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burden to show entitlement to statutory discretionary immunity to the schools , and
concluded the burden was satisfied under Fear. Mastery’s decision to hire Hjermstad is
analogous to the protected decisions in Fear to hire the school district’s teachers which
facially involved the balancing of policy objectives. See id. Thus, we agree the schools
are entitled to statutory discretionary immunity on Doe’s negligent-hiring claim.
Doe argues that Fear does not apply and should only be read to afford statutory
discretionary immunity for high-level policy decisions that govern how a school generally
conducts its hiring practices. We disagree. A fair reading of Fear shows the challenged
conduct involved decisions to hire, train, and supervise individual school employees ,
particularly, th e employees who were present on the playground during the student’s
injury. 634 N.W.2d at 215. Because the challenged conduct here involves the decision to
hire Hjermstad, an individual employee, there is little basis to say Fear does not control
when ap plied to an individual hiring decision. And our holding in Gleason granted
immunity to the MTCO’s decision to hire the individual driver who later refused to secure
and transport the plaintiff. 563 N.W.2d at 320. The challenged conduct in Gleason was
not a high-level decision by the MTCO about how to conduct their hiring practices. Id.
Finally, Doe contends that this application of Fear means that every hiring decision
is a de jure policy -level decision that shields governmental entities and schools from
liability. We do not conclude that Fear immunizes schools f rom all hiring decisions. Our
13
decision is limited to the facts here. We conclude that the schools are entitled to statutory
discretionary immunity on Doe’s negligent-hiring claim. 4
Affirmed.

4 Because we affirm based on statutory discretionary immunity, we need not reach the issue
of the foreseeability of Hjermstad’s conduct raised by the schools as an alternate basis to
affirm the district court’s summary-judgment dismissal of Doe’s negligent -hiring claim.