OLR Bill Analysis

sHB 5400

AN ACT CONCERNING THE DISCLOSURE OF CERTAIN EDUCATION PERSONNEL RECORDS.

SUMMARY:

This bill adds new requirements to the hiring processes of local and regional boards of education for positions that would place applicants in direct contact with students. Specifically, it requires applicants for such positions, boards of education, and the State Department of Education (SDE) to participate in additional investigative measures to determine, prior to employment, whether an applicant has a history of sexual misconduct or abuse involving children.

The bill requires applicants to make disclosures to boards of education containing (1) current and past employers' contact information; (2) authorization allowing contact with such employers; and (3) statements about any past misconduct, discipline, or licensure penalties as a result of sexual misconduct or abuse allegations.

It also requires boards of education, before hiring such applicants, to (1) ensure that applicants complete the above three requirements; (2) review applicants' employment history after making a documented, good faith effort to contact previous employers for information; and (3) request any available information about applicants from SDE.

The bill requires SDE to (1) share with requesting boards any available information about past discipline or criminal charges relating to an applicant and (2) design a standardized form for past employers of such applicants to complete. The department must design the form and make it available to boards of education by June 30, 2016.

The bill also does the following:

1. prohibits boards of education from offering employment to any applicant who was previously terminated or resigned from employment under a board after he or she was convicted of failure to report the abuse, neglect, or injury of a child or imminent risk of serious harm to a child, regardless of whether the reported allegation of abuse, neglect, or sexual assault has been substantiated;

2. establishes guidelines for investigating substitute teachers and employees of contractors prior to hire;

3. requires boards of education to communicate with SDE and other boards when learning of an applicant's or current employee's disciplinary history;

4. prohibits boards from entering into agreements that contain certain provisions contradicting investigatory efforts;

5. allows temporary hires by boards under certain conditions; and

6. establishes punitive measures for (a) applicants who provide false information about their history and (b) boards of education that fail to follow the bill's investigatory requirements for hiring.

The bill also makes several technical and conforming changes.

EFFECTIVE DATE: July 1, 2016, except the provision establishing a date by which SDE must make the standardized employment form available takes effect upon passage.

DEFINITIONS

Sexual Misconduct

The bill defines “sexual misconduct” as any verbal, nonverbal, written or electronic communication, or any act directed toward or with a student that is designed to establish a romantic or sexual relationship with the student, including (1) a sexual or romantic invitation; (2) dating or soliciting a date; (3) engaging in sexual or romantic dialogue; (4) making sexually suggestive comments; (5) self-disclosure or physical exposure of a sexual, romantic, or erotic nature; and (6) any other sexual indecent, romantic, or erotic contact with a student.

Abuse

The bill defines “abuse” to be any of the following crimes:

1. 1st degree sexual assault, class B or A felony (CGS 53a-70);

2. 1st degree aggravated sexual assault, class B or A felony (CGS 53a-70a);

3. 2nd degree sexual assault, class C or B felony (CGS 53a-71);

4. 3rd degree sexual assault, class D or C felony (CGS 53a-72a);

5. 3rd degree sexual assault with a firearm, class C or B felony (CGS 53a-72b); or

6. 4th degree sexual assault, class A misdemeanor or class D felony (CGS 53a-73a).

The bill's definition of abuse also includes abuse of a child or youth by (1) inflicting physical injury or non-accidental injuries; (2) inflicting injuries that do not match the story associated with their origin; or (3) maltreatment, including malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment, or cruel punishment (CGS 46b-120).

NEW REQUIREMENTS FOR APPLICANTS

The bill requires anyone who applies to a board of education for a position involving direct student contact to make three disclosures.

First, an applicant must provide the board with contact information of current and former employers if they were a board of education or if the employment otherwise involved contact with children. The contact information must include each employer's name, address, and telephone number.

Second, the applicant must provide a written authorization that consents to and authorizes such former employers to disclose information and related records about him or her that is requested on the SDE-designed standardized form that interviewing boards send. The authorization also must release such employers from any liability that may arise from such disclosure or release of records.

Third, the applicant must give a written statement about whether he or she

1. was the subject of an abuse or sexual misconduct investigation by any employer, state agency, or municipal police department, unless the investigation found that all allegations were unsubstantiated;

2. was disciplined or asked to resign from employment or resigned from or otherwise separated from any employment while an allegation of abuse or sexual misconduct was pending or being investigated by the Department of Children and Families (DCF), or due to an allegation of abuse or sexual misconduct substantiated by DCF or a conviction for abuse or sexual misconduct; or

3. had a professional or occupational license or certificate suspended or revoked or ever surrendered one while an allegation of abuse or sexual misconduct was pending or being investigated by DCF, or due to an allegation substantiated by DCF of abuse or sexual misconduct or a conviction for abuse or sexual misconduct.

NEW REQUIREMENTS FOR BOARDS OF EDUCATION

The bill prohibits boards of education from offering employment for any position involving direct student contact until the following has occurred:

1. the applicant has complied with the above disclosure requirements;

2. the board has reviewed the applicant's employment history on the standardized form filled out by current and past employers, which current employers must complete and return within 20 days of receipt and former employers within 60 days; and

3. the board has requested information from SDE about the applicant's eligibility status, previous disciplinary action for a finding of abuse or sexual misconduct, and notice of pending criminal charges against the applicant.

The bill also allows boards to request additional information from an applicant's current or former employers relating to any response the applicant listed on the standardized form, to which the employers must respond within 60 days of receipt. It provides immunity from criminal and civil liability to any employer who provides such information, as long as the information supplied is not knowingly false.

NEW REQUIREMENTS FOR SDE

The bill requires SDE to make the following information available to any board of education requesting it about an applicant:

1. any information about the applicant's eligibility for employment in a position with such board;

2. whether SDE has knowledge of any discipline of the applicant for a finding of abuse or sexual misconduct, and any information related to the finding; and

3. whether SDE has been notified of pending criminal charges against the applicant and any information about such charges.

Additionally, SDE must design, by June 30, 2016, a standardized form for past employers of such applicants to complete. Interviewing boards of education are responsible for sending this form to past employers of applicants. The form must request the applicant's dates of former employment and a statement as to whether the employer knows the following about the applicant:

1. whether he or she was the subject of an abuse or sexual misconduct allegation for which there is a pending investigation by DCF or which has been substantiated by DCF;

2. whether he or she was disciplined, asked to resign, or resigned from any employment while such an allegation was pending or under investigation, or due to a finding of abuse or sexual misconduct; or

3. whether he or she ever had a professional or occupational license or certificate suspended or revoked, or has ever surrendered one while such an allegation was pending or under investigation or due to a finding of abuse or sexual misconduct.

HIRING PRACTICES FOR OTHER POSITIONS

Substitute Teachers

The bill requires boards of education to only hire applicants for substitute teaching positions who fulfill the disclosure requirements and after requesting information from the applicant's prior employers and SDE (in the same manner the bill requires for other applicants).

Also, the bill requires boards to maintain a list of individuals who are suitable to work as substitute teachers. An individual remains on the list as long as (1) he or she is continuously employed by the board as a substitute teacher and (2) the board does not have any knowledge that would cause the person to be removed from the list. The bill requires boards to hire only listed individuals as substitute teachers.

Contractors and Their Employees

Regarding contractors that apply for positions involving direct student contact, the bill requires them to perform the checks on their employees who would fill such positions. These checks are similar to the ones boards of education must perform on their applicants under the bill.

Under the bill, a contractor's employee must fulfill the three disclosure requirements that a regular, direct applicant for such a position must fulfill. Additionally, the contractor must contact any current or former employers and request any information about whether there was a finding of abuse or sexual misconduct against the employee, and which the employer must report if there is one.

A contractor who receives any information indicating such a finding or otherwise has knowledge of one must immediately forward the information to any board of education with which he or she is under contract. The board must then determine whether the employee may work in a position involving direct student contact at any school under the board's jurisdiction. It is not considered a breach of contract under the bill for the board to determine that the employer (presumably the contractor) is forbidden to work under any such contract in such a position.

The bill requires boards of education to report to the State Board of Education (SBE) any suspected violation by a contractor of the provisions relating to the above required employee checks. SBE must review each report to determine if the violation occurred knowingly. SBE must also make available to boards of education a list of each contractor found to have knowingly violated these provisions. The bill prohibits boards from contracting with any such contractor.

COMMUNICATION

The bill requires communication between boards of education, and also between a board and SDE, about findings of abuse or sexual misconduct by applicants or employees.

Specifically, it requires boards to notify SDE when they receive information that applicants or employees have been disciplined for a finding of abuse or sexual misconduct. Additionally, it requires boards to provide upon request, to any other board of education or to the education commissioner, information they may have about a finding of abuse or sexual misconduct by someone being vetted for hire as a direct employee of a board of education or a contractor's employee.

AGREEMENTS

The bill bars boards of education from entering into any collective bargaining agreement, employment contract, resignation or termination agreement, severance agreement, or any other agreement or take any action that results in any of the following outcomes:

1. has the effect of suppressing information about an investigation of a report of suspected abuse or sexual misconduct by a current or former employee;

2. affects the board's ability to report suspected abuse or sexual misconduct to appropriate authorities; or

3. requires the board to expunge information about an allegation or finding of suspected abuse or misconduct from any documents they maintain, unless after investigation the allegation is dismissed or found to be false.

TEMPORARY HIRES

The bill allows boards of education to employ or contract with an applicant for up to 90 days while awaiting the complete review of the application information, as long as the following has occurred:

1. the applicant has submitted its three disclosures required under the bill to the board,

2. the board has no information about the applicant that would disqualify such person from employment, and

3. the applicant affirms that he or she is not disqualified from employment with the board.

PUNITIVE MEASURES

Against Applicants

The bill subjects applicants to discipline by the employing board for providing false information or knowingly failing to disclose information required under this bill. Such discipline may include (1) denial of employment or (2) (a) termination of a certified employee's contract or (b) dismissal of a non-certified employee, as long as such employee is notified of the reason for the dismissal and is given an opportunity to appeal it to the board through the collective bargaining agreement grievance procedure.

Against Boards

The bill allows SBE to fine a board of education between $1,000 and $10,000 for negligently or knowingly violating any of its provisions. The amount must be withheld from a grant payment that the SDE commissioner determines in the fiscal year following the fiscal year when the violation occurred.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

43

Nay

0

(03/28/2016)