OLR Bill Analysis

sHB 5400 (as amended by House "A")*

AN ACT CONCERNING THE DISCLOSURE OF CERTAIN EDUCATION PERSONNEL RECORDS.

SUMMARY:

This bill adds new requirements to the hiring processes of local or regional boards of education, state or local charter school governing councils, and inter-district magnet school operators (“education employers”) for positions that would place applicants in direct contact with students. Specifically, it requires applicants for such positions, education employers, 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 or neglect involving children. Existing law requires education employers to submit new hires for state and federal criminal history record checks within 30 days of their starting date.

Among other things, the bill also does the following:

1. requires charter school governing councils and magnet school operators to require applicants to disclose criminal convictions and charges;

2. removes the requirement for boards of education, when dismissing a noncertified employee for failure to disclose a prior criminal conviction, to give the employee an opportunity to file a written answer;

3. allows fingerprinting of certain applicants by regional education service centers (RESCs) and limits charges for this service;

4. requires criminal history record checks of substitute teachers and employees of contractors and allows temporary hires under certain conditions;

5. prohibits education employers from offering employment to any applicant who was previously terminated or resigned from employment because of certain convictions;

6. establishes punitive measures for applicants who knowingly provide false information about their history; and

7. allows criminal history and child abuse and neglect registry record checks for individuals holding drivers' licenses bearing a school or public passenger endorsement for operating a student transportation vehicle. (Under existing law, the Department of Motor Vehicles (DMV) commissioner requires these individuals to undergo such checks.)

The bill also increases the penalty for certain school-related threats and establishes (1) conditions under which the Board of Pardons and Paroles must grant an absolute pardon and (2) an absolute defense to a civil action for reporting certain threats.

It requires the court to remove a minor's name from certain eviction-related records.

It also makes technical and conforming changes and removes obsolete language.

*House Amendment “A” makes the following changes: (1) requires charter school governing councils and magnet school operators to follow the same new investigatory hiring processes as boards of education under the bill, (2) adds child neglect to the list of investigated applicant history items, (3) quantifies educational employers' “good faith effort” to contact an applicant's past and current employers and allows written or telephone contact, (4) revises the process for dismissing noncertified employees with criminal records, (5) allows charter school governing councils and magnet school operators to utilize RESC fingerprinting services and limits charges for such services, (6) increases the frequency of criminal history record checks of substitute teachers, (7) requires school bus and school transportation vehicle drivers to submit to these new investigatory hiring processes, (8) shortens the deadline by which applicants' current and former employers must respond to educational employers' inquiries, (9) removes punitive measures for boards of education that do not comply with the new hiring processes, and (10) adds the provisions on threatening crimes and minor's name on eviction-related records.

EFFECTIVE DATE: July 1, 2016, except (1) the provision on the SDE standardized employment form takes effect upon passage and (2) the provisions on threatening crimes and minor's name on eviction-related records are effective October 1, 2016.

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 sexual relationship with the student, including (1) a sexual invitation; (2) dating or soliciting a date; (3) engaging in sexual dialogue; (4) making sexually suggestive comments; (5) self-disclosure or physical exposure of a sexual or erotic nature; and (6) any other sexual, indecent, or erotic contact with a student.

Abuse or Neglect

The bill defines “abuse or neglect” as the following:

1. abuse of a child or youth by (a) inflicting physical injury or non-accidental injuries; (b) inflicting injuries that do not match the story associated with their origin; or (c) maltreatment, including malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment, or cruel punishment and

2. neglect of a child or youth by (a) abandonment; (b) denial of proper care and attention physically, educationally, emotionally, or morally; or (c) allowing the child to live under conditions, circumstances, or associations injurious to the child's well-being.

The bill also defines “abuse and neglect” as 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, class C or B felony (CGS 53a-72b); or

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

NEW REQUIREMENTS FOR APPLICANTS

The bill requires anyone applying to an education employer for a position involving direct student contact to make three disclosures.

First, an applicant must provide the education employer with contact information for current and former employers if they were education employers or 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 education employers send. The authorization also must consent to and authorize SDE to disclose information and related records to requesting education employers and release such former employers and SDE from any liability that may arise from such disclosure or release.

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

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

2. was disciplined or asked to resign from a job or resigned from or otherwise separated from any job while an allegation of abuse or neglect was pending or under investigation by the Department of Children and Families (DCF), or an allegation of sexual misconduct was pending or under investigation or because of an allegation substantiated by DCF of abuse or neglect or sexual misconduct or a conviction for abuse or neglect 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 neglect was pending or under investigation by DCF, or an investigation of sexual misconduct was pending or under investigation, or because of an allegation substantiated by DCF of abuse or sexual misconduct or a conviction for abuse or sexual misconduct.

NEW REQUIREMENTS FOR EDUCATION EMPLOYERS

The bill prohibits education employers 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 education employer has reviewed, either through written or telephone communication, the applicant's employment history on the standardized form filled out by current and past employers, which current or former employers must complete and return within five business days of receipt; and

3. the education employer has requested information from SDE about the applicant's eligibility status for a position requiring a certificate, authorization, or permit; previous disciplinary action for a substantiated finding of abuse or neglect or sexual misconduct; and notice of a criminal conviction or pending criminal charges against the applicant.

Under the bill, education employers must make a good faith effort to reach an applicant's current and previous employers. The bill describes a “good faith effort” as one requiring no more than three phone calls on three separate days.

The bill also allows education employers 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 applicant must respond within five business days of receipt. It provides immunity from criminal and civil liability to any employer who provides such information, as well as to SDE, 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 education employer requesting it about an applicant:

1. any information about the applicant's eligibility for employment with such education employer in a position that requires a certificate, authorization, or permit;

2. whether SDE knows if the applicant was disciplined for a finding of abuse or neglect or sexual misconduct, and any information related to the finding; and

3. whether SDE has been notified that the applicant has been convicted of a crime or of pending criminal charges against the applicant and any information about such charges.

The bill specifies that SDE is not required to investigate any such request for information by an education employer about an applicant.

Additionally, SDE must design, by June 30, 2016, a standardized form for past employers of such applicants to complete. Interviewing education employers and contractors 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 past employer knows whether the applicant:

1. was the subject of an abuse or neglect or sexual misconduct allegation for which there is a pending investigation by any employer, state agency, or municipal police department or which has been substantiated;

2. was disciplined, asked to resign, or resigned from any job while such an allegation was pending or under investigation, or due to a substantiation of abuse or neglect or sexual misconduct; or

3. ever had a professional or occupational license, certificate, authorization, or permit suspended or revoked, or has ever surrendered one while such an allegation was pending or under investigation or due to a substantiation of abuse or neglect or sexual misconduct.

HIRING PRACTICES FOR OTHER POSITIONS

Substitute Teachers

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

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 education employers 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 that were education employers and request, either by telephone or in writing, any information about whether there was a finding of abuse or neglect or sexual misconduct against the employee, and which the employer must report if there is one.

Should the contractor receive any information indicating such a finding or otherwise has knowledge of one, he or she must immediately forward, either by telephone or in writing, the information to any education employer with which the contractor is under contract. The education employer must then determine whether the employee may work in a position involving direct student contact at any school under its jurisdiction. It is not considered a breach of contract under the bill for the education employer to determine that the contractor's employee is forbidden to work under any such contract in such a position.

COMMUNICATION

The bill requires communication between education employers, and also between an education employer and SDE, about findings of abuse or sexual misconduct by applicants or employees.

Specifically, it requires education employers 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 education employers to provide upon request, to any other education employer or to the education commissioner, information it may have about a finding of abuse or sexual misconduct for someone being vetted for hire as a direct employee of an education employer or a contractor's employee.

EMPLOYMENT AGREEMENTS

The bill bars education employers 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 neglect or sexual misconduct by a current or former employee;

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

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

TEMPORARY HIRES

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

1. the applicant has submitted to the education employer the three disclosures required under the bill,

2. the education employer has no information about the applicant that would disqualify him or her from employment, and

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

PUNITIVE MEASURES

Against Applicants

The bill subjects applicants who knowingly provide false information or knowingly fail to disclose information required under this bill to an education employer to discipline by the education employer. Such discipline may include denial of employment or termination of a certified employee's contract.

6-9 — THREATENING CRIMES

Penalties for School-Related Threats

By law, 1st degree threatening includes threats to commit a violent crime, or a crime using a hazardous substance, with intent to cause, or with reckless disregard of the risk of causing, (1) evacuation of a building, place of assembly, or public transportation facility; (2) serious public inconvenience for hazardous substance crimes; or (3) terror.

The bill increases the penalty for such 1st degree threatening, from a class D felony to a class C felony, if the threat was made with intent to cause the evacuation of a building or the grounds of a public or private preschool, school, or higher education institution during instructional hours or when the facility or the grounds are being used for school- or institution-sponsored activities.

By law, a class D felony is punishable by imprisonment for up to five years, a fine of up to $5,000, or both. A class C felony is punishable by imprisonment for one to 10 years, a fine of up to $10,000, or both.

By law, a person is guilty of 2nd degree threatening when he or she (1) by physical threat, intentionally places or attempts to cause someone to fear imminent serious physical injury or (2) threatens to commit a violent crime with intent to terrorize someone or in reckless disregard of the risk of doing so.

The bill increases the penalty for this crime, from a class A misdemeanor (punishable by imprisonment for up to one year, a fine of up to $2,000, or both) to a class D felony, if the threatened person was in the building or on the grounds of such a school facility during instructional hours or when the facility or the grounds is being used for school- or institution-sponsored activities.

Absolute Pardon

Under the bill, the Board of Pardons and Paroles must grant an absolute pardon to an adult applicant who was convicted of 1st or 2nd degree threatening related to a preschool, school, or higher education institution as described above, if:

1. the person was under age 18 when he or she committed the offense;

2. at least three years have passed since the person's conviction or discharge from court supervision or the care of an institution or agency to which he or she was committed, whichever is later, and during that three-year period, the person was not convicted as an adult of any crime; and

3. the person has no subsequent pending juvenile proceeding or adult criminal proceeding.

Defense for Reporting Threats

The bill also gives someone who reports 1st degree threatening intended to cause a school evacuation an absolute defense to a civil action brought as a result of making the report, if the person exercised due care when making the report and acted in good faith at all times while making the report.

10 — MINOR'S NAME ON EVICTION-RELATED RECORDS

By law a summary process judgment (i.e., eviction order) binds the named defendants and their minor children. This means that minors are also required to adhere to the court order. The bill requires the court to remove the minor's name from the records the Judicial Branch maintains on its website if (1) the minor's name was included in the complaint and (2) the court orders it at the request of any party or on its own motion.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

43

Nay

0

(03/28/2016)

Education Committee

Joint Favorable

Yea

21

Nay

9

(04/25/2016)