AN ACT CONCERNING THE DISCLOSURE OF CERTAIN EDUCATION PERSONNEL RECORDS, CRIMINAL PENALTIES FOR THREATENING IN EDUCATIONAL SETTINGS AND THE EXCLUSION OF A MINOR'S NAME FROM SUMMARY PROCESS COMPLAINTS

AN ACT CONCERNING THE DISCLOSURE OF CERTAIN EDUCATION PERSONNEL RECORDS, CRIMINAL PENALTIES FOR THREATENING IN EDUCATIONAL SETTINGS AND THE EXCLUSION OF A MINOR'S NAME FROM SUMMARY PROCESS COMPLAINTS

SUMMARY: This act 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 place applicants in direct contact with students. Specifically, it requires applicants for these 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. It also requires charter school governing councils and magnet school operators to conform to investigative hiring procedures that apply to boards of education under existing law.

1. establishes procedures for and prohibitions against hiring certain applicants for select positions with education employers, including student transportation workers, temporary hires, substitute teachers, contractor employees, and prior violators of the mandated reporter law;

2. establishes requirements for sharing information about applicants between education employers and SDE and among education employers;

3. grants immunity from civil and criminal liability to SDE and current and former employers that share information about applicants; and

4. extends (regional education service center) RESC fingerprinting services to charter and magnet schools and regulates fees for these services.

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

It also requires the court to remove a minor's name from certain eviction-related records, makes technical and conforming changes, and removes obsolete language.

EFFECTIVE DATE: July 1, 2016, except (1) the provision requiring SDE to make available a standardized employment inquiry form (§ 3) takes effect upon passage and (2) the provisions on threatening crimes and a minor's name on eviction-related records (§§ 6-10) take effect October 1, 2016.

The act 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.

The act refers to existing law to define “abuse” and “neglect. ” Thus, it defines abuse of a child under age 18 as (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 (a) malnutrition, (b) sexual molestation or exploitation, (c) deprivation of necessities, (d) emotional maltreatment, or (e) cruel punishment.

The act defines “neglect” as neglect of a child under age 18, other than due to impoverishment, by (1) abandonment; (2) denial of proper care and attention physically, educationally, emotionally, or morally; or (3) allowing a child to live under conditions, circumstances, or associations injurious to his or her well-being.

The act also specifically includes the following crimes in the definition of “abuse or neglect”: (1) 1^st degree sexual assault; (2) 1^st degree aggravated sexual assault; (3) 2^nd degree sexual assault; (4) 3^rd degree sexual assault; (5) 3^rd degree sexual assault with a firearm; and (6) 4^th degree sexual assault.

The act extends investigative hiring procedures that apply to boards of education to charter governing councils and magnet school operators.

Under the act, charter governing councils and magnet school operators must require applicants for positions in their schools to state whether they have ever been convicted of a crime or have criminal charges pending against them. Additionally, magnet school operators must require applicants to submit to the following:

1. a records check of the Department of Children and Families (DCF) child abuse and neglect registry prior to hire; and

2. state and national criminal history records checks within 30 days of their date of employment, beginning July 1, 2016.

Existing law already requires all charter school applicants and contractors doing business with charter schools to undergo these records checks. The act also allows charter governing councils and magnet school operators to require any employees hired before July 1, 2016 to submit to state and national criminal history records checks.

Additionally, the act requires the following individuals who perform services involving direct student contact in magnet or charter schools to submit to such records checks within 30 days of the date they begin working: individuals (1) placed in a school under a public assistance program; (2) employed by a supplemental services provider (e. g. , nonprofit or for-profit entities, local or regional school districts, or private schools that provide free academic extra help); or (3) in an unpaid, noncertified position while completing teacher certification requirements.

The act requires anyone applying to an education employer for a position involving direct student contact to make three disclosures (see below). It also subjects applicants to disciplinary action for falsifying information or failing to make required disclosures.

First, an applicant must provide the education employer with contact information for current and former employers if they were education employers 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 written authorization consenting to and authorizing current and former employers' disclosure of information and related records about him or her that are requested on the SDE-designed standardized inquiry form sent by the interviewing education employer. The written authorization also must consent to and authorize SDE's disclosure of information and related records to requesting education employers and release former employers and SDE from any liability that may arise from this disclosure or release.

1. has been the subject of an abuse, 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. has been 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 DCF, or an allegation of sexual misconduct was pending or under investigation, or because of an allegation substantiated by DCF of abuse, neglect, or sexual misconduct or a conviction for abuse, neglect, or sexual misconduct; or

3. has 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, neglect, or sexual misconduct or a conviction for any such conduct.

The act subjects both applicants and current employees to discipline for knowingly providing false information or knowingly failing to disclose information the act requires to education employers. Discipline may include denial of employment or termination of a certified employee's contract.

The act also removes the requirement that boards of education give noncertified employees who are dismissed for failure to disclose a criminal conviction an opportunity to file a written answer with the board. Under the act, a copy of the notice of such criminal conviction, the employee's answer, and the dismissal order are no longer required to become part of board records.

The act establishes several new requirements for education employers about (1) procedures prior to offering employment, (2) efforts to contact applicants' current and former employers, and (3) employment agreements to which they are a party.

The act prohibits education employers from offering to hire someone for any position involving direct student contact until the following has occurred:

2. the education employer has reviewed, either through written or telephone communication with the applicant's current and former employers, the applicant's employment history using SDE's standardized inquiry form for current and past employers, which such employers must complete and return within five business days; and

3. the education employer has requested information from SDE about (a) the applicant's eligibility status for a position requiring a certificate, authorization, or permit; (b) whether SDE knows of any finding of abuse, neglect, or sexual misconduct against the applicant substantiated by DCF, along with any information about such a finding; and (c) notice of any criminal convictions or pending criminal charges against the applicant.

The act also allows education employers to subsequently request additional information from an applicant's current or former employers to further investigate any response the employers supplied on the standardized form, to which the employers must respond within five business days of receipt.

The act requires education employers to make a documented good faith effort to contact an applicant's current and former employers that were education employers or employers of positions involving child contact. It specifies that a “good faith effort” does not require more than three telephone requests on three separate days to obtain information and recommendations about the applicant's fitness for employment. Prior law required boards of education to make a good faith effort to contact previous employers before hiring applicants but did not quantify the number of contact attempts or specify the contact methods required.

The act 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:

1. suppresses information about the investigation of reported suspected abuse, neglect, or sexual misconduct by a current or former employee;

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

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

Under the act, SDE must share information about applicants with education employers and create a standardized inquiry form for education employers to use when contacting applicants' current and former employers for information.

The act requires SDE to make the following applicant information available to any education employer that requests it:

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

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

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

The act specifies that SDE is not required to investigate any education employer's request for information about an applicant.

By June 30, 2016, SDE must design and make available to education employers a standardized form for current and past employers of such applicants to complete. Before offering employment to an applicant, education employers and contractors are responsible for sending the questions on this form, either in writing or orally by telephone, to the applicant's current and former employers. The form must request the applicant's dates of employment and ask whether the employer knows if the applicant:

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

2. was disciplined, asked to resign, or resigned from any job (a) while such allegations were pending or under investigation or (b) due to substantiated findings of abuse, 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 an allegation of abuse, neglect, or sexual misconduct was pending or under investigation or due to a substantiation of such an allegation.

The act establishes new procedures and applies existing procedures for hiring applicants for select positions to certain education employers. These positions include school transportation workers, temporary hires, substitute teachers, and employees of contractors serving education employers. The act also revises an existing prohibition on hiring violators of the mandated reporting law.

By law, school transportation workers (i. e. , school bus drivers or operators of other vehicles that transport students) must submit to criminal history records checks prior to receiving an operator's license with school or student transportation vehicle endorsements from the Department of Motor Vehicles. Prior law exempted these workers from having to submit to these records checks again as part of the hiring process with education employers. The act removes this exemption.

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

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

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

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

The act requires charter school governing councils and interdistrict magnet school operators to require state and national criminal history records checks for applicant substitute teachers. It exempts from these checks substitute teachers continuously employed by charter and magnet schools. (Existing law already requires substitute teachers employed by local and regional boards of education to submit to these checks and grants them an identical exemption. ) For all education employers, however, the act requires that continuously-employed substitute teachers be rechecked at least once every five years.

The act requires education employers to only hire applicants for substitute teaching positions (1) who fulfill the disclosure requirements and (2) after requesting information from the applicants' prior employers and SDE (in the same manner the act requires for other applicants).

Also, the act requires local and regional boards of education to maintain a list of individuals suitable to work as substitute teachers and requires education employers to hire only those on the list. (It is unclear whether charter and magnet schools must create similar lists or use the lists generated by boards of education. ) 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 is not aware of anything that would cause the person to be removed from the list.

In practice, education employers occasionally hire contractors to provide services that involve direct student contact. The act establishes requirements for contractors' employees who provide these services.

Under the act, a contractor's employee must fulfill the same three disclosure requirements as an applicant for employment with an education employer. Additionally, the contractor must contact any current or former employers that were education employers or caused the applicant to have contact with children and request, either by telephone or in writing, any information about whether there was a finding of abuse, neglect, or sexual misconduct against the employee. The employer must report any such information.

Should the contractor receive any information indicating such a finding or otherwise knows of one, the contractor must immediately forward, either by telephone or in writing, the information to any board of education with which it contracts. (It is unclear whether such information must be sent to contracting charter school governing councils or magnet school operators as well. ) The education employer must then determine whether the contractor's 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 act for a board of education to bar the contractor's employee from working under any such contract in such a position.

The act prohibits boards of education from hiring anyone who was terminated by an education employer, or resigned, because he or she failed to report a suspected crime against a minor when required to do so (e. g. , abuse, neglect, or injury of a child or imminent risk of serious harm to a child). Prior law established this hiring prohibition for applicants who were terminated by a board of education or who resigned from a position with a board of education.

Under the act, this prohibition applies only when an allegation of abuse, neglect, or sexual assault has been substantiated. Under prior law, the hiring prohibition applied regardless of whether the allegation was substantiated.

The act requires SDE, potential education employers, and former and current employers to share information about the misconduct of applicants and current employees. It also establishes legal protections for these entities when sharing this information about applicants.

The act requires education employers to notify SDE when they receive information that applicants or current employees have been disciplined for a finding of abuse, neglect, or sexual misconduct.

Under the act, an education employer must provide, on request, to any other education employer or to the education commissioner, information it may have about a finding of abuse, neglect, or sexual misconduct regarding someone being considered for a job as a direct employee of another education employer or a contractor. An education employer also must provide, at the education commissioner's request, information about current employees who have been disciplined as a result of such findings.

The act provides immunity from criminal and civil liability to SDE and any employer that provides an education employer with information about an applicant as required under this act, as long as the information supplied is not knowingly false.

The act allows charter school governing councils and magnet school operators to request RESC fingerprinting services for state and national criminal history records checks. Existing law already allows local and regional boards of education, special education facilities, and endowed or incorporated academies to access this service. The act also prohibits RESCs from charging a fee for fingerprinting services that exceeds any fee the RESC charges its own employment applicants.

Under the act, a RESC must provide records check results to the following parties that requested the service: charter school governing councils; magnet school operators; and contractors, if the contractor's employee is subject to the records checks upon applying for a position with an education employer. Existing law requires RESCs to provide these results to boards of education, special education facilities, and endowed or incorporated academies that request fingerprinting services.

By law, 1^st 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; or (3) for hazardous substance crimes, terror in a person.

The act increases the penalty for 1^st degree threatening, from a class D felony to a class C felony (see Table on Penalties), 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 person is guilty of 2^nd 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 act increases the penalty for this crime from a class A misdemeanor (see Table on Penalties) to a class D felony if the threatened person was in the building or on the grounds of a school, as defined above, during instructional hours or when the school or the grounds are being used for school- or institution-sponsored activities.

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

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.

The act also gives someone who reports 1^st 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.

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 an eviction order. If the minor's name was included in the complaint, the act allows the court, upon its own motion or the motion of any party, to order that the minor's name be stricken from the case record and removed from the records the judicial branch maintains on its website.