Bill Text: NY A06285 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to including current school district employees in the requirements for fingerprinting and criminal history record checks.
Spectrum: Slight Partisan Bill (Democrat 7-3)
Status: (Introduced - Dead) 2022-01-05 - referred to education [A06285 Detail]
Download: New_York-2021-A06285-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6285 2021-2022 Regular Sessions IN ASSEMBLY March 12, 2021 ___________ Introduced by M. of A. GALEF, SANTABARBARA, STIRPE, SAYEGH, BUTTENSCHON, THIELE, WILLIAMS, ASHBY, McDONOUGH -- Multi-Sponsored by -- M. of A. MORINELLO -- read once and referred to the Committee on Education AN ACT to amend the education law, in relation to including current school district employees in the requirements for fingerprinting and criminal history record checks The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 30 of section 305 of the education law, as 2 added by chapter 180 of the laws of 2000, paragraph (a), the opening 3 paragraph and subparagraph (i) of paragraph (b), subparagraph (vii) of 4 paragraph (c) and paragraph (d) as amended by chapter 630 of the laws of 5 2006, subparagraph (vi) of paragraph (c) as added and subparagraph 6 (viii) of paragraph (c) as renumbered by chapter 182 of the laws of 7 2000, and paragraph (e) as added by chapter 147 of the laws of 2001, is 8 amended to read as follows: 9 30. (a) The commissioner, in cooperation with the division of criminal 10 justice services and in accordance with all applicable provisions of 11 law, shall promulgate rules and regulations to require the fingerprint- 12 ing of all employees and prospective employees, as defined in section 13 eleven hundred twenty-five of this chapter, of school districts, charter 14 schools and boards of cooperative educational services and authorizing 15 the fingerprinting of prospective employees of nonpublic and private 16 elementary and secondary schools, and for the use of information derived 17 from searches of the records of the division of criminal justice 18 services and the federal bureau of investigation based on the use of 19 such fingerprints. The commissioner shall also develop a form for use by 20 school districts, charter schools, boards of cooperative educational 21 services, and nonpublic and private elementary and secondary schools in 22 connection with the submission of fingerprints that contains the specif- 23 ic job title held or sought and any other information that may be rele- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10423-01-1A. 6285 2 1 vant [to consideration of the applicant]. The commissioner shall also 2 establish a form for the recordation of allegations of child abuse in an 3 educational setting, as required pursuant to section eleven hundred 4 twenty-six of this chapter. No person who has been fingerprinted pursu- 5 ant to section three thousand four-b of this chapter or pursuant to 6 section five hundred nine-cc or twelve hundred twenty-nine-d of the 7 vehicle and traffic law and whose fingerprints remain on file with the 8 division of criminal justice services shall be required to undergo fing- 9 erprinting for purposes of a new criminal history record check. This 10 subdivision and the rules and regulations promulgated pursuant thereto 11 shall not apply to a school district within a city with a population of 12 one million or more. 13 (b) The commissioner, in cooperation with the division of criminal 14 justice services, shall promulgate a form to be provided to all [such] 15 employees and prospective employees of school districts, charter 16 schools, boards of cooperative educational services, and nonpublic and 17 private elementary and secondary schools that elect to fingerprint and 18 seek clearance for [prospective] employees that shall: 19 (i) inform the employee or prospective employee that the commissioner 20 is required or authorized to request his or her criminal history infor- 21 mation from the division of criminal justice services and the federal 22 bureau of investigation and review such information pursuant to this 23 section, and provide a description of the manner in which his or her 24 fingerprint cards will be used upon submission to the division of crimi- 25 nal justice services; 26 (ii) inform the employee or prospective employee that he or she has 27 the right to obtain, review and seek correction of his or her criminal 28 history information pursuant to regulations and procedures established 29 by the division of criminal justice services. 30 (c) The [prospective] employer shall obtain the signed, informed 31 consent of the employee or prospective employee on such form supplied by 32 the commissioner which indicates that such person has: 33 (i) been informed of the right and procedures necessary to obtain, 34 review and seek correction of his or her criminal history information; 35 (ii) been informed of the reason for the request for his or her crimi- 36 nal history information; 37 (iii) consented to such request for a report; 38 (iv) supplied on the form a current mailing or home address for the 39 employee or prospective employee; 40 (v) been informed that he or she may withdraw his or her application 41 for employment pursuant to this section, without prejudice, at any time 42 before employment is offered or declined, regardless of whether the 43 prospective employee or employer has reviewed such prospective employ- 44 ee's criminal history information; 45 (vi) where the applicant or employee is to be fingerprinted pursuant 46 to section three thousand thirty-five of this chapter, the process for 47 seeking a waiver of the fees associated with conducting a criminal 48 history records check, pursuant to paragraph (b) of subdivision four of 49 section three thousand thirty-five of this chapter, 50 (vii) been informed that in the event his or her employment is termi- 51 nated and such person has not become employed in the same or another 52 school district, charter school, board of cooperative educational 53 services, or nonpublic or private elementary or secondary school within 54 twelve-months of such termination, the commissioner shall notify the 55 division of criminal justice services of such termination, and the divi- 56 sion of criminal justice services shall destroy the fingerprints of suchA. 6285 3 1 person. Such person may request that the commissioner notify the divi- 2 sion of criminal justice services that his or her fingerprints shall be 3 destroyed prior to the expiration of such twelve month period in which 4 case the commissioner shall notify the division of criminal justice 5 services and the division shall destroy the fingerprints of such person 6 promptly upon receipt of the request; and 7 (viii) been informed of the manner in which he or she may submit to 8 the commissioner any information that may be relevant to the consider- 9 ation of his or her application for clearance including, where applica- 10 ble, information in regard to his or her good conduct and rehabili- 11 tation. 12 (d) The commissioner shall develop forms to be provided to all school 13 districts, charter schools, boards of cooperative educational services, 14 and to all nonpublic and private elementary and secondary schools that 15 elect to fingerprint their employees and prospective employees, to be 16 completed and signed by employees and prospective employees when condi- 17 tional appointment or emergency conditional appointment is offered. 18 (e) The commissioner may promulgate rules and regulations regarding 19 the conditional appointment and emergency conditional appointment of a 20 prospective employee. 21 § 2. Section 3035 of the education law, as added by chapter 180 of the 22 laws of 2000, subdivision 1 as amended by chapter 630 of the laws of 23 2006, subdivision 3 as amended by section 7 of chapter 630 of the laws 24 of 2006, subdivision 3-a as added by chapter 380 of the laws of 2001, 25 subdivisions 4 and 6 as amended by chapter 182 of the laws of 2000, is 26 amended to read as follows: 27 § 3035. Duties of commissioner; submission of fingerprints. 1. The 28 commissioner shall submit to the division of criminal justice services 29 two sets of fingerprints of all employees and prospective employees as 30 defined in subdivision three of section eleven hundred twenty-five of 31 this chapter received from a school district, charter school or board of 32 cooperative educational services and of all employees and prospective 33 employees received from nonpublic and private elementary and secondary 34 schools pursuant to title two of this chapter, and the division of crim- 35 inal justice services processing fee imposed pursuant to subdivision 36 eight-a of section eight hundred thirty-seven of the executive law and 37 any fee imposed by the federal bureau of investigation. The division of 38 criminal justice services and the federal bureau of investigation shall 39 forward such criminal history record to the commissioner in a timely 40 manner. For the purposes of this section, the term "criminal history 41 record" shall mean a record of all convictions of crimes and any pending 42 criminal charges maintained on an individual by the division of criminal 43 justice services and the federal bureau of investigation. All such crim- 44 inal history records sent to the commissioner pursuant to this subdivi- 45 sion shall be confidential pursuant to the applicable federal and state 46 laws, rules and regulations, and shall not be published or in any way 47 disclosed to persons other than the commissioner, unless otherwise 48 authorized by law. 49 2. No cause of action against the commissioner, the department or the 50 division of criminal justice services for damages related to the dissem- 51 ination of criminal history records pursuant to this section shall exist 52 when the commissioner, department or division of criminal justice 53 services has reasonably and in good faith relied upon the accuracy and 54 completeness of criminal history information furnished to it by quali- 55 fied agencies. The provision of such information by the division of 56 criminal justice services shall be subject to the provisions of subdivi-A. 6285 4 1 sion sixteen of section two hundred ninety-six of the executive law. The 2 consideration of such criminal history record by the commissioner shall 3 be subject to article twenty-three-A of the correction law. 4 3. (a) Clearance. After receipt of a criminal history record from the 5 division of criminal justice services and the federal bureau of investi- 6 gation the commissioner shall promptly notify the appropriate school 7 district, charter school, board of cooperative educational services, or 8 nonpublic or private elementary or secondary school whether the employee 9 or prospective employee to which such report relates is cleared for 10 employment based upon his or her criminal history. All determinations to 11 grant or deny clearance for employment pursuant to this paragraph shall 12 be performed in accordance with subdivision sixteen of section two 13 hundred ninety-six of the executive law and article twenty-three-A of 14 the correction law. When the commissioner denies an employee or a 15 prospective employee clearance for employment, such employee or prospec- 16 tive employee shall be afforded notice and the right to be heard and 17 offer proof in opposition to such determination in accordance with the 18 regulations of the commissioner. 19 (b) Conditional clearance. When the commissioner receives a request 20 for a determination on the conditional clearance of a prospective 21 employee, the commissioner, after receipt of a criminal history record 22 from the division of criminal justice services, shall promptly notify 23 the prospective employee and the appropriate school district, charter 24 school, board of cooperative educational services, or nonpublic or 25 private elementary or secondary school that the prospective employee to 26 which such report relates is conditionally cleared for employment based 27 upon his or her criminal history or that more time is needed to make the 28 determination. If the commissioner determines that more time is needed, 29 the notification shall include a good faith estimate of the amount of 30 additional time needed. Such notification shall be made within fifteen 31 business days after the commissioner receives the prospective employee's 32 fingerprints. All determinations to grant or deny conditional clearance 33 for employment pursuant to this paragraph shall be performed in accord- 34 ance with subdivision sixteen of section two hundred ninety-six of the 35 executive law and article twenty-three-A of the correction law. 36 3-a. Upon request from an employee or a prospective employee who has 37 been cleared by the commissioner for employment and/or certification, 38 the commissioner shall have the authority to forward a copy of such 39 criminal history record to the city school district of the city of New 40 York by the most expeditious means available. Furthermore, upon notifi- 41 cation that such prospective employee is employed by the city school 42 district of the city of New York, the division of criminal justice 43 services shall have the authority to provide subsequent criminal history 44 notifications directly to the city school district of the city of New 45 York. Upon request from an employee or a prospective employee who has 46 been cleared for licensure and/or employment by the city school district 47 of the city of New York, such school district shall have the authority 48 to forward a copy of the employee's or prospective employee's criminal 49 history record to the commissioner, by the most expeditious means avail- 50 able, for the purposes of this section. Furthermore, upon notification 51 that such employee or prospective employee is employed by a school 52 district outside the city of New York, the division of criminal justice 53 services shall have the authority to provide subsequent criminal history 54 notifications directly to the commissioner. 55 4. The fee provisions of subdivision two of section three thousand 56 four-b of this chapter shall apply to criminal history records searchesA. 6285 5 1 conducted pursuant to this section; provided however that, notwithstand- 2 ing the provisions of any other law: (a) the fees associated with an 3 employee participating in a public assistance employment program, pursu- 4 ant to title nine-B of article five of the social services law, or 5 receiving employment services through the federal temporary assistance 6 for needy families block grant pursuant to appropriations to the office 7 of temporary disability assistance, shall be paid by the social services 8 district making such employment placement or assignment and the cost of 9 such fees, if not subject to full reimbursement under such federal block 10 grant, shall be deemed to be an employment services administrative 11 expense. In no event shall such a participant described herein be 12 required to personally pay any fee imposed by the division of criminal 13 justice services or the federal bureau of investigation or any other fee 14 for the purpose of conducting a criminal history records search; and (b) 15 any prospective employee, including, notwithstanding any provision of 16 law to the contrary, a prospective employee applying for a position in a 17 school district within a city with a population of one million or more, 18 may submit a request to a governing body of a school district, on a form 19 prescribed by the commissioner, that the fees imposed for conducting a 20 criminal history records check be waived. Such governing body may grant 21 such a request if such governing body determines that payment of such a 22 fee would impose an unreasonable financial hardship on the applicant or 23 his or her family and, upon such determination, the governing body shall 24 pay such fee on behalf of the prospective employee to the appropriate 25 authority. 26 5. The commissioner and the division of criminal justice services 27 shall enter into an agreement for the purposes of implementing the 28 provisions of this section. 29 6. Nothing in this section shall be construed or interpreted to alter 30 or in any way diminish the integrity of collective bargaining agreements 31 negotiated between an employer and any certified or authorized collec- 32 tive bargaining agent, with respect to payment of fees for criminal 33 history records searches, nor to diminish any rights pursuant to such 34 agreements. 35 § 3. Subdivision 3 of section 3035 of the education law, as amended by 36 section 8 of chapter 630 of the laws of 2006, is amended to read as 37 follows: 38 3. After receipt of a criminal history record from the division of 39 criminal justice services and the federal bureau of investigation the 40 commissioner shall promptly notify the appropriate school district, 41 charter school, board of cooperative educational services, or nonpublic 42 or private elementary or secondary school whether the employee or 43 prospective employee to which such report relates is cleared for employ- 44 ment based upon his or her criminal history. All determinations to grant 45 or deny clearance for employment pursuant to this subdivision shall be 46 performed in accordance with subdivision sixteen of section two hundred 47 ninety-six of the executive law and article twenty-three-A of the 48 correction law. When the commissioner denies an employee or a prospec- 49 tive employee clearance for employment, such employee or prospective 50 employee shall be afforded notice and the right to be heard and offer 51 proof in opposition to such determination in accordance with the regu- 52 lations of the commissioner. 53 § 4. Section 3001-d of the education law, as added by chapter 630 of 54 the laws of 2006, is amended to read as follows: 55 § 3001-d. Criminal history record checks and conditional appointments; 56 nonpublic and private schools. 1. a. "Employee" shall mean any employeeA. 6285 6 1 or prospective employee of a nonpublic or private elementary or second- 2 ary school which requires the fingerprinting of prospective employees 3 pursuant to this section, or employee of a contracted service provider 4 or worker placed within such school under a public assistance employment 5 program, pursuant to title nine-B of article five of the social services 6 law, and consistent with the provisions of such title for the provision 7 of services to such school, its students or employees, directly or 8 through contract, whereby such services performed by such person involve 9 direct student contact. Any nonpublic or private elementary or secondary 10 school which elects to submit for review criminal history information 11 concerning employees and/or prospective employees must do so with 12 respect to each such employee or prospective employee, as defined in 13 this paragraph, in accordance with this section. 14 b. "Volunteer" shall mean any person, other than an employee, who 15 provides services to a nonpublic or private elementary or secondary 16 school which elects to require the fingerprinting of prospective employ- 17 ees pursuant to this section, which involve direct student contact. 18 2. Any nonpublic or private elementary or secondary school may 19 require, for the purposes of a criminal history record check, the fing- 20 erprinting of all employees and/or prospective employees pursuant to 21 section three thousand thirty-five of this article, who do not hold 22 valid clearance pursuant to such section or pursuant to section three 23 thousand four-b of this article or section five hundred nine-cc or 24 twelve hundred twenty-nine-d of the vehicle and traffic law. Prior to 25 initiating the fingerprinting process, the employer or prospective 26 employer shall furnish the applicant or employee with the form described 27 in paragraph (c) of subdivision thirty of section three hundred five of 28 this chapter and shall obtain the employee's or applicant's consent to 29 the criminal history record search. Every set of fingerprints taken 30 pursuant to this section shall be promptly submitted to the commissioner 31 for the purposes of clearance for employment. 32 3. (a) Any nonpublic or private elementary or secondary school may 33 conditionally appoint a prospective employee. A request for conditional 34 clearance may be forwarded to the commissioner along with the prospec- 35 tive employee's fingerprints. Such appointment may be delayed until 36 notification by the commissioner that the prospective employee has been 37 conditionally cleared for employment and shall terminate when the 38 prospective employer is notified of a determination by the commissioner 39 to grant or deny clearance, provided that if clearance is granted, the 40 appointment shall continue and the conditional status shall be removed. 41 Prior to commencement of such conditional appointment, the prospective 42 employer shall obtain a signed statement for conditional appointment 43 from the prospective employee, indicating whether, to the best of his or 44 her knowledge, he or she has a pending criminal charge or criminal 45 conviction in any jurisdiction outside the state. 46 (b) Any nonpublic or private elementary or secondary school may make 47 an emergency conditional appointment when an unforeseen emergency vacan- 48 cy has occurred. When such appointment is made, the process for condi- 49 tional appointment pursuant to paragraph (a) of this subdivision may 50 also be initiated. Emergency conditional appointment may commence prior 51 to notification from the commissioner on conditional clearance and shall 52 terminate when the prospective employer is notified by the commissioner 53 regarding conditional clearance, provided that if conditional clearance 54 is granted, the appointment may continue as a conditional appointment. 55 Prior to the commencement of such appointment, the prospective employer 56 must obtain a signed statement for emergency conditional appointmentA. 6285 7 1 from the prospective employee, indicating whether, to the best of his or 2 her knowledge, he or she has a pending criminal charge or criminal 3 conviction in any jurisdiction. An "unforeseen emergency vacancy" shall 4 be defined as: (i) a vacancy that occurred less than ten business days 5 before the start of any school session, including summer school, or 6 during any school session, including summer school, without sufficient 7 notice to allow for clearance or conditional clearance; (ii) when no 8 other qualified person is available to fill the vacancy temporarily; and 9 (iii) when emergency conditional appointment is necessary to maintain 10 services which the school is legally required to provide or services 11 necessary to protect the health, education or safety of students or 12 staff. 13 (c) Each nonpublic or private elementary or secondary school, which 14 elects to fingerprint employees and/or prospective employees pursuant to 15 subdivision two of this section, shall develop a policy for the safety 16 of the children who have contact with an employee holding conditional 17 appointment or emergency conditional appointment. 18 4. Fees. Notwithstanding any other provision of law to the contrary, 19 the commissioner is authorized to charge additional fees to applicants 20 for certificates pursuant to this section in an amount equal to the fees 21 established pursuant to law by the division of criminal justice services 22 and the federal bureau of investigation for the searches authorized by 23 this section. 24 § 5. This act shall take effect on the one hundred eightieth day after 25 it shall have become a law; provided that the amendments to paragraphs 26 (d) and (e) of subdivision 30 of section 305 of the education law made 27 by section one of this act, shall not affect the repeal of such 28 provisions and shall be deemed repealed therewith; and provided further 29 that the amendments to subdivision 3 of section 3035 of the education 30 law made by section two of this act shall be subject to the expiration 31 and reversion of such subdivision when upon such date the provisions of 32 section three of this act shall take effect.
