Requires nonpublic and private elementary and secondary schools to require their prospective employees to submit fingerprints through the commissioner of education for the purpose of criminal background checks; authorizes conditional appointment of employees by such schools pending determination of the criminal background check.
STATE OF NEW YORK
________________________________________________________________________
4129
2023-2024 Regular Sessions
IN SENATE
February 3, 2023
___________
Introduced by Sen. MANNION -- read twice and ordered printed, and when
printed to be committed to the Committee on Education
AN ACT to amend the education law, in relation to requiring nonpublic
and private elementary and secondary schools to apply to the commis-
sioner of education for criminal history record checks on prospective
employees
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 30 of section 305 of the
2 education law, as amended by chapter 630 of the laws of 2006, is amended
3 to read as follows:
4 (a) The commissioner, in cooperation with the division of criminal
5 justice services and in accordance with all applicable provisions of
6 law, shall promulgate rules and regulations to require the fingerprint-
7 ing of prospective employees, as defined in section eleven hundred twen-
8 ty-five of this chapter, of school districts, charter schools and boards
9 of cooperative educational services and [authorizing] requiring the
10 fingerprinting of prospective employees of nonpublic and private elemen-
11 tary and secondary schools, and for the use of information derived from
12 searches of the records of the division of criminal justice services and
13 the federal bureau of investigation based on the use of such finger-
14 prints. The commissioner shall also develop a form for use by school
15 districts, charter schools, boards of cooperative educational services,
16 and nonpublic and private elementary and secondary schools in connection
17 with the submission of fingerprints that contains the specific job title
18 sought and any other information that may be relevant to consideration
19 of the applicant. The commissioner shall also establish a form for the
20 recordation of allegations of child abuse in an educational setting, as
21 required pursuant to section eleven hundred twenty-six of this chapter.
22 No person who has been fingerprinted pursuant to section three thousand
23 four-b of this chapter or pursuant to section five hundred nine-cc or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07781-01-3
S. 4129 2
1 twelve hundred twenty-nine-d of the vehicle and traffic law and whose
2 fingerprints remain on file with the division of criminal justice
3 services shall be required to undergo fingerprinting for purposes of a
4 new criminal history record check. This subdivision and the rules and
5 regulations promulgated pursuant thereto shall not apply to a school
6 district within a city with a population of one million or more.
7 § 2. The opening paragraph and subparagraph (i) of paragraph (b) of
8 subdivision 30 of section 305 of the education law, as amended by chap-
9 ter 630 of the laws of 2006, are amended to read as follows:
10 The commissioner, in cooperation with the division of criminal justice
11 services, shall promulgate a form to be provided to all such prospective
12 employees of school districts, charter schools, boards of cooperative
13 educational services, and nonpublic and private elementary and secondary
14 schools [that elect to fingerprint and seek clearance for prospective
15 employees] that shall:
16 (i) inform the prospective employee that the commissioner is required
17 [or authorized] to request his or her criminal history information from
18 the division of criminal justice services and the federal bureau of
19 investigation and review such information pursuant to this section, and
20 provide a description of the manner in which his or her fingerprint
21 cards will be used upon submission to the division of criminal justice
22 services;
23 § 3. Paragraph (d) of subdivision 30 of section 305 of the education
24 law, as amended by chapter 630 of the laws of 2006, is amended to read
25 as follows:
26 (d) The commissioner shall develop forms to be provided to all school
27 districts, charter schools, boards of cooperative educational services,
28 and [to] all nonpublic and private elementary and secondary schools
29 [that elect to fingerprint their prospective employees], to be completed
30 and signed by prospective employees when conditional appointment or
31 emergency conditional appointment is offered.
32 § 4. Subdivision 20 of section 2590-h of the education law, as amended
33 by chapter 345 of the laws of 2009, is amended to read as follows:
34 20. Ensure compliance with qualifications established for all person-
35 nel employed in the city district, including requiring the taking of
36 fingerprints as a prerequisite for licensure and/or employment of such
37 personnel. Every set of fingerprints taken pursuant to this subdivision
38 shall be promptly submitted to the division of criminal justice services
39 where it shall be appropriately processed. Furthermore, the division of
40 criminal justice services is authorized to submit the fingerprints to
41 the federal bureau of investigation for a national criminal history
42 record check.
43 § 5. Subdivision 20 of section 2590-h of the education law, as amended
44 by chapter 100 of the laws of 2003, is amended to read as follows:
45 20. Ensure compliance with qualifications established for all person-
46 nel employed in the city district, including requiring the taking of
47 fingerprints as a prerequisite for licensure and/or employment of such
48 personnel. Every set of fingerprints taken pursuant to this subdivision
49 shall be promptly submitted to the division of criminal justice services
50 where it shall be appropriately processed. Furthermore, the division of
51 criminal justice services is authorized to submit the fingerprints to
52 the federal bureau of investigation for a national criminal history
53 record check.
54 § 6. Subdivisions 1, 2 and 3 of section 3001-d of the education law,
55 as added by chapter 630 of the laws of 2006, are amended to read as
56 follows:
S. 4129 3
1 1. a. "Employee" shall mean any prospective employee of a nonpublic or
2 private elementary or secondary school [which requires the fingerprint-
3 ing of prospective employees pursuant to this section], or employee of a
4 contracted service provider or worker placed within such school under a
5 public assistance employment program, pursuant to title nine-B of arti-
6 cle five of the social services law, and consistent with the provisions
7 of such title for the provision of services to such school, its students
8 or employees, directly or through contract, whereby such services
9 performed by such person involve direct student contact. [Any] Every
10 nonpublic or private elementary or secondary school [which elects to]
11 shall submit for review criminal history information concerning prospec-
12 tive employees [must do so with respect to each such prospective employ-
13 ee], as defined in 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
17 employees pursuant to this section], which involve direct student
18 contact.
19 2. [Any] Every nonpublic or private elementary or secondary school
20 [may] shall require, for the purposes of a criminal history record
21 check, the fingerprinting of all prospective employees pursuant to
22 section three thousand thirty-five of this article, who do not hold
23 valid clearance pursuant to such section or pursuant to section three
24 thousand four-b of this article or section five hundred nine-cc or
25 twelve hundred twenty-nine-d of the vehicle and traffic law. Prior to
26 initiating the fingerprinting process, the prospective employer shall
27 furnish the applicant with the form described in paragraph (c) of subdi-
28 vision thirty of section three hundred five of this chapter and shall
29 obtain the applicant's consent to the criminal history record search.
30 Every set of fingerprints taken pursuant to this section shall be
31 promptly submitted to the commissioner for the purposes of clearance for
32 employment.
33 3. (a) Any nonpublic or private elementary or secondary school may
34 conditionally appoint a prospective employee. A request for conditional
35 clearance [may] shall be forwarded to the commissioner along with the
36 prospective employee's fingerprints. Such appointment may be delayed
37 until notification by the commissioner that the prospective employee has
38 been conditionally cleared for employment and shall terminate when the
39 prospective employer is notified of a determination by the commissioner
40 to grant or deny clearance, provided that if clearance is granted, the
41 appointment shall continue and the conditional status shall be removed.
42 Prior to commencement of such conditional appointment, the prospective
43 employer shall obtain a signed statement for conditional appointment
44 from the prospective employee, indicating whether, to the best of his or
45 her knowledge, he or she has a pending criminal charge or criminal
46 conviction in any jurisdiction outside the state.
47 (b) Any nonpublic or private elementary or secondary school may make
48 an emergency conditional appointment when an unforeseen emergency vacan-
49 cy has occurred. When such appointment is made, the process for condi-
50 tional appointment pursuant to paragraph (a) of this subdivision [may]
51 shall also be initiated. Emergency conditional appointment may commence
52 prior to notification from the commissioner on conditional clearance and
53 shall terminate when the prospective employer is notified by the commis-
54 sioner regarding conditional clearance, provided that if conditional
55 clearance is granted, the appointment may continue as a conditional
56 appointment. Prior to the commencement of such appointment, the
S. 4129 4
1 prospective employer must obtain a signed statement for emergency condi-
2 tional appointment from the prospective employee, indicating whether, to
3 the best of his or her knowledge, he or she has a pending criminal
4 charge or criminal conviction in any jurisdiction. An "unforeseen emer-
5 gency vacancy" shall be defined as: (i) a vacancy that occurred less
6 than ten business days before the start of any school session, including
7 summer school, or during any school session, including summer school,
8 without sufficient notice to allow for clearance or conditional clear-
9 ance; (ii) when no other qualified person is available to fill the
10 vacancy temporarily; and (iii) when emergency conditional appointment is
11 necessary to maintain services which the school is legally required to
12 provide or services necessary to protect the health, education or safety
13 of students or staff.
14 (c) Each nonpublic or private elementary or secondary school[, which
15 elects to fingerprint prospective employees pursuant to subdivision two
16 of this section,] shall develop a policy for the safety of the children
17 who have contact with an employee holding conditional appointment or
18 emergency conditional appointment.
19 § 7. This act shall take effect immediately; provided that the amend-
20 ments to paragraph (d) of subdivision 30 of section 305 of the education
21 law made by section three of this act shall not affect the expiration
22 and repeal of such paragraph and shall expire and be deemed repealed
23 therewith; provided further, however, that the amendments to subdivision
24 20 of section 2590-h of the education law made by section four of this
25 act shall not affect the expiration and repeal of such section and shall
26 expire therewith, when upon such date section five of this act shall
27 take effect.
