STATE OF NEW YORK
________________________________________________________________________
5778
2019-2020 Regular Sessions
IN ASSEMBLY
February 19, 2019
___________
Introduced by M. of A. GALEF -- 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-
24 vant [to consideration of the applicant]. The commissioner shall also
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09179-02-9
A. 5778 2
1 establish a form for the recordation of allegations of child abuse in an
2 educational setting, as required pursuant to section eleven hundred
3 twenty-six of this chapter. No person who has been fingerprinted pursu-
4 ant to section three thousand four-b of this chapter or pursuant to
5 section five hundred nine-cc or twelve hundred twenty-nine-d of the
6 vehicle and traffic law and whose fingerprints remain on file with the
7 division of criminal justice services shall be required to undergo fing-
8 erprinting for purposes of a new criminal history record check. This
9 subdivision and the rules and regulations promulgated pursuant thereto
10 shall not apply to a school district within a city with a population of
11 one million or more.
12 (b) The commissioner, in cooperation with the division of criminal
13 justice services, shall promulgate a form to be provided to all [such]
14 employees and prospective employees of school districts, charter
15 schools, boards of cooperative educational services, and nonpublic and
16 private elementary and secondary schools that elect to fingerprint and
17 seek clearance for [prospective] employees that shall:
18 (i) inform the employee or prospective employee that the commissioner
19 is required or authorized to request his or her criminal history infor-
20 mation from the division of criminal justice services and the federal
21 bureau of investigation and review such information pursuant to this
22 section, and provide a description of the manner in which his or her
23 fingerprint cards will be used upon submission to the division of crimi-
24 nal justice services;
25 (ii) inform the employee or prospective employee that he or she has
26 the right to obtain, review and seek correction of his or her criminal
27 history information pursuant to regulations and procedures established
28 by the division of criminal justice services.
29 (c) The [prospective] employer shall obtain the signed, informed
30 consent of the employee or prospective employee on such form supplied by
31 the commissioner which indicates that such person has:
32 (i) been informed of the right and procedures necessary to obtain,
33 review and seek correction of his or her criminal history information;
34 (ii) been informed of the reason for the request for his or her crimi-
35 nal history information;
36 (iii) consented to such request for a report;
37 (iv) supplied on the form a current mailing or home address for the
38 employee or prospective employee;
39 (v) been informed that he or she may withdraw his or her application
40 for employment pursuant to this section, without prejudice, at any time
41 before employment is offered or declined, regardless of whether the
42 prospective employee or employer has reviewed such prospective employ-
43 ee's criminal history information;
44 (vi) where the applicant or employee is to be fingerprinted pursuant
45 to section three thousand thirty-five of this chapter, the process for
46 seeking a waiver of the fees associated with conducting a criminal
47 history records check, pursuant to paragraph (b) of subdivision four of
48 section three thousand thirty-five of this chapter,
49 (vii) been informed that in the event his or her employment is termi-
50 nated and such person has not become employed in the same or another
51 school district, charter school, board of cooperative educational
52 services, or nonpublic or private elementary or secondary school within
53 twelve-months of such termination, the commissioner shall notify the
54 division of criminal justice services of such termination, and the divi-
55 sion of criminal justice services shall destroy the fingerprints of such
56 person. Such person may request that the commissioner notify the divi-
A. 5778 3
1 sion of criminal justice services that his or her fingerprints shall be
2 destroyed prior to the expiration of such twelve month period in which
3 case the commissioner shall notify the division of criminal justice
4 services and the division shall destroy the fingerprints of such person
5 promptly upon receipt of the request; and
6 (viii) been informed of the manner in which he or she may submit to
7 the commissioner any information that may be relevant to the consider-
8 ation of his or her application for clearance including, where applica-
9 ble, information in regard to his or her good conduct and rehabili-
10 tation.
11 (d) The commissioner shall develop forms to be provided to all school
12 districts, charter schools, boards of cooperative educational services,
13 and to all nonpublic and private elementary and secondary schools that
14 elect to fingerprint their employees and prospective employees, to be
15 completed and signed by employees and prospective employees when condi-
16 tional appointment or emergency conditional appointment is offered.
17 (e) The commissioner may promulgate rules and regulations regarding
18 the conditional appointment and emergency conditional appointment of a
19 prospective employee.
20 § 2. Section 3035 of the education law, as added by chapter 180 of the
21 laws of 2000, subdivision 1 as amended by chapter 630 of the laws of
22 2006, subdivision 3 as amended by section 7 of chapter 630 of the laws
23 of 2006, subdivision 3-a as added by chapter 380 of the laws of 2001,
24 subdivisions 4 and 6 as amended by chapter 182 of the laws of 2000, is
25 amended to read as follows:
26 § 3035. Duties of commissioner; submission of fingerprints. 1. The
27 commissioner shall submit to the division of criminal justice services
28 two sets of fingerprints of all employees and prospective employees as
29 defined in subdivision three of section eleven hundred twenty-five of
30 this chapter received from a school district, charter school or board of
31 cooperative educational services and of all employees and prospective
32 employees received from nonpublic and private elementary and secondary
33 schools pursuant to title two of this chapter, and the division of crim-
34 inal justice services processing fee imposed pursuant to subdivision
35 eight-a of section eight hundred thirty-seven of the executive law and
36 any fee imposed by the federal bureau of investigation. The division of
37 criminal justice services and the federal bureau of investigation shall
38 forward such criminal history record to the commissioner in a timely
39 manner. For the purposes of this section, the term "criminal history
40 record" shall mean a record of all convictions of crimes and any pending
41 criminal charges maintained on an individual by the division of criminal
42 justice services and the federal bureau of investigation. All such crim-
43 inal history records sent to the commissioner pursuant to this subdivi-
44 sion shall be confidential pursuant to the applicable federal and state
45 laws, rules and regulations, and shall not be published or in any way
46 disclosed to persons other than the commissioner, unless otherwise
47 authorized by law.
48 2. No cause of action against the commissioner, the department or the
49 division of criminal justice services for damages related to the dissem-
50 ination of criminal history records pursuant to this section shall exist
51 when the commissioner, department or division of criminal justice
52 services has reasonably and in good faith relied upon the accuracy and
53 completeness of criminal history information furnished to it by quali-
54 fied agencies. The provision of such information by the division of
55 criminal justice services shall be subject to the provisions of subdivi-
56 sion sixteen of section two hundred ninety-six of the executive law. The
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1 consideration of such criminal history record by the commissioner shall
2 be subject to article twenty-three-A of the correction law.
3 3. (a) Clearance. After receipt of a criminal history record from the
4 division of criminal justice services and the federal bureau of investi-
5 gation the commissioner shall promptly notify the appropriate school
6 district, charter school, board of cooperative educational services, or
7 nonpublic or private elementary or secondary school whether the employee
8 or prospective employee to which such report relates is cleared for
9 employment based upon his or her criminal history. All determinations to
10 grant or deny clearance for employment pursuant to this paragraph shall
11 be performed in accordance with subdivision sixteen of section two
12 hundred ninety-six of the executive law and article twenty-three-A of
13 the correction law. When the commissioner denies an employee or a
14 prospective employee clearance for employment, such employee or prospec-
15 tive employee shall be afforded notice and the right to be heard and
16 offer proof in opposition to such determination in accordance with the
17 regulations of the commissioner.
18 (b) Conditional clearance. When the commissioner receives a request
19 for a determination on the conditional clearance of a prospective
20 employee, the commissioner, after receipt of a criminal history record
21 from the division of criminal justice services, shall promptly notify
22 the prospective employee and the appropriate school district, charter
23 school, board of cooperative educational services, or nonpublic or
24 private elementary or secondary school that the prospective employee to
25 which such report relates is conditionally cleared for employment based
26 upon his or her criminal history or that more time is needed to make the
27 determination. If the commissioner determines that more time is needed,
28 the notification shall include a good faith estimate of the amount of
29 additional time needed. Such notification shall be made within fifteen
30 business days after the commissioner receives the prospective employee's
31 fingerprints. All determinations to grant or deny conditional clearance
32 for employment pursuant to this paragraph shall be performed in accord-
33 ance with subdivision sixteen of section two hundred ninety-six of the
34 executive law and article twenty-three-A of the correction law.
35 3-a. Upon request from an employee or a prospective employee who has
36 been cleared by the commissioner for employment and/or certification,
37 the commissioner shall have the authority to forward a copy of such
38 criminal history record to the city school district of the city of New
39 York by the most expeditious means available. Furthermore, upon notifi-
40 cation that such prospective employee is employed by the city school
41 district of the city of New York, the division of criminal justice
42 services shall have the authority to provide subsequent criminal history
43 notifications directly to the city school district of the city of New
44 York. Upon request from an employee or a prospective employee who has
45 been cleared for licensure and/or employment by the city school district
46 of the city of New York, such school district shall have the authority
47 to forward a copy of the employee's or prospective employee's criminal
48 history record to the commissioner, by the most expeditious means avail-
49 able, for the purposes of this section. Furthermore, upon notification
50 that such employee or prospective employee is employed by a school
51 district outside the city of New York, the division of criminal justice
52 services shall have the authority to provide subsequent criminal history
53 notifications directly to the commissioner.
54 4. The fee provisions of subdivision two of section three thousand
55 four-b of this chapter shall apply to criminal history records searches
56 conducted pursuant to this section; provided however that, notwithstand-
A. 5778 5
1 ing the provisions of any other law: (a) the fees associated with an
2 employee participating in a public assistance employment program, pursu-
3 ant to title nine-B of article five of the social services law, or
4 receiving employment services through the federal temporary assistance
5 for needy families block grant pursuant to appropriations to the office
6 of temporary disability assistance, shall be paid by the social services
7 district making such employment placement or assignment and the cost of
8 such fees, if not subject to full reimbursement under such federal block
9 grant, shall be deemed to be an employment services administrative
10 expense. In no event shall such a participant described herein be
11 required to personally pay any fee imposed by the division of criminal
12 justice services or the federal bureau of investigation or any other fee
13 for the purpose of conducting a criminal history records search; and (b)
14 any prospective employee, including, notwithstanding any provision of
15 law to the contrary, a prospective employee applying for a position in a
16 school district within a city with a population of one million or more,
17 may submit a request to a governing body of a school district, on a form
18 prescribed by the commissioner, that the fees imposed for conducting a
19 criminal history records check be waived. Such governing body may grant
20 such a request if such governing body determines that payment of such a
21 fee would impose an unreasonable financial hardship on the applicant or
22 his or her family and, upon such determination, the governing body shall
23 pay such fee on behalf of the prospective employee to the appropriate
24 authority.
25 5. The commissioner and the division of criminal justice services
26 shall enter into an agreement for the purposes of implementing the
27 provisions of this section.
28 6. Nothing in this section shall be construed or interpreted to alter
29 or in any way diminish the integrity of collective bargaining agreements
30 negotiated between an employer and any certified or authorized collec-
31 tive bargaining agent, with respect to payment of fees for criminal
32 history records searches, nor to diminish any rights pursuant to such
33 agreements.
34 § 3. Subdivision 3 of section 3035 of the education law, as amended by
35 section 8 of chapter 630 of the laws of 2006, is amended to read as
36 follows:
37 3. After receipt of a criminal history record from the division of
38 criminal justice services and the federal bureau of investigation the
39 commissioner shall promptly notify the appropriate school district,
40 charter school, board of cooperative educational services, or nonpublic
41 or private elementary or secondary school whether the employee or
42 prospective employee to which such report relates is cleared for employ-
43 ment based upon his or her criminal history. All determinations to grant
44 or deny clearance for employment pursuant to this subdivision shall be
45 performed in accordance with subdivision sixteen of section two hundred
46 ninety-six of the executive law and article twenty-three-A of the
47 correction law. When the commissioner denies an employee or a prospec-
48 tive employee clearance for employment, such employee or prospective
49 employee shall be afforded notice and the right to be heard and offer
50 proof in opposition to such determination in accordance with the regu-
51 lations of the commissioner.
52 § 4. Section 3001-d of the education law, as added by chapter 630 of
53 the laws of 2006, is amended to read as follows:
54 § 3001-d. Criminal history record checks and conditional appointments;
55 nonpublic and private schools. 1. a. "Employee" shall mean any employee
56 or prospective employee of a nonpublic or private elementary or second-
A. 5778 6
1 ary school which requires the fingerprinting of prospective employees
2 pursuant to this section, or employee of a contracted service provider
3 or worker placed within such school under a public assistance employment
4 program, pursuant to title nine-B of article five of the social services
5 law, and consistent with the provisions of such title for the provision
6 of services to such school, its students or employees, directly or
7 through contract, whereby such services performed by such person involve
8 direct student contact. Any nonpublic or private elementary or secondary
9 school which elects to submit for review criminal history information
10 concerning employees and/or prospective employees must do so with
11 respect to each such employee or prospective employee, as defined in
12 this paragraph, in accordance with this section.
13 b. "Volunteer" shall mean any person, other than an employee, who
14 provides services to a nonpublic or private elementary or secondary
15 school which elects to require the fingerprinting of prospective employ-
16 ees pursuant to this section, which involve direct student contact.
17 2. Any nonpublic or private elementary or secondary school may
18 require, for the purposes of a criminal history record check, the fing-
19 erprinting of all employees and/or prospective employees pursuant to
20 section three thousand thirty-five of this article, who do not hold
21 valid clearance pursuant to such section or pursuant to section three
22 thousand four-b of this article or section five hundred nine-cc or
23 twelve hundred twenty-nine-d of the vehicle and traffic law. Prior to
24 initiating the fingerprinting process, the employer or prospective
25 employer shall furnish the applicant or employee with the form described
26 in paragraph (c) of subdivision thirty of section three hundred five of
27 this chapter and shall obtain the employee's or applicant's consent to
28 the criminal history record search. Every set of fingerprints taken
29 pursuant to this section shall be promptly submitted to the commissioner
30 for the purposes of clearance for employment.
31 3. (a) Any nonpublic or private elementary or secondary school may
32 conditionally appoint a prospective employee. A request for conditional
33 clearance may be forwarded to the commissioner along with the prospec-
34 tive employee's fingerprints. Such appointment may be delayed until
35 notification by the commissioner that the prospective employee has been
36 conditionally cleared for employment and shall terminate when the
37 prospective employer is notified of a determination by the commissioner
38 to grant or deny clearance, provided that if clearance is granted, the
39 appointment shall continue and the conditional status shall be removed.
40 Prior to commencement of such conditional appointment, the prospective
41 employer shall obtain a signed statement for conditional appointment
42 from the prospective employee, indicating whether, to the best of his or
43 her knowledge, he or she has a pending criminal charge or criminal
44 conviction in any jurisdiction outside the state.
45 (b) Any nonpublic or private elementary or secondary school may make
46 an emergency conditional appointment when an unforeseen emergency vacan-
47 cy has occurred. When such appointment is made, the process for condi-
48 tional appointment pursuant to paragraph (a) of this subdivision may
49 also be initiated. Emergency conditional appointment may commence prior
50 to notification from the commissioner on conditional clearance and shall
51 terminate when the prospective employer is notified by the commissioner
52 regarding conditional clearance, provided that if conditional clearance
53 is granted, the appointment may continue as a conditional appointment.
54 Prior to the commencement of such appointment, the prospective employer
55 must obtain a signed statement for emergency conditional appointment
56 from the prospective employee, indicating whether, to the best of his or
A. 5778 7
1 her knowledge, he or she has a pending criminal charge or criminal
2 conviction in any jurisdiction. An "unforeseen emergency vacancy" shall
3 be defined as: (i) a vacancy that occurred less than ten business days
4 before the start of any school session, including summer school, or
5 during any school session, including summer school, without sufficient
6 notice to allow for clearance or conditional clearance; (ii) when no
7 other qualified person is available to fill the vacancy temporarily; and
8 (iii) when emergency conditional appointment is necessary to maintain
9 services which the school is legally required to provide or services
10 necessary to protect the health, education or safety of students or
11 staff.
12 (c) Each nonpublic or private elementary or secondary school, which
13 elects to fingerprint employees and/or prospective employees pursuant to
14 subdivision two of this section, shall develop a policy for the safety
15 of the children who have contact with an employee holding conditional
16 appointment or emergency conditional appointment.
17 4. Fees. Notwithstanding any other provision of law to the contrary,
18 the commissioner is authorized to charge additional fees to applicants
19 for certificates pursuant to this section in an amount equal to the fees
20 established pursuant to law by the division of criminal justice services
21 and the federal bureau of investigation for the searches authorized by
22 this section.
23 § 5. This act shall take effect on the one hundred eightieth day after
24 it shall have become a law; provided that the amendments to paragraphs
25 (d) and (e) of subdivision 30 of section 305 of the education law made
26 by section one of this act, shall not affect the repeal of such
27 provisions and shall expire and be deemed repealed therewith; and
28 provided further that the amendments to subdivision 3 of section 3035 of
29 the education law made by section two of this act shall be subject to
30 the expiration of such subdivision when upon such date the provisions of
31 section three of this act shall take effect.
