Ren S168-w to be S168-x, add S168-w, Cor L; add S837-s, Exec L
Prohibits sex offenders from any position involving substantial contact with children; requires a criminal history check for child care employees and volunteers; appropriates $50,000 therefor.
STATE OF NEW YORK
________________________________________________________________________
6548
2009-2010 Regular Sessions
IN ASSEMBLY
March 6, 2009
___________
Introduced by M. of A. SCOZZAFAVA, McDONOUGH -- Multi-Sponsored by -- M.
of A. ALFANO, BACALLES, BARCLAY, BARRA, BURLING, CALHOUN, CONTE,
CROUCH, ERRIGO, FINCH, FITZPATRICK, GIGLIO, HAYES, KOLB, MILLER, OAKS,
O'MARA, QUINN, RABBITT, RAIA, REILICH, SALADINO, SAYWARD, TEDISCO,
THIELE, TOWNSEND -- read once and referred to the Committee on
Correction
AN ACT to amend the correction law, in relation to prohibiting sex
offenders from any position involving substantial contact with chil-
dren; and to amend the executive law, in relation to requiring a crim-
inal history check for child care employees and volunteers; and making
an appropriation therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 168-w of the correction law, as relettered by chap-
2 ter 604 of the laws of 2005, is relettered section 168-x and a new
3 section 168-w is added to read as follows:
4 § 168-w. Sex offenders shall not be employed in a position involving
5 substantial contact with children. 1. No sex offender shall apply for or
6 accept a position which involves substantial contact with children. Such
7 position shall include any job, task or occupation, which by its nature,
8 requires a person to be in substantial contact with children in the
9 regular performance of his or her duties or dealings in said position.
10 This section shall also apply to any person seeking a permit or permis-
11 sion to execute any activity or performance that would present a direct
12 contact with children.
13 2. The definition of "position" as used in this section shall apply to
14 any person seeking employment either paid or not paid, any person seek-
15 ing to volunteer, or any person seeking a permit or permission that
16 would present a substantial contact with children.
17 3. Examples of such employment include, but are not limited to:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08556-01-9
A. 6548 2
1 a. Any position in a school including teachers, teacher-aides, admin-
2 istrators, assistants, cafeteria workers, janitors, nurses or any other
3 person working in a school that would have contact with the children
4 attending said school;
5 b. Any position in a child-care facility;
6 c. Any recreational position such as a coach, boy scout or girl scout
7 leader, camp counselor, lifeguard, instructors or any other recreational
8 area that would present a substantial contact with children;
9 d. Any position in a park, playground, amusement park, pool or any
10 other facility or area where children have a propensity to inhabit;
11 e. Any store or restaurant that is specifically targeted towards chil-
12 dren such as a toy store or children's theme restaurant;
13 f. Any position whereas a person would be employed in an area that
14 specifically is targeted towards children such as an ice cream truck
15 operator;
16 g. Any person applying for a permit or permission that would grant
17 said person the ability to carry out any activity or action that is
18 directed towards or would involve substantial contact with children.
19 4. Employers, organizations or government entities shall have access
20 to the statewide central registry of child abuse and maltreatment for
21 the purpose of performing a background check for any convictions of
22 sexual abuse of a child. Any employer, organization or government entity
23 shall check any potential employees seeking to assume a position that
24 will be in substantial contact with children against both the statewide
25 central registry of child abuse and maltreatment and the registered sex
26 offenders database to ascertain if said person maintains a conviction
27 for sexual abuse of a child.
28 5. "Substantial contact with children" as used in this section means
29 working with children, having access to children, having opportunity to
30 be alone with children, spending time with children, performing for
31 children or any other activity that involves children.
32 6. a. Any sex offender who applies for or accepts employment in
33 violation of this section shall be guilty of a class A misdemeanor upon
34 conviction for the first offense, and upon conviction for a second or
35 subsequent offense shall be guilty of a class D felony.
36 b. Any employer who knowingly employs a sex offender in violation of
37 this section shall, upon conviction, be guilty of a class A misdemeanor.
38 § 2. The executive law is amended by adding a new section 837-s to
39 read as follows:
40 § 837-s. Requests for criminal history information concerning new and
41 prospective child care employees. 1. An employer and volunteer organiza-
42 tion shall request and are authorized to receive from the division crim-
43 inal history information concerning each new and prospective employee
44 and volunteer who in connection with such employment for service will be
45 in contact with persons under the age of eighteen, subject to the
46 following restrictions:
47 (a) an employer or volunteer organization shall designate one person
48 who shall be authorized to request, receive and review criminal history
49 information, and only such person and the new or prospective employee
50 and volunteer who in connection with such employment for service will be
51 in contact with persons under the age of eighteen to which the criminal
52 history information relates shall have access to such information;
53 provided, however, that criminal history information may be disclosed to
54 other personnel authorized by the employer or volunteer organization who
55 are empowered by such employer or volunteer organization to make hiring
56 decisions concerning new or prospective employees or volunteers and
A. 6548 3
1 provided further that such other personnel shall also be subject to the
2 confidentiality requirements and all other provisions of this article.
3 An employer or volunteer organization shall notify the division of each
4 person authorized to have access to criminal history information pursu-
5 ant to this section;
6 (b) an employer or volunteer organization requesting criminal history
7 information pursuant to this section shall do so by completing a form
8 developed for such purpose by the division. Such form shall include a
9 sworn statement of the person designated by the employer or volunteer
10 organization to request, receive and review criminal history information
11 pursuant to paragraph (a) of this subdivision certifying that (i) the
12 person whose criminal history information is requested is not presently
13 but has applied to be an employee or volunteer, or is a new employee or
14 volunteer; (ii) such criminal history information will be used by the
15 employer or volunteer organization solely for purposes authorized by
16 this article; and (iii) the employer or volunteer organization and its
17 staff are aware of and will abide by the confidentiality requirements
18 and all other provisions of this article;
19 (c) the person designated by an employer or volunteer organization for
20 receipt of criminal history information pursuant to paragraph (a) of
21 this subdivision shall upon receipt immediately mark such criminal
22 history information "confidential", and shall at all times maintain such
23 criminal history information in a secure place. Any person who willful-
24 ly permits the release of any confidential criminal history information
25 contained in the report to persons not permitted by this article to
26 receive such information shall be guilty of a misdemeanor.
27 2. Notwithstanding subdivision eight-a of section eight hundred thir-
28 ty-seven of this article there shall be no fee charged to an employer or
29 volunteer organization or an employee or volunteer for a request for
30 criminal history information submitted to the division pursuant to this
31 section.
32 3. To the extent permitted by law, an employer or volunteer organiza-
33 tion may request from a new or prospective employee or volunteer a
34 statement of his or her prior criminal convictions in this state or any
35 other jurisdiction. Prior to requesting criminal history information
36 concerning any new or prospective employee or volunteer, each employer
37 or volunteer organization shall:
38 (a) inform the new or prospective employee or volunteer in writing
39 that the employer or volunteer organization is required to request his
40 or her criminal history information from the division and review such
41 information pursuant to this section;
42 (b) inform the new or prospective employee or volunteer that before
43 the employer or volunteer organization requests such criminal history
44 information, the new or prospective employee or volunteer has the right
45 to obtain, review and seek correction of his or her criminal history
46 information pursuant to regulations and procedures established by the
47 division;
48 (c) obtain the signed informed consent of the new or prospective
49 employee or volunteer on a form supplied by the division which indicates
50 that such person has:
51 (i) been informed of the right and procedures necessary to obtain,
52 review and seek correction of his or her criminal history information;
53 (ii) been informed of the reason for the request for his or her crimi-
54 nal history information;
55 (iii) consented to such request; and
A. 6548 4
1 (d) upon receiving such written consent, obtain the fingerprints of
2 such new or prospective employee or volunteer pursuant to regulations
3 established by the division.
4 4. A new or prospective employee or volunteer may withdraw from the
5 application process, without prejudice, at any time regardless of wheth-
6 er or not he or she has reviewed his or her criminal history information
7 or the employer or volunteer organization has received criminal history
8 information. Where a new or prospective employee or volunteer withdraws
9 from the application process, any fingerprints and criminal history
10 information concerning such new or prospective employee or volunteer
11 received by the employer or volunteer organization shall be immediately
12 returned to such new or prospective employee or volunteer by the person
13 designated for receipt of criminal history information pursuant to para-
14 graph (a) of subdivision one of this section.
15 5. In all cases the fingerprints and criminal history information
16 concerning a new or prospective employee or volunteer shall be imme-
17 diately returned to such person by the person designated for receipt of
18 criminal history information upon the denial of employment or voluntary
19 services or termination of employment or voluntary services of such
20 employee or volunteer.
21 6. The division shall provide requested criminal history information
22 and return fingerprints to an employer or volunteer organization within
23 fifteen business days after the receipt of a request for criminal histo-
24 ry information if such request is:
25 (a) made by the person designated by the employer or volunteer organ-
26 ization for receipt of criminal history information pursuant to para-
27 graph (a) of subdivision one of this section and accompanied by the
28 certification required by paragraph (b) of subdivision one of this
29 section;
30 (b) accompanied by the completed form described in paragraph (c) of
31 subdivision three of this section; and
32 (c) accompanied by fingerprints of the new or prospective employee or
33 volunteer obtained pursuant to paragraph (d) of subdivision three of
34 this section.
35 7. The commissioner shall promulgate all rules and regulations neces-
36 sary to implement the provisions of this article, which shall include
37 convenient procedures for new and prospective employees and volunteers
38 to promptly verify the accuracy of their criminal history information
39 and, to the extent authorized by law, to have access to relevant docu-
40 ments related thereto.
41 § 3. The sum of fifty thousand dollars ($50,000), or so much thereof
42 as may be necessary, is hereby appropriated out of moneys in the state
43 treasury in the general fund to the credit of the state purposes
44 account, not otherwise appropriated, and made immediately available to
45 the division of criminal justice services for distribution to non-profit
46 organizations required to perform criminal history checks pursuant to
47 this act. Such moneys shall be payable on the audit and warrant of the
48 comptroller on vouchers certified or approved in the manner prescribed
49 by law.
50 § 4. This act shall take effect on the first of January next succeed-
51 ing the date on which it shall have become a law.
