S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3109

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 11, 2009
                               ___________

Introduced  by  Sen.  SKELOS -- 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:

  Section 1. Paragraph (a) of subdivision  30  of  section  305  of  the
education law, as amended by chapter 630 of the laws of 2006, is amended
to read as follows:
  (a)  The  commissioner,  in  cooperation with the division of criminal
justice services and in accordance with  all  applicable  provisions  of
law,  shall promulgate rules and regulations to require the fingerprint-
ing of prospective employees, as defined in section eleven hundred twen-
ty-five of this chapter, of school districts, charter schools and boards
of cooperative educational  services  and  [authorizing]  REQUIRING  the
fingerprinting of prospective employees of nonpublic and private elemen-
tary  and secondary schools, and for the use of information derived from
searches of the records of the division of criminal justice services and
the federal bureau of investigation based on the  use  of  such  finger-
prints.  The  commissioner  shall  also develop a form for use by school
districts, charter schools, boards of cooperative educational  services,
and nonpublic and private elementary and secondary schools in connection
with the submission of fingerprints that contains the specific job title
sought  and  any other information that may be relevant to consideration
of the applicant. The commissioner shall also establish a form  for  the
recordation  of allegations of child abuse in an educational setting, as
required pursuant to section eleven hundred twenty-six of this  chapter.
No  person who has been fingerprinted pursuant to section three thousand
four-b of this chapter or pursuant to section five  hundred  nine-cc  or
twelve  hundred  twenty-nine-d  of the vehicle and traffic law and whose
fingerprints remain on  file  with  the  division  of  criminal  justice
services  shall  be required to undergo fingerprinting for purposes of a

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09638-01-9

S. 3109                             2

new criminal history record check. This subdivision and  the  rules  and
regulations  promulgated  pursuant  thereto  shall not apply to a school
district within a city with a population of one million or more.
  S  2.  The  opening paragraph and subparagraph (i) of paragraph (b) of
subdivision 30 of section 305 of the education law, as amended by  chap-
ter 630 of the laws of 2006, are amended to read as follows:
  The commissioner, in cooperation with the division of criminal justice
services, shall promulgate a form to be provided to all such prospective
employees  of  school  districts, charter schools, boards of cooperative
educational services, and nonpublic and private elementary and secondary
schools [that elect to fingerprint and seek  clearance  for  prospective
employees] that shall:
  (i)  inform the prospective employee that the commissioner is required
[or authorized] to request his or her criminal history information  from
the  division  of  criminal  justice  services and the federal bureau of
investigation and review such information pursuant to this section,  and
provide  a  description  of  the  manner in which his or her fingerprint
cards will be used upon submission to the division of  criminal  justice
services;
  S  3.  Paragraph (d) of subdivision 30 of section 305 of the education
law, as amended by chapter 630 of the laws of 2006, is amended  to  read
as follows:
  (d)  The commissioner shall develop forms to be provided to all school
districts, charter schools, boards of cooperative educational  services,
and  [to]  all  nonpublic  and  private elementary and secondary schools
[that elect to fingerprint their prospective employees], to be completed
and signed by prospective  employees  when  conditional  appointment  or
emergency conditional appointment is offered.
  S  4.  Subdivisions 1, 2 and 3 of section 3001-d of the education law,
as added by chapter 630 of the laws of 2006,  are  amended  to  read  as
follows:
  1. a. "Employee" shall mean any prospective employee of a nonpublic or
private  elementary or secondary school [which requires the fingerprint-
ing of prospective employees pursuant to this section], or employee of a
contracted service provider or worker placed within such school under  a
public  assistance employment program, pursuant to title nine-B of arti-
cle five of the social services law, and consistent with the  provisions
of such title for the provision of services to such school, its students
or  employees,  directly  or  through  contract,  whereby  such services
performed by such person involve direct  student  contact.  [Any]  EVERY
nonpublic  or  private  elementary or secondary school [which elects to]
SHALL submit for review criminal history information concerning prospec-
tive employees [must do so with respect to each such prospective employ-
ee], as defined in this paragraph, in accordance with this section.
  b. "Volunteer" shall mean any person,  other  than  an  employee,  who
provides  services  to  a  nonpublic  or private elementary or secondary
school [which  elects  to  require  the  fingerprinting  of  prospective
employees  pursuant  to  this  section],  which  involve  direct student
contact.
  2. [Any] EVERY nonpublic or private  elementary  or  secondary  school
[may]  SHALL  require,  for  the  purposes  of a criminal history record
check, the fingerprinting  of  all  prospective  employees  pursuant  to
section  three  thousand  thirty-five  of  this article, who do not hold
valid clearance pursuant to such section or pursuant  to  section  three
thousand  four-b  of  this  article  or  section five hundred nine-cc or
twelve hundred twenty-nine-d of the vehicle and traffic  law.  Prior  to

S. 3109                             3

initiating  the  fingerprinting  process, the prospective employer shall
furnish the applicant with the form described in paragraph (c) of subdi-
vision thirty of section three hundred five of this  chapter  and  shall
obtain  the  applicant's  consent to the criminal history record search.
Every set of fingerprints  taken  pursuant  to  this  section  shall  be
promptly submitted to the commissioner for the purposes of clearance for
employment.
  3.  (a)  Any  nonpublic  or private elementary or secondary school may
conditionally appoint a prospective employee. A request for  conditional
clearance  [may]  SHALL  be forwarded to the commissioner along with the
prospective employee's fingerprints. Such  appointment  may  be  delayed
until notification by the commissioner that the prospective employee has
been  conditionally  cleared for employment and shall terminate when the
prospective employer is notified of a determination by the  commissioner
to  grant  or deny clearance, provided that if clearance is granted, the
appointment shall continue and the conditional status shall be  removed.
Prior  to  commencement of such conditional appointment, the prospective
employer shall obtain a signed  statement  for  conditional  appointment
from the prospective employee, indicating whether, to the best of his or
her  knowledge,  he  or  she  has  a pending criminal charge or criminal
conviction in any jurisdiction outside the state.
  (b) Any nonpublic or private elementary or secondary school  may  make
an emergency conditional appointment when an unforeseen emergency vacan-
cy  has  occurred. When such appointment is made, the process for condi-
tional appointment pursuant to paragraph (a) of this  subdivision  [may]
SHALL  also be initiated. Emergency conditional appointment may commence
prior to notification from the commissioner on conditional clearance and
shall terminate when the prospective employer is notified by the commis-
sioner regarding conditional clearance,  provided  that  if  conditional
clearance  is  granted,  the  appointment  may continue as a conditional
appointment.   Prior  to  the  commencement  of  such  appointment,  the
prospective employer must obtain a signed statement for emergency condi-
tional appointment from the prospective employee, indicating whether, to
the  best  of  his  or  her  knowledge, he or she has a pending criminal
charge or criminal conviction in any jurisdiction. An "unforeseen  emer-
gency  vacancy"  shall  be  defined as: (i) a vacancy that occurred less
than ten business days before the start of any school session, including
summer school, or during any school session,  including  summer  school,
without  sufficient  notice to allow for clearance or conditional clear-
ance; (ii) when no other qualified  person  is  available  to  fill  the
vacancy temporarily; and (iii) when emergency conditional appointment is
necessary  to  maintain services which the school is legally required to
provide or services necessary to protect the health, education or safety
of students or staff.
  (c) Each nonpublic or private elementary or secondary  school[,  which
elects  to fingerprint prospective employees pursuant to subdivision two
of this section,] shall develop a policy for the safety of the  children
who  have  contact  with  an employee holding conditional appointment or
emergency conditional appointment.
  S 5. This act shall take effect July 1, 2010; provided that the amend-
ments to paragraph (d) of subdivision 30 of section 305 of the education
law, made by section three of this act shall not affect  the  expiration
and  repeal  of  such paragraph, and shall expire and be deemed repealed
therewith.