S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    392
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sen. KAMINSKY -- 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01026-01-1

 S. 392                              2
 
 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
 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.
   § 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;
   § 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.
   § 4. Subdivision 20 of section 2590-h of the education law, as amended
 by chapter 345 of the laws of 2009, is amended to read as follows:
   20. Ensure compliance with qualifications established for all  person-
 nel  employed  in  the  city district, including REQUIRING the taking of
 fingerprints as a prerequisite for licensure and/or employment  of  such
 personnel.  Every set of fingerprints taken pursuant to this subdivision
 shall be promptly submitted to the division of criminal justice services
 where it shall be appropriately processed. Furthermore, the division  of
 criminal  justice  services  is authorized to submit the fingerprints to
 the federal bureau of investigation  for  a  national  criminal  history
 record check.
   § 5. Subdivision 20 of section 2590-h of the education law, as amended
 by chapter 100 of the laws of 2003, is amended to read as follows:
   20.  Ensure compliance with qualifications established for all person-
 nel employed in the city district, including  REQUIRING  the  taking  of
 fingerprints  as  a prerequisite for licensure and/or employment of such
 personnel. Every set of fingerprints taken pursuant to this  subdivision
 shall be promptly submitted to the division of criminal justice services
 where  it shall be appropriately processed. Furthermore, the division of
 criminal justice services is authorized to submit  the  fingerprints  to
 the  federal  bureau  of  investigation  for a national criminal history
 record check.

 S. 392                              3
 
   § 6. 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
 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-

 S. 392                              4
 
 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.
   § 7. This act shall take effect immediately; 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; provided further, however, that the amendments to subdivision
 20  of  section 2590-h of the education law made by section four of this
 act shall not affect the expiration and repeal of such section and shall
 expire therewith, when upon such date section five  of  this  act  shall
 take effect.