Criminal History Reviews Under Senate Bill 9

Holly Claghorn, Senior AttorneyTexas Association of School Boards

September 10, 2008

What is a Criminal History?

• Arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions

• But not:– Fingerprint records– Driving records

Types of Criminal Histories

• State – DPS database• National – FBI• Private consumer reporting agencies

– Fair Credit Reporting Act

Confidentiality

• Limited access– Statutory authorization– Person who is subject of record

• Limited use– Re-disclosure?

• Criminal penalties

Mandatory Reviews Under SB9

• Certified employees and substitute teachers

• Noncertified and contractor employees• Student teachers and volunteers

What type of history?

Nat’l (fingerprint-based)

• Certified employees and substitute teachers

• Noncertified and contractor employees hired after 1/1/08

State (name-based)• Student teachers

and volunteers• Noncertified and

contractor employees hired before 1/1/08

Deadlines

• 9/1/07: Student teachers and volunteers

• 1/1/08: Noncertified and contractor employees (new hires)

• 9/1/11: Certified employees and substitute teachers

Fingerprinting Procedures – Certified and Substitute

• Notice to district• Employee contact info to SBEC• Fingerprint authorization to employees• Employees submit info to SBEC

– Conditional employment (subs only)

Fingerprinting Procedures – Noncertified (on or after 1/1/08)

• District certifies employment offer to SBEC

• Fingerprint authorization to employee• Employee submits info to SBEC

– Conditional employment

Disqualifying Convictions

Offense against minor or student:– Title 5 felony– Registered sex offender

• Exceptions:– 30 years ago– Satisfied court requirements– n/a to contractors

Local Standards

Factors to consider:• Degree of offense• Age at time of offense• Number of offenses• Time since last offense• Relationship between offense and job

TEA’s Proposed Rules - 19 Tex. Admin. Code 153

• Definitions• District responsibilities• Contractor responsibilities

Contractor Employees – Three Prongs

• Employed by service contractor• Has continuing duties related to

contracted services• Will have direct contact with students

Contractor Employees – Three Prongs

• Employed by service contractor– Subcontractor– Independent contractor

• Continuing duties related to contracted services

• Direct contact with students

Contractor Employees –TEA’s Proposed Rules

• Definitions• District responsibilities• Contractor responsibilities

19 Tex. Admin. Code 153 (proposed)

“Continuing duties”

• Regular, repeated basis• NOT: infrequent or one-time only

Direct contact

• Substantial opportunity for unsupervised verbal or physical interaction with students– E.g.: coaching or tutoring– NOT:

•guest speakers•sports officials•UIL judges

Date of employment

• Individual: date of contract or agreement

• Employee: date of first compensated services for the contractor

District responsibilities

• Obtain certification from service contractors

• Apply standards– May adopt higher standard

• Report to SBEC– Certified contract employees

Contractor responsibilities

• Register with DPS• Obtain criminal histories on own

employees and employees of subcontractors– On or after 1/1/08: NCHRI– Before 1/1/08: CHRI or private report

• Certify to district• Disqualify certain employees

Covered contractor employee-- Review

• Employee of contractor or subcontractor, or independent contractor

• Continuing duties• Direct contact with students

– Substantial opportunity– Unsupervised

Visitors

• Sex offender database check– Any campus visitor– Government i.d.

• Local procedures

Employee Background Checks:Senate Bill 9 and Other Delights

Thank you!