Fingerprinting
Chapter 630 of the Laws of 2006
AN ACT to amend the education law, in relation to authorizing nonpublic and private elementary and secondary schools to apply to the commissioner of education for criminal history record checks on prospective employees, providing for conditional appointment of prospective employees
Became a law August 16, 2006, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.
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 added by chapter 180 of the laws of 2000, 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 twenty-five of this chapter, of school districts, charter schools and boards of cooperative educational services and authorizing the fingerprinting of prospective employees of nonpublic and private elementary 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 fingerprints. The commissioner shall also develop a form for use by school districts, charter schools [and], 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 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 added by chapter
180 of the laws of 2000, 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 [and], boards of cooper ative educational services, and nonpublic and private elementary and
EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.
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. Subparagraph (vii) of paragraph (c) of subdivision 30 of section 305 of the education law, as added by chapter 180 of the laws of 2000 and as renumbered by chapter 182 of the laws of 2000, is amended to read as follows:
(vii) been informed that in the event his or her employment is termi nated and such person has not become employed in the same or another school district, charter school [or], board of cooperative educational services, or nonpublic or private elementary or secondary school within twelve-months of such termination, the commissioner shall notify the division of criminal justice services of such termination, and the division of criminal justice services shall destroy the fingerprints of such person. Such person may request that the commissioner notify the division of criminal justice services that his or her fingerprints shall be destroyed prior to the expiration of such twelve month period in which case the commissioner shall notify the division of criminal justice services and the division shall destroy the fingerprints of such person promptly upon receipt of the request; and
§ 4. Paragraph (d) of subdivision 30 of section 305 of the education law, as added by chapter 147 of the laws of 2001, is amended to read as follows:
(d) The commissioner shall develop forms to be provided to all school districts, charter schools [and], 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.
§ 5. The education law is amended by adding a new section 3001-d to read as follows:
§ 3001-d. Criminal history record checks and conditional appointments;
nonpublic and private schools. 1. a. "Employee" shall mean any prospective employee of a nonpublic or private elementary or secondary school which requires the fingerprinting 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 article 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 nonpublic or private elementary or secondary school which elects to submit for review criminal history information concern-
ing prospective employees must do so with respect to each such prospective employee, 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 employ ees pursuant to this section, which involve direct student contact.
2. Any nonpublic or private elementary or secondary school may 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 subdivision 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 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 vacancy has occurred. When such appointment is made, the process for condi-
tional appointment pursuant to paragraph (a) of this subdivision may 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 commissioner 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 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. An "unforeseen emergency 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 clearance; (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.
4. Fees. Notwithstanding any other provision of law to the contrary, the commissioner is authorized to charge additional fees to applicants for certificates pursuant to this section in an amount equal to the fees
established pursuant to law by the division of criminal justice services and the federal bureau of investigation for the searches authorized by this section.
§ 6. Subdivision 1 of section 3035 of the education law, as added by chapter 180 of the laws of 2000, is amended to read as follows:
1. The commissioner shall submit to the division of criminal justice services two sets of fingerprints of prospective employees as defined in subdivision three of section eleven hundred twenty-five of this chapter received from a school district, charter school or board of cooperative educational services and of prospective employees received from nonpublic and private elementary and secondary schools pursuant to title two
of this chapter, and the division of criminal justice services processing fee imposed pursuant to subdivision eight-a of section eight hundred thirty-seven of the executive law and any fee imposed by the federal bureau of investigation. The division of criminal justice services and the federal bureau of investigation shall forward such criminal history record to the commissioner in a timely manner. For the purposes of this section, the term "criminal history record" shall mean a record of all convictions of crimes and any pending criminal charges maintained on an individual by the division of criminal justice services and the federal bureau of investigation. All such criminal history records sent to the commissioner pursuant to this subdivision shall be confidential pursuant to the applicable federal and state laws, rules and regulations, and shall not be published or in any way disclosed to persons other than the commissioner, unless otherwise authorized by law.
§ 7. Subdivision 3 of section 3035 of the education law, as amended by chapter 147 of the laws of 2001, is amended to read as follows:
3. (a) Clearance. After receipt of a criminal history record from the division of criminal justice services and the federal bureau of investigation the commissioner shall promptly notify the appropriate school district, charter school [or], board of cooperative educational services, or nonpublic or private elementary or secondary school whether the prospective employee to which such report relates is cleared for employment based upon his or her criminal history. All determinations to grant or deny clearance for employment pursuant to this paragraph shall
be performed in accordance with subdivision sixteen of section two hundred ninety-six of the executive law and article twenty-three-A of the correction law. When the commissioner denies a prospective employee clearance for employment, such prospective employee shall be afforded notice and the right to be heard and offer proof in opposition to such determination in accordance with the regulations of the commissioner.
(b) Conditional clearance. When the commissioner receives a request for a determination on the conditional clearance of a prospective employee, the commissioner, after receipt of a criminal history record from the division of criminal justice services, shall promptly notify the prospective employee and the appropriate school district, charter school, [or] board of cooperative educational services, or nonpublic or private elementary or secondary school that the prospective employee to
which such report relates is conditionally cleared for employment based upon his or her criminal history or that more time is needed to make the determination. If the commissioner determines that more time is needed, the notification shall include a good faith estimate of the amount of additional time needed. Such notification shall be made within fifteen business days after the commissioner receives the prospective employee's fingerprints. All determinations to grant or deny conditional clearance for employment pursuant to this paragraph shall be performed in accord ance with subdivision sixteen of section two hundred ninety-six of the executive law and article twenty-three-A of the correction law.
§ 8. Subdivision 3 of section 3035 of the education law, as added by chapter 180 of the laws of 2000, is amended to read as follows:
3. After receipt of a criminal history record from the division of
criminal justice services and the federal bureau of investigation the commissioner shall promptly notify the appropriate school district, charter school [or], board of cooperative educational services, or nonpublic or private elementary or secondary school whether the prospective employee to which such report relates is cleared for employment based upon his or her criminal history. All determinations to grant or deny clearance for employment pursuant to this subdivision shall be performed in accordance with subdivision sixteen of section two hundred
ninety-six of the executive law and article twenty-three-A of the correction law. When the commissioner denies a prospective employee clearance for employment, such prospective employee shall be afforded notice and the right to be heard and offer proof in opposition to such determination in accordance with the regulations of the commissioner.
§ 9. This act shall take effect on the first of July next succeeding the date on which it shall have become a law, provided that the amend ments to paragraph (d) of subdivision 30 of section 305 of the education law, made by section four of this act shall not affect the expiration and repeal of such paragraph, and shall expire and be deemed repealed therewith, provided, further that the amendments to subdivision 3 of section 3035 of the education law, made by section seven of this act, shall not affect the expiration and reversion of such subdivision and
shall expire therewith, when upon such date section eight of this act shall take effect.
The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.
JOSEPH L. BRUNO, Temporary President of the Senate
SHELDON SILVER, Speaker of the Assembly