LAWS of New York 2001, CHAPTER 180

AN ACT to amend the education law, in relation to the protection of pupils in educational settings from abuse and maltreatment and requiring the fingerprinting of prospective employees of school districts, charter schools and boards of cooperative educational services and teachers and administrators applying for licensure or certification

Became a law July 24, 2000, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Legislative findings and intent. The legislature finds and declares that the overwhelming majority of teachers and school personnel provide a skilled, safe and appropriate learning environment for New York's schoolchildren. Notwithstanding the commitment and dedication of these individuals, the abuse of children when they are in educational settings by persons in a position of trust is an ongoing and persistent problem. This problem is largely unaddressed in state statute or regulation. No standard statewide policy exists for the reporting, investigation or identification of this form of child abuse. Standardization and consistency are necessary and appropriate for the protection of the school children of New York state.

The legislature further finds that the reporting of allegations of child abuse in an educational setting must be formal, consistent and well documented. The investigation of such allegations of criminal conduct must not be undertaken by school personnel but must be the responsibility of law enforcement agencies who are trained and qualified to conduct such investigations. The "arms length" character of a law enforcement investigation of allegations of child abuse in an educational setting will promote the objectivity of such investigation and will protect the rights and interests of the alleged victim, the accused and the school community.

Other than in the city of New York, New York state is without legal authority to fingerprint and conduct state and federal criminal records checks of individuals seeking employment in a public school district, nor is there authority to conduct such criminal records checks of individuals seeking state certification as teachers in our public schools. This glaring weakness in our laws to protect the children of our state continues despite the existence of fingerprint and criminal record check requirements for many other professions and licenses in New York.

The legislature further finds that the practice of "quiet resignations" whereby an employee is allowed to resign his or her position in a school district in lieu of an investigation of child abuse allegations permits and perpetuates an abuser's ability to harm children in multiple school districts of subsequent employment. The acceptance of a "quiet resignation" impermissibly denies subsequent school district employers critical information necessary to protect their school children from exposure to a high risk of harm from an employee with a prior history of child abuse in an educational setting. It is the intention of the legislature that acceptance of a "quiet resignation" be unlawful and violative of the public policy of New York state.

Therefore, the legislature finds that enactment of this legislation is necessary and appropriate to make certain that school employment not be a point of access for the abuse of our state's school children.

ection 305 of the education law is amended by adding a new subdivision 30 to read as follows:

30. (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 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 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.

(b) 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 cooperative educational services that shall:

(i) inform the prospective employee that the commissioner is required 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;

(ii) inform the prospective employee that he or she has the right to obtain, review and seek correction of his or her criminal history information pursuant to regulations and procedures established by the division of criminal justice services.

(c) The prospective employer shall obtain the signed, informed consent of the prospective employee on such form supplied by the commissioner which indicates that such person has:

(i) been informed of the right and procedures necessary to obtain, review and seek correction of his or her criminal history information;

(ii) been informed of the reason for the request for his or her criminal history information;

(iii) consented to such request for a report;

(iv) supplied on the form a current mailing or home address for the prospective employee;

(v) been informed that he or she may withdraw his or her application for employment pursuant to this section, without prejudice, at any time before employment is offered or declined, regardless of whether the prospective employee or employer has reviewed such prospective employee's criminal history information;

(vi) been informed that in the event his or her employment is terminated and such person has not become employed in the same or another school district, charter school or board of cooperative educational services 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

(vii) been informed of the manner in which he or she may submit to the commissioner any information that may be relevant to the consideration of his or her application for clearance including, where applicable, information in regard to his or her good conduct and rehabilitation.

§ 3. The education law is amended by adding two new sections 3004-b and 3004-c to read as follows:

§ 3004-b. Special procedures for certification.

1. Criminal history records search. Upon receipt of an application for certification as a superintendent of schools, teacher, administrator or supervisor, teaching assistant or school personnel required to hold a teaching or administrative license or certificate, the commissioner shall, subject to the rules and regulations of the division of criminal justice services, initiate a criminal history records search of the person making application. Prior to initiating the fingerprinting process, the commissioner 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 records search. The commissioner shall obtain from each applicant two sets of fingerprints 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 commissioner shall promptly transmit such fingerprints and fees to the division of criminal justice services for its full search and retain processing. The division of criminal justice services is authorized to submit the fingerprints and the appropriate fee to the federal bureau of investigation for a national criminal history record check. 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. In addition, upon request from an applicant who has applied for employment with the city school district of the city of New York, the commissioner shall have the authority to forward a copy of such criminal history record to the city school district of the city of New York by the most expeditious means available. Furthermore, upon notification that an applicant is employed by the city school district of the city of New York, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the city school district of the city of New York. All such criminal history records processed and sent 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. No cause of action against the department or the division of criminal justice services for damages related to the dissem- ination of criminal history records pursuant to this subdivision shall exist when the department or division of criminal justice services has reasonably and in good faith relied upon the accuracy and completeness of criminal history information furnished to it by qualified agencies. The provision of such criminal history record by the division of criminal justice services shall be subject to the provisions of subdivision sixteen of section two hundred ninety-six of the executive law. The commissioner shall consider such criminal history record pursuant to article twenty-three-A of the correction law.

2. Fees. Notwithstanding any other provision of law to the contrary, the commissioner is authorized to charge additional fees to applicants for teaching or administrative licenses or certificates 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 mandated by this section.

§ 3004-c. Denial of application for certification. When the commissioner determines that a certification should be denied, the applicant 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.

§ 4. Section 1604 of the education law is amended by adding two new subdivisions 39 and 40 to read as follows:

39. Shall require, for purposes of a criminal history record check, the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter 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 records search. Every set of fingerprints taken pursuant to this subdivision shall be promptly submitted to the commissioner for purposes of clearance for employment.

40. Shall upon commencement and termination of employment of an employee by the district, provide the commissioner with the name of and position held by such employee.

§ 5. Section 1709 of the education law is amended by adding two new subdivisions 39 and 40 to read as follows:

39. Shall require, for purposes of a criminal history record check, the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter 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 records search. Every set of fingerprints taken pursuant to this subdivision shall be promptly submitted to the commissioner for purposes of clearance for employment.

40. Shall upon commencement and termination of employment of an employee by the school district, provide the commissioner with the name of and position held by such employee.

§ 6. Section 1804 of the education law is amended by adding two new subdivisions 9 and 10 to read as follows:

9. The board of education shall, for purposes of a criminal history record check, require the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter 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 records search. Every set of fingerprints taken pursuant to this subdivision shall be promptly submitted to the commissioner for purposes of clearance for employment.

10. The board of education shall upon commencement and termination of employment of an employee by the school district, provide the commissioner with the name of and position held by such employee.

§ 7. Subdivision 4 of section 1950 of the education law is amended by adding two new paragraphs 11 and mm to read as follows:

11. Shall require, for purposes of a criminal history record check, the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter 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 records search. Every set of fingerprints taken pursuant to this paragraph shall be promptly submitted to the commissioner for purposes of clearance for employment.

mm. Shall upon commencement and termination of employment of an employee by the board, provide the commissioner with the name of and position held by such employee.

§ 8. Section 2503 of the education law is amended by adding two new subdivisions 18 and 19 to read as follows:

18. Shall require, for purposes of a criminal history record check, the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter 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 records search. Every set of fingerprints taken pursuant to this subdivision shall be promptly submitted to the commissioner for purposes of clearance for employment.

19. Shall upon commencement and termination of employment of an employee by the school district, provide the commissioner with the name of and position held by such employee.

§ 9. Section 2554 of the education law is amended by adding two new subdivisions 25 and 26 to read as follows:

25. Shall require, for purposes of a criminal history record check, except in the city school district of the city of New York, the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chap- ter 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 records search. Every set of fingerprints taken pursuant to this subdivision shall be promptly submitted to the commissioner for purposes of clearance for employment.

26. Shall, except in the city school district of the city of New York, upon commencement and termination of employment of an employee by the city school district, provide the commissioner with the name of and position held by such employee.

§ 10. Subdivision 3 of section 2854 of the education law is amended by adding two new paragraphs (a-2) and (a-3) to read as follows:

(a-2) The board of trustees of a charter school shall require, for purposes of a criminal history record check, the fingerprinting of all prospective employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter 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 records search. Every set of fingerprints taken pursuant to this paragraph shall be promptly submitted to the commissioner for purposes of clearance for employment.

(a-3) The board of trustees of a charter school shall upon commencement and termination of employment of an employee by the charter school district, provide the commissioner with the name of and position held by such employee.

§ 11. The education law is amended by adding a new section 3035 to read as follows:

§ 3035. Duties of commissioner; submission of fingerprints.

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 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.

2. No cause of action against the commissioner, the department or the division of criminal justice services for damages related to the dissemination of criminal history records pursuant to this section shall exist when the commissioner, department or division of criminal justice services has reasonably and in good faith relied upon the accuracy and completeness of criminal history information furnished to it by qualified agencies. The provision of such information by the division of criminal justice services shall be subject to the provisions of subdivision sixteen of section two hundred ninety-six of the executive law. The consideration of such criminal history record by the commissioner shall be subject to article twenty-three-A of the correction law.

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 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.

4. The fee provisions of subdivision two of section three thousand four-b of this chapter shall apply to criminal history records searches conducted pursuant to this section; provided however that, notwithstanding the provisions of any other law: (a) the fees associated with an employee participating in a public assistance employment program, pursuant to title nine-B of article five of the social services law, or receiving employment services through the federal temporary assistance for needy families block grant pursuant to appropriations to the office of temporary disability assistance, shall be paid by the social services district making such employment placement or assignment and the cost of such fees, if not subject to full reimbursement under such federal block grant, shall be deemed to be an employment services administrative expense. In no event shall such a participant described herein be required to personally pay any fee imposed by the division of criminal justice services or the federal bureau of investigation or any other fee for the purpose of conducting a criminal history records search; and (b) any prospective employee may submit a request to a governing body of a school district, on a form prescribed by the commissioner, that the fees imposed for conducting a criminal history records check be waived. Such governing body may grant such a request if such governing body determines that payment of such a fee would impose an unreasonable financial hardship on the applicant or his or her family and, upon such determination, the governing body shall pay such fee on behalf of the prospective employee to the appropriate authority.

5. The commissioner and the division of criminal justice services shall enter into an agreement for the purposes of implementing the provisions of this section.

6. Nothing in this section shall be construed or interpreted to alter or in any way diminish the integrity of collective bargaining agreements negotiated between an employer and any certified or authorized collective bargaining agent for an employee or prospective employee, nor to diminish rights which accrue to such employees or prospective employees pursuant to such agreements.

§ 12. The education law is amended by adding a new article 23-B to read as follows:

ARTICLE 23-B

CHILD ABUSE IN AN EDUCATIONAL SETTING

Section

1125. Definitions.

1126. Duties of employees specifically enumerated in this section upon receipt of an allegation of child abuse in an educational setting.

1127. Confidentiality of records.

1128. Duties of school administrators and superintendents upon receipt of a written report alleging child abuse in an educational setting.

1128-a. Additional duties of superintendents.

1129. Penalties for failure to comply.

1130. Notification by district attorney.

1131. Actions upon criminal conviction of a licensed or certified school employee.

1132. Duties of the commissioner; child abuse in an educational setting.

1133. Unreported resignation against public policy.

§ 1125. Definitions. For the purposes of this article the following terms shall have the following meanings:

1. "Child abuse" shall mean any of the following acts committed in an educational setting by an employee or volunteer against a child: (a) intentionally or recklessly inflicting physical injury, serious physical injury or death, or (b) intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death, or (c) any child sexual abuse as defined in this section, or (d) the commission or attempted commission against a child of the crime of disseminating indecent materials to minors pursuant to article two hundred thirty-five of the penal law.

2. "Child" shall mean a person under the age of twenty-one years enrolled in a school district in this state, other than a school district within a city having a population of one million or more.

3. "Employee" shall mean any person receiving compensation from a school district or employee of a contracted service provider or worker placed within the 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 district, its students or employees, directly or through contract, whereby such services performed by such person involve direct student contact.

4. "Volunteer" shall mean any person, other than an employee, who provides services to a school or school district, which involve direct student contact.

5. "Educational setting" shall mean the building and grounds of a public school district, the vehicles provided by the school district for the transportation of students to and from school buildings, field trips, co-curricular and extra-curricular activities both on and off school district grounds, all co-curricular and extra-curricular activity sites, and any other location where direct contact between an employee or volunteer and a child has allegedly occurred.

6. "Administrator" or "school administrator" shall mean a principal of a public school, charter school or board of cooperative educational services, or other chief school officer.

7. "Law enforcement authorities" shall mean a municipal police department, sheriff's department, the division of state police or any officer thereof. Notwithstanding any other provision of law, law enforcement authorities shall not include any child protective service or any society for the prevention of cruelty to children as such terms are defined in section four hundred twenty-three of the social services law.

8. "Parent" shall mean either or both of a child's parents or other persons legally responsible for the child.

9. "Child sexual abuse" shall mean conduct prohibited by article one hundred thirty or two hundred sixty-three of the penal law.

§ 1126. Duties of employees specifically enumerated in this section upon receipt of an allegation of child abuse in an educational setting.

1. In any case where an oral or written allegation is made to a teacher, school nurse, school guidance counselor, school psychologist, school social worker, school administrator, school board member or other school personnel required to hold a teaching or administrative license or certificate, that a child has been subjected to child abuse by an employee or volunteer in an educational setting, such person shall upon receipt of such allegation:

(a) promptly complete a written report of such allegation including the full name of the child alleged to be abused; the name of the child's parent; the identity of the person making the allegation and their relationship to the alleged child victim; the name of the employee or volunteer against whom the allegation was made; and a listing of the specific allegations of child abuse in an educational setting. Such written report shall be upon a form as prescribed in section eleven hundred thirty-two of this article.

(b) except where the school administrator is the person receiving such oral or written allegation, promptly personally deliver a copy of such written report to the school administrator of the school in which the child abuse allegedly occurred.

2. In any case where it is alleged that a child was abused by an employee or volunteer of a school other than a school within the school district of the child's attendance, the report of such allegations shall be promptly forwarded to the superintendent of schools of the school district of the child's attendance and the school district where the abuse allegedly occurred, whereupon both school superintendents shall comply with sections eleven hundred twenty-eight and eleven hundred twenty-eight-a of this article.

3. Any employee or volunteer who reasonably and in good faith makes a report of allegations of child abuse in an educational setting to a person and in a manner described in this section shall have immunity from civil liability which might otherwise result by reason of such actions.

§ 1127. Confidentiality of records. Reports and other written material submitted pursuant to this article, and photographs taken concerning such reports in the possession of any person authorized to receive such information, pursuant to this article, shall be confidential and shall not be redisclosed except to law enforcement authorities involved in an investigation of child abuse in an educational setting or as expressly authorized by law or pursuant to a court-ordered subpoena. A school administrator or a school superintendent shall exercise reasonable care in preventing such unauthorized disclosure. Willful disclosure of a written record required to be kept confidential pursuant to this section to a person not authorized to receive or review such record is a class A misdemeanor.

§ 1128. Duties of school administrators and superintendents upon receipt of a written report alleging child abuse in an educational setting. Upon receipt of a written report described in paragraph (a) of subdivision one of section eleven hundred twenty-six of this article alleging that a child has been abused in an educational setting, a school administrator or superintendent shall where there is a reasonable suspicion to believe that an act of child abuse has occurred:

1. Where the subject child has made the allegation: (a) promptly notify the parent of such child that an allegation of child abuse in an educational setting has been made regarding such child and promptly provide the parent with a written statement prepared pursuant to regulations of the commissioner setting forth parental rights, responsibilities and procedures under this article; (b) where a school administrator receives a written report, promptly provide a copy of such report to the superintendent; and (c) promptly forward such report to appropriate law enforcement authorities. In no event shall reporting to law enforcement be delayed by reason of an inability to contact the superintendent.

2. Where a parent of the child has made the allegation: (a) promptly provide the parent of such child with a written statement prepared pursuant to regulations of the commissioner setting forth parental rights, responsibilities and procedures under this article; (b) where a school administrator receives a written report, promptly provide a copy of such report to the superintendent; and (c) promptly forward such report to appropriate law enforcement authorities. In no event shall reporting to law enforcement be delayed by reason of an inability to contact the superintendent.

3. Where a person other than the subject child or the parent of a subject child has made the allegation: (a) promptly notify the parent of the subject child that an allegation of child abuse in an educational setting has been made regarding his or her child and promptly provide the parent with a written statement prepared pursuant to regulations of the commissioner setting forth parental rights, responsibilities and procedures under this article; (b) ascertain from the person making such report the source and basis for such allegation; (c) where a school administrator receives a written report, promptly provide a copy of such report to the superintendent; and (d) promptly forward such report to appropriate law enforcement authorities. In no event shall reporting to law enforcement be delayed by reason of an inability to contact the superintendent.

4. Any school administrator or superintendent who reasonably and in good faith makes a report of allegations of child abuse in an educational setting or reasonably and in good faith transmits such a report to a person or agency as required by this article and in a manner described in section eleven hundred twenty-six of this article and this section shall have immunity from civil liability which might otherwise result by reason of such actions.

§ 1128-a. Additional duties of superintendents.

1. Where a superintendent of schools forwards to law enforcement a report as described in paragraph (a) of subdivision one of section eleven hundred twenty-six of this article, he or she shall refer such report to the commissioner where the employee or volunteer alleged to have committed an act of child abuse as defined in this article holds a certification or license issued by the department.

2. A report which is made pursuant to this article and does not, after investigation, result in a criminal conviction shall be expunged from any record which may be kept by a school or school district with respect to the subject of such a report after a period of five years from the date of the making of such report or at such earlier time as such school, or school district, as the case may be, determines.

§ 1129. Penalties for failure to comply.

1. Willful failure of an employee to prepare and submit a written report of an allegation of child abuse as required by this article shall be a class A misdemeanor.

2. (a) Willful failure of a school administrator or superintendent to submit a written report of child abuse to an appropriate law enforcement authority, as required by this article, shall be a class A misdemeanor.

(b) Notwithstanding paragraph (a) of this subdivision, any failure to submit a written report of child abuse to an appropriate law enforcement authority as required by this article, shall be punishable by a civil penalty not to exceed five thousand dollars upon an administrative determination by the commissioner.

§ 1130. Notification by district attorney. Where a criminal investi- gation of an allegation of child abuse by an employee or volunteer is undertaken in response to a report forwarded by a school administrator or superintendent to law enforcement authorities pursuant to section eleven hundred twenty-eight of this article, and where law enforcement authorities have provided such report to the district attorney and have requested assistance, as soon as practicable, it shall be the responsibility of the district attorney to notify the superintendent of schools of the district where the acts of child abuse allegedly occurred and of the school district where the child is attending, if different, of an indictment or the filing of an accusatory instrument against the employee or volunteer against whom an allegation of child abuse in an educational setting was made. The district attorney shall notify the superintendent of schools of the district where the acts of child abuse allegedly occurred and of the school district, if different, where the child is attending of the disposition of the criminal case against such employee or volunteer or the suspension or termination of the criminal investigation of such employee or volunteer.

§ 1131. Actions upon criminal conviction of a licensed or certified school employee.

1. In the event that a licensed or certified school employee against whom an allegation of child abuse in an educational setting has been made, is convicted of any crime involving child abuse in an educational setting, the district attorney shall provide notice thereof to the commissioner, the superintendent of schools of the district where the acts of child abuse occurred and to the school district where the child is attending school, if different.

2. Upon receiving notice of a conviction from a district attorney pursuant to subdivision one of this section, the commissioner shall, without delay, proceed to determine whether the individual possesses good moral character, in accordance with the regulations of the commissioner governing such a determination.

3. Nothing in this article shall be construed as creating any authority to take an adverse action against an employee or volunteer by virtue of a report pursuant to this article which has not been substantiated.

4. An employee or volunteer who has adverse action taken against him or her by virtue of or in connection with any report made pursuant to this article shall be entitled to receive a copy of such report and respond to the allegations of child abuse made therein. Any employee or volunteer shall, in addition, be entitled to seek disclosure of such report pursuant to article six of the public officers law.

§ 1132. Duties of the commissioner; child abuse in an educational setting.

1. The commissioner shall prepare a form for the recording and transmitting of allegations of child abuse in an educational setting. Such form shall include: (i) all definitions set out in section eleven hundred twenty-five of this article; and (ii) adequate space for the inclusion of any other information which the person making or filing the report believes would be helpful in describing or explaining the circumstances surrounding an allegation of child abuse in an educational setting in accordance with the provisions of this article.

2. The commissioner shall promulgate rules and regulations for train- ing necessary for the implementation of this article.

§ 1133. Unreported resignation against public policy.

1. A school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by this article in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

2. Each violation of subdivision one of this section shall constitute a class E felony, and shall also be punishable by a civil penalty not to exceed twenty thousand dollars.

3. Any superintendent of schools who reasonably and in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.

§ 13. Section 3028-b of the education law, as added by chapter 762 of the laws of 1986, is amended to read as follows:

§ 3028-b. Notification of teachers' duty to provide information and immunity from liability. Each school shall annually provide to each teacher and all other school officials a written explanation concerning the reporting of pupil drug abuse [or], child abuse, and child abuse in an educational setting including the immunity provisions of section three thousand twenty-eight-a of this article and section eleven hundred twenty-six of this chapter and sections four hundred thirteen and four hundred nineteen of the social services law. The commissioner, with the assistance and cooperation of the commissioner of [social] children and family services and the commissioner of criminal justice services, shall furnish each school district with the required information. Such information shall be updated by the commissioner at least once each school year.

§ 14. This act shall take effect July 1, 2001; provided, however, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized and directed to be made and completed on or before such effective date.

CHAP. 179 2 that there was good cause for failing to obtain clearance within such period, provided that if clearance is granted the appointment shall continue and the conditional status shall be removed. Prior to commence- ment of such conditional appointment, the prospective employer shall obtain a signed statement for conditional appointment from the prospec- tive 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. § 3. Paragraph b of subdivision 9 of section 1804 of the education law, as amended by chapter 147 of the laws of 2001, is amended to read as follows: b. Upon the recommendation of the superintendent, the board may condi- tionally appoint a prospective employee. A request for conditional clearance shall be forwarded to the commissioner along with the prospec- tive employee's fingerprints, as required by paragraph a of this subdi- vision. Such appointment shall not commence until notification by the commissioner that the prospective employee has been conditionally cleared for employment and shall terminate forty-five days after such notification of conditional clearance or when the prospective employer is notified of a determination by the commissioner to grant or deny clearance, whichever occurs earlier, and may not be extended or renewed unless the commissioner issues a new conditional clearance after finding that there was good cause for failing to obtain clearance within such period, provided that if clearance is granted the appointment shall continue and the conditional status shall be removed. Prior to commence- ment of such conditional appointment, the prospective employer shall obtain a signed statement for conditional appointment from the prospec- tive 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. § 4. Subparagraph b of paragraph ll of subdivision 4 of section 1950 of the education law, as amended by chapter 147 of the laws of 2001, is amended to read as follows: b. Upon the recommendation of the district superintendent, the board may conditionally appoint a prospective employee. A request for condi- tional clearance shall be forwarded to the commissioner along with the prospective employee's fingerprints, as required by paragraph a of this subdivision. Such appointment shall not commence until notification by the commissioner that the prospective employee has been conditionally cleared for employment and shall terminate forty-five days after such notification of conditional clearance or when the prospective employer is notified of a determination by the commissioner to grant or deny clearance, whichever occurs earlier, and may not be extended or renewed unless the commissioner issues a new conditional clearance after finding that there was good cause for failing to obtain clearance within such period, provided that if clearance is granted, the appointment shall continue and the conditional status shall be removed. Prior to commence- ment of such conditional appointment, the prospective employer shall obtain a signed statement for conditional appointment from the prospec- tive 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. § 5. Paragraph b of subdivision 18 of section 2503 of the education law, as amended by chapter 147 of the laws of 2001, is amended to read as follows:

3 CHAP. 179 b. Upon the recommendation of the superintendent, the board may condi- tionally appoint a prospective employee. A request for conditional clearance shall be forwarded to the commissioner along with the prospec- tive employee's fingerprints, as required by paragraph a of this subdi- vision. Such appointment shall not commence until notification by the commissioner that the prospective employee has been conditionally cleared for employment and shall terminate forty-five days after such notification of conditional clearance or when the prospective employer is notified of a determination by the commissioner to grant or deny clearance, whichever occurs earlier, and may not be extended or renewed unless the commissioner issues a new conditional clearance after finding that there was good cause for failing to obtain clearance within such period, provided that if clearance is granted, the appointment shall continue and the conditional status shall be removed. Prior to commence- ment of such conditional appointment, the prospective employer shall obtain a signed statement for conditional appointment from the prospec- tive 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. § 6. Paragraph b of subdivision 25 of section 2554 of the education law, as amended by chapter 91 of the laws of 2002, is amended to read as follows: b. Upon the recommendation of the superintendent, the board may condi- tionally appoint a prospective employee. A request for conditional clearance shall be forwarded to the commissioner along with the prospec- tive employee's fingerprints, as required by paragraph a of this subdi- vision. Such appointment shall not commence until notification by the commissioner that the prospective employee has been conditionally cleared for employment and shall terminate forty-five days after such notification of conditional clearance or when the prospective employer is notified of a determination by the commissioner to grant or deny clearance, whichever occurs earlier, and may not be extended or renewed unless the commissioner issues a new conditional clearance after finding that there was good cause for failing to obtain clearance within such period, provided that if clearance is granted, the appointment shall continue and the conditional status shall be removed. Prior to commence- ment of such conditional appointment, the prospective employer shall obtain a signed statement for conditional appointment from the prospec- tive 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. § 7. Subparagraph (ii) of paragraph (a-2) of subdivision 3 of section 2854 of the education law, as amended by chapter 147 of the laws of 2001, is amended to read as follows: (ii) Upon the recommendation of the chief executive officer of the charter school, the board of trustees of a charter school may condi- tionally appoint a prospective employee. A request for conditional clearance shall be forwarded to the commissioner along with the prospec- tive employee's fingerprints, as required by subparagraph (i) of this paragraph. Such appointment shall not commence until notification by the commissioner that the prospective employee has been conditionally cleared for employment and shall terminate forty-five days after such notification of conditional clearance or when the prospective employer is notified of a determination by the commissioner to grant or deny clearance, whichever occurs earlier, and may not be extended or renewed unless the commissioner issues a new conditional clearance after finding

CHAP. 179 4 that there was good cause for failing to obtain clearance within such period, provided that if clearance is granted, the appointment shall continue and the conditional status shall be removed. Prior to commence- ment of such conditional appointment, the prospective employer shall obtain a signed statement for conditional appointment from the prospec- tive 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. § 8. Section 12 of chapter 147 of the laws of 2001, amending the education law relating to conditional appointment of school district, charter school or BOCES employees, as amended by chapter 90 of the laws of 2007, is amended to read as follows: § 12. This act shall take effect on the same date as chapter 180 of the laws of 2000 takes effect, and shall expire July 1, [2009] 2010 when upon such date the provisions of this act shall be deemed repealed. § 9. All conditional clearances issued by the commissioner of educa- tion pursuant to sections 1604, 1709, 1804, 1950, 2503, 2554 or 2854 of the education law prior to the effective date of this act shall expire 45 days after such effective date, and upon such expiration the condi- tional appointment of the prospective employee shall terminate and may not be extended or renewed unless the commissioner issues a new condi- tional clearance after finding that there was good cause for failing to obtain clearance within such 45 day period. § 10. This act shall take effect July 1, 2009; provided that in the event this act shall become a law after such date, this act shall take effect immediately and shall be deemed to have been in full force and effect on and after July 1, 2009; provided further that the amendments made to paragraph b of subdivision 39 of section 1604 of the education law by section one of this act, the amendments made to paragraph b of subdivision 39 of section 1709 of the education law by section two of this act, the amendments made to paragraph b of subdivision 9 of section 1804 of the education law by section three of this act, the amendments made to subparagraph b of paragraph ll of subdivision 4 of section 1950 of the education law by section four of this act, the amendments made to paragraph b of subdivision 18 of section 2503 of the education law by section five of this act, the amendments made to paragraph b of subdivi- sion 25 of section 2554 of the education law by section six of this act and the amendments made to subparagraph (ii) of paragraph (a-2) of subdivision 3 of section 2854 of the education law by section seven of this act shall not affect the expiration and repeal of such provisions and shall expire and be repealed therewith. 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. MALCOLM A. SMITH SHELDON SILVER Temporary President of the Senate Speaker of the Assembly
Last Updated: January 15, 2013
January 15, 2013