GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2017

H 2

HOUSE BILL 117

Committee Substitute Favorable 4/4/17

 

Short Title: Protect Students in Schools.

(Public)

Sponsors:

 

Referred to:

 

February 16, 2017

A BILL TO BE ENTITLED

AN ACT to require criminal background checks for public school personnel employment; to provide for written notice prior to suspending without pay a teacher who is incarcerated or in custody; and to require notification to the state board of education relevant criminal history related to an educator's resignation.

The General Assembly of North Carolina enacts:

 

part I. Criminal background checks for local board of education employees

SECTION 1. G.S. 115C‑238.73 reads as rewritten:

" 115C‑238.73. Criminal history record checks.

(a) As used in this section:

(1a) Consumer reporting agency. An entity which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers, including criminal history checks, for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports, and which is regulated as provided in 15 U.S.C. 1681, et seq. A criminal history check by a consumer reporting agency provided for purposes of this section must include all of the following:

a. A search of the state criminal registry or repository in which the applicant resides.

b. A multistate/multijurisdiction database search which includes a follow‑up search at the originating source for any information returned by the database search and which confirms final disposition information of the same.

c. A search of records obtained from county, state, and federal criminal repositories where the individual resides and has previously resided.

d. A search of the National Sex Offender Registry established as provided in 42 U.S.C. 16919.

(b) Each local board of education shall adopt a policy on whether and under what circumstances an that requires an applicant for a school personnel position shall be required to be checked for a criminal history as provided in subsection (c) of this section before the applicant is offered an unconditional job. Each local board of education shall apply its policy uniformly in requiring applicants for school personnel positions to be checked for a criminal history. A local board of education that requires a criminal history check for an applicant may may employ an applicant conditionally while the board is checking the person's criminal history and making a decision based on the results of the check.

A local board of education shall not require an applicant to pay for the criminal history check authorized under this subsection.

(c) A local board of education by policy shall uniformly require applicants to be checked for a criminal history either by a consumer reporting agency, the Department of Public Safety, or both. The Department of Public Safety shall provide to the local board of education the criminal history from the State and National Repositories of Criminal Histories of any applicant for a school personnel position in the local school administrative unit for which a local board of education requires a criminal history check. The If the local board of education requires a criminal history check by the Department of Public Safety, the local board of education shall require the person to be checked by the Department of Public Safety to (i) be fingerprinted and to provide any additional information required by the Department of Public Safety to a person designated by the local board, or to the local sheriff or the municipal police, whichever is more convenient for the person, and (ii) sign a form consenting to the check of the criminal record and to the use of fingerprints and other identifying information required by the repositories. The local board of education shall consider refusal to consent when making employment decisions and decisions with regard to independent contractors.not employ or contract with an individual who refuses to consent to a criminal history check.

The local board of education shall not require an applicant to pay for being fingerprinted.

(i) The local board of education may adopt a policy providing for periodic checks of criminal history of employees either by a consumer reporting agency, the Department of Public Safety, or both. Local boards of education shall not require employees to pay for the criminal history check authorized under this subsection. A local board of education shall indicate, upon inquiry by any other local board of education, charter school, or regional school in the State as to the reason for an employee's resignation or dismissal, if an employee's criminal history was relevant to the employee's resignation or dismissal.

."

 

part II. criminal background checks for other public school employees

SECTION 2.(a) G.S. 115C‑218.90(b) is repealed.

SECTION 2.(b) Article 14A of Chapter 115C of the General Statutes is amended by adding a new section to read:

" 115C‑218.92. School personnel criminal history checks.

(a) As used in this section:

(1) "Criminal history" means a county, state, or federal criminal history of conviction of a crime, whether a misdemeanor or a felony, that indicates the employee (i) poses a threat to the physical safety of students or personnel or (ii) has demonstrated that he or she does not have the integrity or honesty to fulfill his or her duties as public school personnel. Such crimes include the following North Carolina crimes contained in any of the following Articles of Chapter 14 of the General Statutes: Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Kindred Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretense and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; and Article 60, Computer‑Related Crime. Such crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol‑related offenses such as sale to underage persons in violation of G.S. 18B‑302 or driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5. In addition to the North Carolina crimes listed in this subdivision, such crimes also include similar crimes under federal law or under the laws of other states.

(2) Consumer reporting agency. An entity which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers, including criminal history checks, for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports, and which is regulated as provided in 15 U.S.C. 1681, et seq. A criminal history check by a consumer reporting agency provided for purposes of this section must include all of the following:

a. A search of the state criminal registry or repository in which the applicant resides.

b. A multistate/multijurisdictional database search which includes a follow‑up search at the originating source for any information returned by the database search and which confirms final disposition information of the same.

c. A search of records obtained from county, state, and federal criminal repositories where the individual resides and has previously resided.

d. A search of the National Sex Offender Registry established as provided in 42 U.S.C. 16919.

(3) "School personnel" means any of the following:

a. Member of the board of directors.

b. Employee of the charter school.

c. Independent contractor or employee of an independent contractor of the charter school if the independent contractor carries out duties customarily performed by school personnel, whether paid with federal, State, local, or other funds, who has significant access to students or who has responsibility for the fiscal management of the charter school.

(b) The charter school board of directors shall adopt a policy that requires an applicant for a school personnel position to be checked for a criminal history as provided in subsection (c) of this section. The board of directors shall apply its policy uniformly in requiring applicants for school personnel positions to be checked for a criminal history. The board of directors may grant conditional approval of an application while the board of directors is checking a person's criminal history and making a decision based on the results of the check. The board of directors shall not require school personnel to pay for the criminal history record check authorized under this section.

(c) The charter school board of directors shall uniformly require applicants to be checked for a criminal history either by a consumer reporting agency, the Department of Public Safety, or both. If the local board of education requires a criminal history check by the Department of Public Safety, the board of directors shall require the person to be checked by the Department of Public Safety (i) to be fingerprinted and to provide any additional information required by the Department of Public Safety to a person designated by the board of directors or to the local sheriff or the municipal police, whichever is more convenient for the person, and (ii) to sign a form consenting to the check of the criminal record and to the use of fingerprints and other identifying information required by the repositories. The board of directors shall not employ or contract with an individual who refuses to consent to a criminal history check. The fingerprints of the individual shall be forwarded to the State Bureau of Investigation for a search of the State criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The Department of Public Safety shall provide to the board of directors the criminal history from the State and National Repositories of Criminal Histories of any school personnel for which the board of directors requires a criminal history record check.

The board of directors shall not require school personnel to pay for the fingerprints authorized under this section.

(d) The charter school board of directors shall review the criminal history it receives on an individual. The board of directors shall determine whether the results of the review indicate that the individual (i) poses a threat to the physical safety of students or personnel or (ii) has demonstrated that he or she does not have the integrity or honesty to fulfill his or her duties as school personnel and shall use the information when making employment decisions and decisions with regard to independent contractors. The board of directors shall make written findings with regard to how it used the information when making employment decisions and decisions with regard to independent contractors. The board of directors may delegate any of the duties in this subsection to the principal.

(e) The charter school board of directors, or the principal, or equivalent position, if designated by the board of directors, shall provide to the State Board of Education the criminal history it receives on a person who is certificated, certified, or licensed by the State Board of Education. The State Board of Education shall review the criminal history and determine whether the person's certificate or license should be revoked in accordance with State laws and rules regarding revocation.

(f) All the information received by the charter school board of directors through the checking of the criminal history or by the State Board of Education in accordance with this section is privileged information and is not a public record but is for the exclusive use of the board of directors or the State Board of Education. The board of directors or the State Board of Education may destroy the information after it is used for the purposes authorized by this section after one calendar year.

(g) There shall be no liability for negligence on the part of the charter school board of directors, or its employees, or the State Board of Education, or its employees, arising from any act taken or omission by any of them in carrying out the provisions of this section. The immunity established by this subsection shall not extend to gross negligence, wanton conduct, or intentional wrongdoing that would otherwise be actionable. The immunity established by this subsection shall be deemed to have been waived to the extent of indemnification by insurance, indemnification under Articles 31A and 31B of Chapter 143 of the General Statutes, and, to the extent sovereign immunity is waived under the Tort Claims Act, as set forth in Article 31 of Chapter 143 of the General Statutes.

(h) Any applicant for employment who willfully furnishes, supplies, or otherwise gives false information on an employment application that is the basis for a criminal history record check under this section shall be guilty of a Class A1 misdemeanor.

(i) The charter school board of directors may adopt a policy providing for uniform periodic checks of criminal history of employees either by a consumer reporting agency, the Department of Public Safety, or both. Boards of directors shall not require employees to pay for the criminal history check authorized under this subsection.

(j) A charter school board of directors shall indicate, upon inquiry by any other charter school, local board of education, or regional school in the State as to the reason for an employee's resignation or dismissal, if an employee's criminal history was relevant to the employee's resignation or dismissal. If a teacher's criminal history is relevant to a teacher's resignation, the board of directors shall report to the State Board of Education the reason for an employee's resignation."

SECTION 2.(c) G.S. 115C‑238.73 reads as rewritten:

" 115C‑238.73. Criminal history record checks.

(a) As used in this section:

(1a) Consumer reporting agency. An entity which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers, including criminal history checks, for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports, and which is regulated as provided in 15 U.S.C. 1681, et seq. A criminal history check by a consumer reporting agency provided for purposes of this section must include all of the following:

a. A search of the state criminal registry or repository in which the applicant resides.

b. A multistate/multijurisdictional database search which includes a follow‑up search at the originating source for any information returned by the database search and which confirms final disposition information of the same.

c. A search of records obtained from county, state, and federal criminal repositories where the individual resides and has previously resided.

d. A search of the National Sex Offender Registry established as provided in 42 U.S.C. 16919.

(b) The board of directors shall adopt a policy on whether and under what circumstances school personnel shall be required to be that requires an applicant for a school personnel position to be checked for a criminal history. history as provided in subsection (c) of this section. The board of directors shall apply its policy uniformly in requiring applicants for school personnel positions to be checked for a criminal history. The board of directors may grant conditional approval of an application while the board of directors is checking a person's criminal history and making a decision based on the results of the check.

The board of directors shall not require school personnel to pay for the criminal history record check authorized under this section.

(c) The board of directors shall uniformly require applicants to be checked for a criminal history either by a consumer reporting agency, the Department of Public Safety, or both. If the local board of education requires a criminal history check by the Department of Public Safety, the board of directors shall require the person to be checked by the Department of Public Safety (i) to be fingerprinted and to provide any additional information required by the Department of Public Safety to a person designated by the board of directors or to the local sheriff or the municipal police, whichever is more convenient for the person, and (ii) to sign a form consenting to the check of the criminal record and to the use of fingerprints and other identifying information required by the repositories. The board of directors shall consider refusal to consent when making employment decisions and decisions with regard to independent contractors.not employ or contract with an individual who refuses to consent to a criminal history check. The fingerprints of the individual shall be forwarded to the State Bureau of Investigation for a search of the State criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The Department of Public Safety shall provide to the board of directors the criminal history from the State and National Repositories of Criminal Histories of any school personnel for which the board of directors requires a criminal history record check.

The board of directors shall not require school personnel to pay for the fingerprints authorized under this section.

(i) The board of directors may adopt a policy providing for uniform periodic checks of criminal history of employees either by a consumer reporting agency, the Department of Public Safety, or both. Boards of directors shall not require employees to pay for the criminal history check authorized under this subsection.

(j) A board of directors shall indicate, upon inquiry by any other local board of education, charter school, or regional school in the State as to the reason for an employee's resignation or dismissal, if an employee's criminal history was relevant to the employee's resignation or dismissal. If a teacher's criminal history is relevant to a teacher's resignation, the board of directors shall report to the State Board of Education the reason for an employee's resignation."

 

part iii. Suspension without pay for teachers who are incarcerated or in custody

SECTION 3.(a) G.S. 115C‑325(f)(1) reads as rewritten:

"(f) (1) Suspension without Pay. If a superintendent believes that cause exists for dismissing a career employee for any reason specified in G.S. 115C‑325(e)(1) and that immediate suspension of the career employee is necessary, the superintendent may suspend the career employee without pay. Before suspending a career employee without pay, the superintendent shall meet with the career employee and give him written notice of the charges against him, an explanation of the bases for the charges, and an opportunity to respond. However, if the teacher is incarcerated or is in the custody of a local, State, private, or federal correctional facility, the superintendent shall not be required to meet with the teacher before suspending that teacher without pay but may instead provide written notice of the charges against the teacher, provide a written explanation of the basis for the charges, and provide an opportunity for the teacher to respond in writing. Within five days after a suspension under this paragraph, the superintendent shall initiate a dismissal, demotion, or disciplinary suspension without pay as provided in this section. If it is finally determined that no grounds for dismissal, demotion, or disciplinary suspension without pay exist, the career employee shall be reinstated immediately, shall be paid for the period of suspension, and all records of the suspension shall be removed from the career employee's personnel file."

SECTION 3.(b) G.S. 115C‑325.5(a) reads as rewritten:

"(a) Immediate Suspension Without Pay. If a superintendent believes that cause exists for dismissing a teacher for any reason specified in G.S. 115C‑325.4 and that immediate suspension of the teacher is necessary, the superintendent may suspend the teacher without pay. Before suspending a teacher without pay, the superintendent shall meet with the teacher and give him or her written notice of the charges against the teacher, an explanation of the basis for the charges, and an opportunity to respond. However, if the teacher is incarcerated or is in the custody of a local, State, private, or federal correctional facility, the superintendent shall not be required to meet with the teacher before suspending that teacher without pay but may instead provide written notice of the charges against the teacher, provide a written explanation of the basis for the charges, and provide an opportunity for the teacher to respond in writing. Within five days after a suspension under this subsection, the superintendent shall initiate a dismissal, demotion, or disciplinary suspension without pay as provided in this section. If it is finally determined that no grounds for dismissal, demotion, or disciplinary suspension without pay exist, the teacher shall be reinstated immediately, shall be paid for the period of suspension, and all records of the suspension shall be removed from the teacher's personnel file."

 

Part IV. notification to state board of education when TEACHER resigns for reasons related to criminal history

SECTION 4.(a) G.S. 115C‑325(o)(2) reads as rewritten:

"(2) A teacher, career or probationary, who is not recommended for dismissal should not resign without the consent of the superintendent unless he or she has given at least 30 days' notice. If a teacher who is not recommended for dismissal does resign without giving at least 30 days' notice, the board may request that the State Board of Education revoke the teacher's license for the remainder of that school year. A copy of the request shall be placed in the teacher's personnel file. If a teacher's criminal history is relevant to the teacher's resignation, regardless of whether the teacher has given at least 30 days' notice, the board shall report to the State Board of Education the reason for an employee's resignation."

SECTION 4.(b) G.S. 115C‑325.9(b) reads as rewritten:

"(b) Thirty Days' Notice Resignation Requirement. A teacher who is not recommended for dismissal should not resign during the term of the contract without the consent of the superintendent unless he or she has given at least 30 days' notice. If a teacher who is not recommended for dismissal does resign during the term of the contract without giving at least 30 days' notice, the board may request that the State Board of Education revoke the teacher's license for the remainder of that school year. A copy of the request shall be placed in the teacher's personnel file. If a teacher's criminal history is relevant to the teacher's resignation, regardless of whether the teacher has given at least 30 days' notice, the board shall report to the State Board of Education the reason for an employee's resignation."

 

part v. effective date

SECTION 5. This act is effective when it becomes law and applies to applications for employment that are received on or after January 1, 2018.