BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   April 7, 2010

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                 AB 2685 (De La Torre) - As Amended:  March 25, 2010
           
          SUBJECT  :  Schools: criminal background of employees and board  
          members.

           SUMMARY  :  An urgency measure that requires members of a county  
          board of education, school district board of education, a  
          charter school governing body or a charter school administrator  
          to be fingerprinted prior to taking office; requires the  
          Commission on Teacher Credentialing (CTC) to maintain a database  
          of individuals that work for private schools that have been  
          arrested or convicted of certain sex offenses; and, requires the  
          CTC to either deny or revoke a credential for specified  
          offenses.  Specifically,  this bill :  

          1)Requires a person elected, appointed, or otherwise selected to  
            serve on a county board of education, a school district board,  
            or a charter school governing body to successfully complete a  
            criminal background check in accordance with Section 45125  
            prior to taking office.

          2)Requires a private school to notify the CTC whenever an  
            employee who comes in contact with students is charged with  
            the commission of any sex offense as defined in Section 44010,  
            no later than 10 days after being informed that the employee  
            has been charged.

          3)Requires the CTC, with assistance from the Department of  
            Justice, to establish and maintain a database of all persons  
            who do not possess a valid credential issued by the CTC, who  
            are or were employed by a private school in a position  
            requiring contact with students, and who has been arrested or  
            convinced as a sex offense, as defined in Section 44010 and,  
            specifies the database shall include, among other information,  
            the name and address of the private school at which the person  
            is or was employed. 

          4)Requires the CTC to deny and revoke a credential to an  
            applicant who has been convicted of a felony offense defined  
            in Section 273a, 273ab, or 278 of the Penal Code, even if the  
            person is eligible for, and has obtained, a certificate of  








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            rehabilitation and pardon.

          5)Requires a person serving as a charter school administrator to  
            successfully complete a background check in accordance with  
            Section 45125; and, specifies that a person who is serving as  
            an administrator or member of a charter school governing body  
            at the time this bill takes effect shall complete the  
            background check within 90 days. 

           EXISTING LAW  : 

          1)Requires school district governing boards to require  
            individuals employed by the district, that are not  
            certificated, to be fingerprinted.  (Education code 45125)

          2)Prohibits a school district from employing an individual that  
            has been convicted of certain sex, drug and violent offences,  
            as specified.  (Education code 44836)

          3)Establishes mandatory minimum sentences for individuals  
            convicted of willfully causing or permitting any child to  
            suffer, or inflicting thereon unjustifiable physical pain or  
            mental suffering, or having the care or custody of any child,  
            willfully causing or permitting the person or health of that  
            child to be injured, or willfully causing or permitting that  
            child to be placed in a situation where his or her person or  
            health is endangered.  (Penal code 273a)

          4)Establishes a mandatory minimum sentence for any person who,  
            having the care or custody of a child who is under eight years  
            of age, assaults the child by means of force that to a  
            reasonable person would be likely to produce great bodily  
            injury, resulting in the child's death.  (Penal code 273ab)

          5)Establishes jail time and fines for every person, not having a  
            right to custody, who maliciously takes, entices away, keeps,  
            withholds, or conceals any child with the intent to detain or  
            conceal that child from a lawful custodian.  (Penal code 278)

          6)Defines sex offenses which prohibit an individual from being  
            employed by a school district. (Education code 44010)

          7)Requires private school elementary or high school level to  
            require each applicant for employment in a position requiring  
            contact with minor pupils who does not possess a valid  








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            credential issued by the CTC or is not currently licensed by  
            another state agency that requires a criminal record summary,  
            to submit two sets of fingerprints prepared for submittal by  
            the employer to the Department of Justice for the purpose of  
            obtaining criminal record summary information from the  
            Department of Justice and the Federal Bureau of Investigation.  
            (Education code 44237)

          8)Requires the CTC to send each private school a monthly list of  
            all teachers who have had their state teaching credential  
            revoked or suspended.  (Education code 44237)

          9)Requires private schools to file an affidavit with the  
            Superintendent of Public Instruction. (Education code 33191)

          10)Requires, whenever any certificated employee of a school  
            district is charged with a mandatory leave of absence offense,  
            the governing board of the school district shall immediately  
            place the employee on compulsory leave of absence; and,  
            requires, no later than 10 days after receipt of the  
            complaint, information, or indictment, the school district  
            shall forward a copy to the Commission on Teacher  
            Credentialing.  (Education code 44940)

           FISCAL EFFECT  :  Unknown 

           COMMENTS  :   This bill requires school board members, county  
          office of education members, and charter school governing body  
          members and staff to be fingerprinted.  The bill requires the  
          CTC to establish a database of private school teachers who have  
          been arrested or convicted of a sex offense that would prohibit  
          employment in a school district; and, requires a private school  
          to notify the CTC whenever an employee who comes in contact with  
          students is informed that the employee has been arrested or  
          charged with those same sex offenses.  The bill also requires  
          the CTC to deny an application or revoke a credential of anyone  
          convicted of certain child endangerment and child abduction  
          offenses, regardless of their eligibility for a certificate of  
          rehabilitation.

           Fingerprinting & Background Checks  .  Several sections of the  
          Education code currently deal with criminal offenses that  
          prohibit individuals from being employed by school districts.   
          Section 45122.1 of the Education code lists specific felonies  
          and misdemeanors and violent/serious felonies that prohibit  








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          classified staff from being employed by school districts.   
          Section 44010 of the Education code lists specified sex offenses  
          and Section 44011 lists controlled substance offenses.  Both  
          Section 44010 and 44011 are included in Section 44836, which  
          prohibits anyone convicted of these offenses from being employed  
          by a school district.  Individuals who are convicted of these  
          offenses, except those that require the applicant to register as  
          a sex offender, become eligible for school district employment  
          if they obtain an expungement pursuant to Section 1203.4 of the  
          Penal Code.  

          This bill specifies that board members and charter  
          administrators shall be fingerprinted.  The bill does not  
          specify what happens if those individuals are found to be  
          convicted of certain offenses.  The committee should consider  
          whether board members and charter administrators who have been  
          convicted of the sex, drug and violent offenses in Section  
          44010, 44011 and 45122.1 should be allowed to serve in those  
          roles.  

           Charter Schools  .  Existing law prohibits individuals from being  
          employed by school districts if they are charged with certain  
          sex, drug and violent crimes.  As drafted, the bill would not  
          extend these same protections to charter schools employees,  
          except charter school administrators.  Staff recommends the bill  
          be amended to specify that charter schools must also comply with  
          existing fingerprinting and employment prohibition laws for all  
          employees, volunteers and after school activity  
          supervisors/coaches. 

           Fingerprinting for Board Members  .  This bill requires school  
          district board members, county office of education board members  
          and charter school governing bodies to be fingerprinted prior to  
          taking office.  It is unclear whether a person running for  
          election to one of these boards would need to complete the  
          fingerprint check, or if the fingerprint would not be completed  
          until after they are elected.  If the fingerprint does not occur  
          until after they are elected, what would happen?  Currently  
          there isn't a mechanism to unseat an elected school board member  
          for failure to successfully complete a background check.  

          According to the California Charter Schools Association, who  
          opposes the bill, "CCSA questions the need for charter school  
          board members to be cleared in a background check.  The  
          objective of a background check is to protect the students.  In  








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          most cases, a board member does not have contact with students,  
          so it unclear who this requirement would be protecting.  If a  
          board member is otherwise engaged on the campus, where he or she  
          may have contact with the students, then there are other  
          existing and pending criminal background check schemes that  
          could be used.  The law should not duplicate background checks  
          that will occur anyway nor should it impose a background check  
          on a person whose sole engagement with the school is on the  
          board of directors."

          The author's intent is to have school board members pass the  
          same criminal background check as all other district employees,  
          however, it is unclear if board members have contact with  
          students in their capacity as a board member.  In light of the  
          fingerprint timeline issues related to the election process,  
          staff recommends the bill be amended to remove this requirement  
          from the bill until these concerns are fully addressed.

           Private School Information  .  Private schools must file an  
          affidavit with the California Department of Education (CDE),  
          which is used to compile a list of private schools statewide  
          that is listed on the CDE website.  The affidavit does not list  
          the names of private school teachers, but it does ask schools to  
          provide the total number and type of individuals employed at the  
          private school.  The author's intent is to link this database of  
          private schools across the state with the private school teacher  
          database created by the CTC.  It is unclear why linking these  
          two lists would be necessary.  

           Private School Database & Reporting  .  The bill requires the CTC  
          to maintain a database of teachers employed at private schools  
          that have been arrested or convicted of sex offenses that  
          prohibit employment at a public school district.  Is it  
          appropriate to list teacher arrests in this database, when a  
          conviction does not occur?  This would create a higher standard  
          for private school employees than existing requirements for  
          public school teachers.  How will such a database be used to  
          protect students?  Because private school employees are not  
          covered by the confidentiality provisions found in Education  
          code 44230 for credentialed employees the treatment would be  
          different for private and public schools with respect to  
          information that could be disclosed to the public.  Should  
          access to the database be limited to private school  
          administrators, or would this list be accessible to the public?   
          Will private school teachers have any type of recourse if the  








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          information in this database is incorrect?  It is unclear if  
          private school teachers will have any sort of due process to  
          remove their name from this database.  Existing law already  
          requires private school employers to fingerprint employees that  
          have contact with students and requires the CTC to send regular  
          updates to private schools notifying them of recent credentialed  
          teachers who have had their credential revoked or suspended.   
          The committee should consider how a database will be used and  
          whether it is needed to further protect private school students,  
          and whether such a database is best stored by the CTC or some  
          other agency.

          If such a database is created and maintained, the costs  
          associated with the database will be born on all public school  
          credential holders.  Because private school teachers are not  
          credentialed, they do not pay credentialing fees that will  
          financially support this CTC database.  Therefore, the costs  
          will be passed along to credentialed teachers through their  
          credentialing fees.  The committee should consider if this is an  
          appropriate funding structure.

          The bill also requires private schools to notify the CTC when  
          they have knowledge that one of their employees has been charged  
          with specified sex offenses.  It is unclear how private school  
          employers would be privy to that type of information.  The  
          California Association of Private School Organization, who  
          opposes the bill unless amended, argues that district attorneys,  
          not private schools, should be reporting this information to the  
          CTC since that information is already in the hands of the law  
          enforcement agency.  The committee should consider, however, how  
          the district attorney will know that the individual is employed  
          at a private school, unless the individual volunteers such  
          information.

          One could argue that the list proposed by this bill is somewhat  
          similar to the Megan's law list of registered sex offenders that  
          is published on the internet.  The committee should consider  
          whether the CTC is the appropriate place for this list to be  
          housed and maintained.  The committee should also consider  
          whether appropriate information flow can occur to facilitate the  
          creation of this list at the CTC.  Staff recommends the creation  
          of the database and the private school reporting sections of  
          this bill be deleted until these concerns regarding privacy,  
          funding, due process and information access are fully addressed.









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           Mandatory Offenses and Discretionary Review  .  Several sections  
          of the Education code currently deal with criminal offenses  
          requiring revocation of teaching credentials.  Section 44424 of  
          the Education code lists specific felonies and misdemeanors and  
          violent/serious felonies.  Section 44010 of the Education code  
          lists specified sex offenses and Section 44011 lists controlled  
          substance offenses.  Under current law a conviction of any of  
          the felonies listed in Section 44424 results in a mandatory  
          revocation.  In some cases such as theft crimes, the Legislature  
          has specifically limited the revocation to felony thefts.  In  
          others, such as child endangerment, the Legislature has included  
          both misdemeanors and felonies. 

          Offenses that do not require mandatory revocation of teaching  
          credentials receive a discretionary review by the CTC and action  
          is taken by the Committee of Credentials (COC) based on the  
          facts and circumstances of the case.  According to the CTC, the  
          discretionary review process begins with a review by the CTC  
          staff, followed by a review of the COC.  After the first review  
          by the COC, the committee may decide to end the review process  
          or move the case forward for a formal review by the committee.   
          At the formal review by the committee, the credential holder may  
          appear and present their case.  After the formal review, the  
          committee may issue a decision for disciplinary action for the  
          credential holder and the person has 30 days to accept the  
          discipline or request an Administrative hearing by an  
          independent Administrative Law Judge.  After the Judge makes a  
          decision, the Committee of Credentials can either accept that  
          decision or reject the decision and impose the committee's  
          disciplinary action.

          Child Endangerment, Assault & Abduction  .  This bill requires the  
          CTC to deny a credential application or revoke a credential for  
          individuals convicted of certain child endangerment, assault and  
          abduction offenses, regardless of whether the individual has  
          obtained a certificate of rehabilitation and pardon.  Under  
          existing law, if an individual is convicted of a felony offense  
          of Section 273a, 273ab, or 278 of the Penal Code, it is a  
          mandatory conviction, and the CTC is required to either deny a  
          credential applicant or revoke an individual's credential.   
          Under current law, if the individual successfully completes  
          probation, they are eligible to have their conviction reduced to  
          a misdemeanor.  If an individual is convicted of a misdemeanor  
          under one of these sections, or has their felony conviction  
          reduced to a misdemeanor, the individual is eligible for a  








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          discretionary review by the COC.  This bill would instead  
          require that a person convicted of one of the felony offenses  
          listed above to be denied a credential or have their credential  
          revoked, without the possibility of ever reinstating their  
          credential.  The only other situation where an individual is  
          permanently barred from holding a teaching credential is if they  
          are required to register as a sex offender.  Therefore, this  
          bill would essentially require the CTC to treat felony child  
          endangerment, assault and child abduction offenses the same as  
          they currently treat registered sex offenders.  The committee  
          should consider whether it is appropriate to permanently ban  
          individuals convicted of these offenses from holding a teaching  
          credential, when individuals who are convicted of more serious  
          offenses like murder and who attain a certificate of  
          rehabilitation and pardon, will get a discretionary review.  For  
          example, if an individual is convicted of one of these felonies  
          and is later cleared by DNA or any other type of evidence, under  
          this bill they would be banned from seeking a discretionary  
          review despite all charges being dropped against them.  The  
          committee should consider whether it is appropriate to create  
          this type of inconsistency in the law with regard to different  
          types of serious offenses.  Staff recommends the bill be amended  
          to delete the lifetime ban on individuals convicted of these  
          offenses from holding a teaching credential to avoid creating  
          this type of inconsistency in the law.

           Committee Amendments :  The recent amendments contained errors  
          that do not match the author's intent.  The author's intent was  
          to require all charter school employees to be fingerprinted and  
          to prohibit individuals from working, coaching or volunteering  
          in charter schools if they would be prohibited from working at a  
          school district.  Staff recommends the bill be amended to  
          correct this drafting error to create consistency between  
          charter schools and school districts.  The author's intent was  
          to remove the urgency clause, and staff recommends the bill be  
          amended to correct this drafting error.  Staff recommends  
          amending the bill to remove the fingerprinting requirement for  
          school district boards, county office boards and charter school  
          boards until the election timeline concerns can be addressed.   
          Staff recommends amending the bill to remove the private school  
          teacher database and private school reporting requirements from  
          the bill until the privacy, funding, due process and access to  
          information concerns can be addressed.  Staff recommends the  
          bill be amended to remove the lifetime ban on individuals with  
          felony convictions for child endangerment, assault and  








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          abductions to eliminate the inconsistencies created by these  
          provisions.

           Related legislation  : AB 2034 (Knight) from 2010, prohibits  
          school districts, county offices of education and charter  
          schools that elect to fingerprint volunteers from allowing  
          individuals with specific sex, controlled substance or violent  
          offenses to volunteer in schools; and, requires charter schools  
          to comply with fingerprinting laws for employees and  
          supervisors/coaches.  This bill is pending hearing in the  
          Assembly Appropriations Committee.

          AB 1698 (Conway) from 2010, pending in the Assembly Rules  
          Committee, is a spot bill related to the fingerprinting of  
          student activity coaches and volunteers. 

          AB 1025 (Conway) Chapter 379, Statutes of 2009, authorizes the  
          Commission on Teacher Credentialing to issue an Activity  
          Supervisor Clearance Certificate to allow non-credentialed  
          individuals, in a paid or volunteer capacity, to supervise,  
          direct, or coach a pupil activity program.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California State Sherriffs' Association
          Crime Victims United of California
          Peace Officers Research Association of California
          The Child Abuse Prevention Center

           Opposition 
           
          California Association of Private School Organizations
          California Charter Schools Association
          California Teachers Association
           
          Analysis Prepared by  :    Chelsea Kelley / ED. / (916) 319-2087