BILL ANALYSIS AB 2685 Page 1 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 AB 2685 Page 2 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 AB 2685 Page 3 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 AB 2685 Page 4 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 AB 2685 Page 5 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 AB 2685 Page 6 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. AB 2685 Page 7 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 AB 2685 Page 8 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 AB 2685 Page 9 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