BILL ANALYSIS Ó AB 13 Page 1 Date of Hearing: May 4, 2011 ASSEMBLY COMMITTEE ON EDUCATION Julia Brownley, Chair AB 13 (Knight) - As Amended: March 24, 2011 SUBJECT : Public school volunteers. SUMMARY : Prohibits school districts, county offices of education (COEs), or charter schools that elect to fingerprint volunteers from allowing individuals who have been convicted of specific sex, felony drug or violent offenses to volunteer in schools, and requires charter schools to comply with existing fingerprinting laws. Specifically, this bill : 1)Specifies that any person who would be prohibited from employment in a school district due to a conviction of a sex, felony drug or violent offense shall also be prohibited from serving as a nonteaching volunteer aide (NTVA) at a district, COE, or a charter school. 2)Requires charter schools to comply with existing employment prohibitions due to convictions of sex, drug or violent offenses; and, requires charter schools to comply with provisions regarding fingerprinting for pupil activity supervisors. EXISTING LAW : 1)Specifies, notwithstanding any other law, that any person, except a person required to register as a sex offender, may be permitted by the governing board of any school district to perform the duties related to supervising pupils during breakfast, lunch or other nutrition period, or to serve as a NTVA under the immediate supervision and direction of the certificated personnel of the district to perform non-instructional work which serves to assist the certificated personnel in performance of teaching and administrative responsibilities. (Education Code 35021) 2)Specifies that a school district or county office of education may request that a local law enforcement agency conduct an automated records check of a prospective NTVA in order to ascertain whether the prospective NTVA has been convicted of any sex offense as defined in Section 44010. A plea or verdict AB 13 Page 2 of guilty, a finding of guilt by a court in a trial without jury, or a conviction following a plea of nolo contendere shall be deemed to be a conviction within the meaning of this section. If the local law enforcement agency agrees to provide that automated records check, the results therefrom shall be returned to the requesting district or county office of education within 72 hours of the written request. A local law enforcement agency may charge a fee to the requesting agency not to exceed the actual expense to the law enforcement agency. (Education Code 35021.1) 3)Specifies when a school district or COE requests from the Department of Justice (DOJ) records involving criminal offenses committed by a prospective volunteer, the school district or COE may request that the DOJ provide subsequent arrest notification service and specifies the DOJ shall comply with such a request. (Education Code 35021.2) 4)Specifies that parents and guardians of pupils enrolled in public schools have the right and should have the opportunity to participate in the education of their children, including but not limited to, by volunteering their time and resources for the improvement of school facilities and school programs under the supervision of district employees, including, but not limited to, providing assistance in the classroom with the approval, and under the direct supervision, of the teacher. (Education Code 51101) FISCAL EFFECT : According to the Assembly Appropriations Committee, for a substantially similar measure, minor absorbable costs to school districts, COEs, and charter schools that choose to conduct an automated records check of NTVAs, as specified. Current law authorizes school districts to conduct a check for sex offenses. In most cases, the NTVA pays all or part of the automated records check fee. It costs approximately $32 to the DOJ, and $19 to the Federal Bureau of Investigations to cover the costs of fingerprinting and the background check. Potential one-time General Fund/Proposition 98 (GF/98) cost pressure to charter schools, likely less than $100,000, to develop initial systems to ensure employees and paid volunteers serving in a coaching capacity comply with automated record checks. In most cases, individuals pay all or part of the automated records check fee, as referenced above. According to a May 2006 decision by the Commission on State Mandates (CSM), charter schools are not eligible to claim mandate reimbursements. In AB 13 Page 3 denying charter schools' mandate claims, the CSM repeatedly cites the fact that charter schools are "voluntarily" created. COMMENTS : Background regarding Nonteaching Volunteer Aides (NTVA) . NTVAs are under the immediate supervision and direction of certificated personnel of a district and are generally parents who choose to volunteer in their child's classroom, in the school office, or for school field trips. Current law authorizes any individual to volunteer in school districts, unless that individual is a registered sex offender. Current law also authorizes school districts to fingerprint NTVAs to ascertain whether the prospective volunteer has been convicted of certain sex offenses that would prohibit employment of that individual by the school district. In practice, many school districts require volunteers to be fingerprinted; however, there is no state statutory requirement for districts to do so. The intent of this bill is to prohibit districts from allowing individuals from volunteering in schools, if the district chooses to fingerprint them, and finds that they have been convicted of the same sex, felony drug and violent/serious offenses that would prohibit that person from otherwise being employed by the school district. According to the author, local school districts have reported instances where parents of students and other individuals will offer to volunteer in their child's classroom, on field trips and/or for other district activities. However, when the district has run their fingerprints, the DOJ report comes back showing convictions for offenses that would prohibit the district, under current law, from employing them but does not prohibit them from volunteering. While school districts want to encourage parents to participate in their children's education, they must at the end of the day ensure the safety of all students, staff and other district visitors. Employment Prohibition . 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 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 AB 13 Page 4 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. By referencing these same employment code sections, NTVAs will also be provided the same opportunity to expunge their record under Section 1203.4. Convictions in the Past . This bill prohibits individuals with certain convictions from volunteering in schools, without regard to how long ago those convictions took place. For example, an individual could have been convicted of selling heroin 15 years ago, and despite any personal rehabilitation that person has undergone, they would still be prohibited from volunteering at a school. The committee should consider whether a time limit should be included in the bill for drug offense convictions. This bill also prohibits individuals with certain serious and violent felony convictions from volunteering in schools. These serious or violent felonies include, but are not limited to: conspiracy to commit a crime, arson, first degree burglary, assault with a deadly weapon on a peace officer, firefighter, public transit employee, custodial officer or school employee, use of weapons of mass destruction, shooting from a vehicle, detonating an explosive device. The committee should consider whether individuals convicted of these crimes should be prohibited from volunteering in schools indefinitely, or if a time limit should be included in the bill for serious and violent felonies. Crimes Involving Children . Some of the felony drug offenses included in the bill involve children, such as drug sales on a school ground, or drug sales involving a minor child. The committee should consider whether these offenses should be treated differently than drug offenses that do not involve children or school facilities. Arguments in Support : According to the California School Employees Association, "Conforming safeguards regarding volunteers to those that already exist for employees, as well as ensuring that such protections apply to charter schools, will ensure the safety of all students, staff and volunteers in California's public schools." AB 13 Page 5 Arguments in Opposition : According to Public Advocates, East Bay Community Law Center, Legal Services for Prisoners with Children, American Civil Liberties Union, Bay Area Parent Leadership Action Network and the National Employment Law Project, "AB 13 would prohibit parents and other community volunteers from helping out in classrooms and on school field trips if they have certain drug or any "serious and violent felony" convictions. As currently written, regardless of whether the past conviction occurred more than 10, 20, or even 30 years ago, AB 13 will bar parents from meaningful participation in their children's education. Excluding people with past drug and other serious convictions from volunteering will disparately impact low-income communities and communities of color because of the racial disparities in the criminal justice system. In fact, Title VII of the Civil Rights Act prohibits blanket bans against hiring people with past convictions because of the racially disparate effect of such bans." Committee Amendments : Staff recommends the bill be amended to remove the felony drug offenses that do not involve minors, from the volunteer prohibition. Staff recommends the bill also be amended to authorize individuals to volunteer in schools who have been convicted of felony drug offenses that involve minors and violent/serious offenses, when those convictions occurred more than 5 years in the past. This will provide a 5-year "wash-out" for individuals convicted of felony drug offenses involving minors and violent/serious offenses and allow them to volunteer in schools after 5-years has elapsed from the conviction. Related legislation : AB 2034 (Knight), which failed passage in the Senate Education Committee, would have prohibited school districts, COEs, or charter schools that elect to fingerprint volunteers from allowing individuals who have been convicted of specific sex, drug or violent offenses to volunteer in schools, and required charter schools to comply with existing fingerprinting laws. AB 346 (Conway) Chapter 52, Statutes of 2010, made changes to the requirements for the Activity Supervisor Clearance Certificate (ASCC). AB 1025 (Conway) Chapter 379, Statutes of 2009, authorizes the Commission on Teacher Credentialing to issue an ASCC to allow AB 13 Page 6 non-credentialed individuals, in a paid or volunteer capacity, to supervise or coach a pupil activity program. REGISTERED SUPPORT / OPPOSITION : Support California Police Chiefs Association California School Employees Association California State Sheriffs' Association Child Abuse Prevention Center United Teachers Los Angeles Opposition American Civil Liberties Union Bay Area Parent Leadership Action Network Californians United for a Responsible Budget Drug Policy Alliance East Bay Community Law Center Equal Justice Society Fair Chance Project Friends Committee on Legislation of California Justice Now Legal Services for Children Legal Services for Prisoners with Children National Employment Law Project Public Advocates Stanford Community Law Clinic Transgender Gender-Variant & Intersex Justice Project Numerous Individuals Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087