BILL ANALYSIS                                                                                                                                                                                                    






                          SENATE COMMITTEE ON EDUCATION
                              Alan Lowenthal, Chair
                             2011-12 Regular Session
                                         

          BILL NO:       AB 13
          AUTHOR:        Knight
          AMENDED:       May 11, 2011
          FISCAL COMM:   Yes            HEARING DATE:  June 29, 2011
          URGENCY:       No             CONSULTANT:Beth Graybill

           NOTE  :   This bill has been referred to the Committees on 
                    Education and Public
                        Safety.  A "do pass" motion should include 
                    referral to the Committee on
                        Public Safety.

           SUBJECT  :  Public School Volunteers.
          
           SUMMARY   

          This bill authorizes a school district, county office of 
          education, or charter school to request a local law 
          enforcement agency to conduct a criminal records check of a 
          prospective nonteaching volunteer; prohibits persons who have 
          been convicted of certain violent or serious felonies, 
          specified sex offenses, or felony controlled substances 
          offenses from serving as a nonteaching volunteer, as 
          specified; and requires charter schools to comply with 
          existing fingerprint laws.  

           BACKGROUND  

          Existing law provides parents and guardians with certain 
          rights, including the right to volunteer their time and 
          resources for the improvement of school facilities and 
          programs under the direct supervision of district employees, 
          including but not limited to providing assistance in the 
          classroom with the approval of and under the direct 
          supervision of the teacher.  In adopting policies that 
          outline the manner in which parents or guardians, school 
          staff, and pupils may share responsibility for the 
          intellectual, physical, emotional, and social development and 
          well-being of pupils, school district governing boards must 
          specify the manner in which the parents and guardians of 
          pupils may support the learning environment, including 





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          volunteering in their children's classrooms or for other 
          activities at the school.  School districts are specifically 
          not authorized to permit participation by a parent or 
          guardian if it conflicts with a valid restraining order, 
          protective order, or order for custody or visitation issued 
          by a court of competent jurisdiction.  (Education Code  
          51101)

          Existing law prohibits public and private schools from 
          employing individuals in non-certificated positions without 
          first conducting a criminal background check of the 
          individual.  Existing law also provides that employees of 
          entities that provide certain contracted services to school 
          districts who may come into contact with pupils to be 
          fingerprinted and prohibits employees of those entities from 
          coming into contact with pupils if they have been convicted 
          of a serious or violent felony.  
          (EC  45125 and  45125.1)  
          Under existing law, a school district or county office of 
          education (COE) may request that a local law enforcement 
          agency conduct an automated records check of a prospective 
          nonteaching volunteer aide in order to ascertain whether the 
          individual has been convicted of any sex offense as defined 
          in Section 44010.  If the local law enforcement agency agrees 
          to provide that automatic record check, the results therefrom 
          must be returned to the requesting district or COE within 72 
          hours of the written request.  (EC  35021.1)  

          Under existing law, sex offender registrants whose sex crime 
          was against a victim under age 16 are prohibited by law from 
          working, as an employee or volunteer, with minors, if the 
          registrant would be working with minors directly and in an 
          unaccompanied setting on more than an incidental or 
          occasional basis or would have supervisory or disciplinary 
          power over the child.  If the registrant's crime was not 
          against a victim under age 16, the registrant must notify the 
          employer or volunteer organization of his status as a 
          registrant.  Failure to comply with this law is a misdemeanor 
          offense.  (Penal Code 290.95)

          Current law 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 that the 
          DOJ shall comply with that request.  (EC  35021.2)  





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          Existing law prohibits the governing board of a school 
          district from employing or retaining in employment the 
          following persons:  

              Persons who have been convicted of a violent or serious 
               felony unless the person has obtained a certificate of 
               rehabilitation and pardon.  
               (EC  45122.1)  

              Persons who have been convicted of specified sex 
               offenses unless the conviction was reversed, the person 
               was acquitted, or the conviction was dismissed pursuant 
               to Section 1203.4 of the Penal Code.<1>  (EC  44836)  

              Persons who have been convicted of specified drug 
               offenses unless the conviction is reversed, the person 
               is acquitted, or the charges are dismissed.  (EC  
               44836)  

          Existing law requires individuals assuming a paid or 
          volunteer position to supervise, direct, or coach a pupil 
          activity program sponsored by a school district to obtain an 
          Activity Supervisor Clearance Certificate from the Commission 
          on Teacher Credentialing (who conducts a criminal background 
          check prior to issuing the certificate).  (EC  49024)  



           ANALYSIS  

           This bill  :

          1)   Authorizes a school district, county office of 
               education, or charter school to request a local law 
               enforcement agency to conduct an automated records check 
               of a prospective nonteaching volunteer aide (NTVA) in 
               order to ascertain whether the individual has been 
               convicted of a specified sex offense, a specified felony 
               controlled substance offense that involves a minor, or a 
               violent or serious felony, as specified.  
          --------------------------
          <1> Penal Code  1203.4 provides a process by which 
          individuals as specified, who have fulfilled the conditions 
          of their probation or been discharged prior to the 
          termination of the period of probation, may petition the 
          court for a dismissal of the accusations.  




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          2)   Specifies that a person who would be prohibited from 
               employment or retention in employment due to conviction 
               of a sex offense or violent or serious felony under 
               Education Code Sections 44836 or 45122.1 shall be 
               prohibited from serving as a NTVA.  Specifies however, 
               that a person who has been convicted of a violent or 
               serious felony under Education Code Section 45122.1 
               shall not be prohibited, solely because of that 
               conviction, from serving as a NTVA five years after the 
               date of that conviction.  

          3)   Specifies that a person who has been convicted of a 
               felony controlled substance offense that involves a 
               minor as specified in Section 11353, 11353.1, 11353.4, 
               11353.5, 11353.7, 11354, 11361, 11379.7, 11380, or 
               11380.1 of or subdivision (b) or (c) of Section 11353.6 
               of the Health and Safety Code or who has been convicted 
               of a controlled substance offense that involves a minor 
               in another state that would be classified as a felony 
               controlled substance offense under those same 
               provisions, shall be prohibited from serving as a NTVA.  
               Specifies however, that a person who has been convicted 
               of these offenses shall not be prohibited, solely 
               because of that conviction, from serving as a NTVA five 
               years after the date of that conviction.

          4)   Requires charter schools to comply with existing law 
               that prohibits school districts from employing or 
               retaining in employment, persons in public school 
               service who have been convicted of certain sex, 
               controlled substance, or serious or violent offenses, 
               and requires charter schools to comply with provisions 
               regarding fingerprinting for pupil activity supervisors. 
                

           STAFF COMMENTS  

           1)   Need for the bill  :  According to the author, many school 
               districts routinely require volunteers to undergo a 
               criminal background screening in order to ensure the 
               safety of their pupils.  Yet when the individual 
               screened is a parent and the screening reveals 
               convictions for offenses that would otherwise prohibit 
               the district from employing the individual, a district 
               may find it difficult to turn down the parent because 





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               current law specifies that parents and guardians have 
               the right to volunteer.  By prohibiting individuals who 
               have been convicted of certain crimes within the 
               previous five years from volunteering, this bill gives 
               school districts and charter schools that choose to 
               conduct criminal background checks the statutory 
               authority to preclude an individual from volunteering at 
               a school within the district.  

           2)   Automated records check  .  The California Department of 
               Justice (DOJ) provides an automated service for criminal 
               history background checks that may be required as a 
               condition of employment, licensing, certification, 
               foreign adoptions, or VISA/Immigration clearances.  The 
               Criminal Offender Record Information (CORI) system is 
               based on fingerprints that are transmitted digitally to 
               the DOJ.  According to the DOJ, because this bill 
               authorizes the automated records check to be conducted 
               by local law enforcement agencies, the criminal history 
               check would likely be additional criminal history name 
               searches accomplished through the California Law 
               Enforcement Telecommunications Report (CLETS).  The 
               CLETS is a non-fingerprint based system that provides 
               all criminal history (not just the offenses specified in 
               this bill).  Could a name-based records review result in 
               the disqualification of a parent due to mistaken 
               identity?  Could this requirement create an extra burden 
               for local law enforcement agencies that would have to 
               review the records in order to disclose only the 
               convictions specified in this bill?  Since school 
               districts already have the authority to conduct criminal 
               background checks on volunteers, is the authority 
               provided in this bill necessary?  

           3)   Protecting children  .  The Legislature has repeatedly 
               established high "fitness" standards for individuals who 
               work near and around vulnerable populations, including 
               children.  Several sections of the Education code 
               prohibit individuals convicted of certain crimes from 
               being employed by school districts.  Although volunteers 
               tend to have limited contact with children and serve 
               under the direction and supervision of teachers and 
               other school employees, it is unclear whether that 
               limited contact implies minimal risk to pupils.  Many 
               districts "err on the side of caution" and require 
               parent volunteers and other NTVAs to undergo a criminal 





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               background check prior to engaging in volunteer service 
               in the district.  

          This bill prohibits individuals with certain convictions from 
               volunteering in schools for five years after the date of 
               that conviction.  To the extent that this bill 
               establishes criminal "fitness" requirements for 
               volunteers that are similar to those that already exist 
               for school employees, this bill could strengthen the 
               ability of schools to create and maintain a safe 
               learning environment for their pupils.  The author's 
               office maintains that the bill is necessary because 
               "districts can't prevent interested parents with a 
               criminal background from volunteering no matter how 
               serious their criminal convictions or how recent those 
               convictions may be without running the risk of getting 
               sued."  However, opponents argue that this bill will 
               prevent many parents, especially mothers, from 
               participating in school activities during a critical 
               time in their children's lives.  Under current law, 
               school districts have the discretion to conduct criminal 
               background checks and determine how much or how little 
               time is needed by volunteers.  Under this measure, in 
               districts that do not require parent volunteers to be 
               screened, a parent who has been convicted of any of the 
               specified crimes could still be a volunteer.  Could the 
               prohibitions imposed by this bill limit the flexibility 
               of school districts to determine their own conditions 
               and opportunities for volunteer service?  


           4)   Impact on families  .  A June 2010 Research Brief 
               published by the University of California Los Angeles 
               Institute for Democracy, Education, and Access indicates 
               that although there is very little difference across 
               racial groups in reported use of illicit drugs, African 
               Americans are several times more likely than whites to 
               have been arrested and convicted of a drug offense.  
               Opponents contend that in some communities, AB 13 would 
               exclude a disproportionate number of individuals from 
               volunteering and make it difficult for parents with past 
               drug convictions to help out in classrooms or attend 
               school field trips.  Although amendments taken in the 
               Assembly Education Committee limit the volunteering 
               prohibition to the first five years following the 
               conviction, opponents maintain that the five-year "wash 





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               out" would still prevent many parents from participating 
               in their children's education.  

           5)   Related and prior legislation  .  This bill is similar to 
               AB 2034 (Knight, 2010) which also would have prohibited 
               school districts, county offices of education, 

               or charter schools that elect to screen volunteers from 
               allowing individuals who have been convicted of specific 
               violent, sex, or drug offenses to volunteer.  This bill 
               failed passage in this Committee on a 0-3 vote.  

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

           SUPPORT
           
          Antelope Valley Union High School District
          California Police Chiefs Association
          California School Employees Association
          California State Sheriffs' Association
          Child Abuse Prevention Center
          Keppel Union School District
          Monrovia Unified School District Superintendent of Schools
          Palmdale School District
          Peace Officers Research Association of California
          United Teachers Los Angeles

           OPPOSITION
           
          American Civil Liberties Union
          Bay Area Parent Leadership Action Network
          Californians United for a Responsible Budget
          Community Work West
          Drug Policy Alliance
          East Bay Community Law Center
          Ella Baker Center
          Equal Justice Society
          Fair Chance Project
          Friends Committee on Legislation of California
          Justice Now
          Legal Services for Prisoners with Children





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          National Employment Law Project
          Public Advocates
          The American Civil Liberties Union
          Letters from individuals