Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 349

Introduced by Assembly Member Gatto

February 13, 2013

An act to begin delete amend Section 45125 of end delete begin insert add Section 45118 to end insert the Education Code, relating to school administration.

LEGISLATIVE COUNSEL’S DIGEST

AB 349, as amended, Gatto. Classified employees: begin delete background checks. end delete begin insert misconduct against a child: reports. end insert

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Existing law authorizes the governing board of a school district to lay off and reemploy classified employees in accordance with specified procedures. Existing law requires classified employees subject to a layoff, to be effective at the end of the school year, to be given written notice on or before April 29 informing them of the layoff and of any displacement and reemployment rights.

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This bill would require the superintendent of the employing school district or a charter school administrator to report a change in employment status to the State Department of Education when a classified employee is dismissed, is suspended, resigns, retires, or is otherwise terminated by a decision not to employ or reemploy, as a result of allegations of misconduct against a child, as defined. The bill would require the report to the department to contain all known information about each alleged act of misconduct and would require the department to maintain the report. By imposing a new duty on a school district or charter school, the bill would create a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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Existing law requires the governing board of a school district to require each person to be employed in specified positions to have 2 fingerprint cards bearing the legible rolled and flat impressions of the person’s fingerprints together with a personal description of the applicant prepared by a local public law enforcement agency having jurisdiction in the area of the school district and requires the agency to transmit these items to the Department of Justice. Existing law requires the Department of Justice to ascertain whether the person has been arrested or convicted of a crime and forward this information to the employing agency within 15 working days after receiving the fingerprint cards.

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This bill would require the Department of Justice to forward this information within 10 working days.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 45118 is added to the end insert begin insert Education Code end insert begin insert ,
to read: end insert

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begin insert 45118. end insert   

(a) When a classified employee is dismissed, resigns,
is suspended, retires, or is otherwise terminated by a decision not
to employ or reemploy, as a result of an allegation of misconduct
against a child or while an allegation of misconduct against a
child is pending, the superintendent of the employing school district
or a charter school administrator shall report the change in
employment status to the department no later than 30 days after
the employment action.

(b) For the purposes of the this section, “allegation of
misconduct against a child” means an offense specified in Sections
11165.2 to 11165.6, inclusive, of the Penal Code, a sex offense as
specified in Sections 44010, and aiding or abetting the unlawful
sale to, use by, or exchange to minors of a controlled substance
listed in Schedule I, II, or III as included in Sections 11054, 11055,
and 11056 of the Health and Safety Code.

(c) For purposes of this section, the term “school district”
includes a county office of education.

(d) The report shall contain all known information about each
alleged act of misconduct.

(e) The report shall be made to the department regardless of
any proposed or actual agreement, settlement, or stipulation not
to make such a report. The report shall also be made if allegations
of misconduct against a child served on the employee are
withdrawn in consideration of the employee’s resignation,
retirement, or other failure to contest the truth of the allegations.
The department shall maintain these reports by county and by
school district or charter school.

(f) The superintendent of an employing school district or a
charter school administrator shall, in writing, inform a classified
employee of the content of this section if that employee is dismissed,
resigns, is suspended, retires, or is otherwise terminated by a
decision not to employ or reemploy, as a result of an allegation
of misconduct against a child or while an allegation of misconduct
against a child is pending.

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begin insert

begin insert SEC. 2. end insert   

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If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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begin delete

SECTION 1.  

Section 45125 of the Education Code is amended
to read:

45125.  

(a) (1) Except as provided in Section 45125.01, the
governing board of a school district shall require each person to
be employed in a position that does not require certification
qualifications, except a secondary school pupil employed in a
temporary or part-time position by the governing board of the
school district having jurisdiction over the school attended by the
pupil, to have two fingerprint cards bearing the legible rolled and
flat impressions of the person’s fingerprints together with a
personal description of the applicant prepared by a local public
law enforcement agency having jurisdiction in the area of the
school district, which agency shall transmit the cards, together
with the fee required by subdivision (f), to the Department of
Justice, except that any district, or districts with a common board,
may process the fingerprint cards if the district so elects.

(2) As used in this section, “local public law enforcement
agency” includes a school district and as used in Section 45126
requires the Department of Justice to provide to a school district,
upon application, information pertaining only to applicants for
employment by the district, including applicants who are
employees of another district.

(b) (1) Upon receiving the fingerprint cards, the Department
of Justice shall ascertain whether the applicant has been arrested
or convicted of any crime insofar as that fact can be ascertained
from information available to the department and forward the
information to the employing agency submitting the applicant’s
fingerprints no more than 10 working days after receiving the
fingerprint cards. The Department of Justice shall not forward
records of criminal proceedings that did not result in a conviction
but shall forward information on arrests pending adjudication.

(2) Upon implementation of an electronic fingerprinting system
with terminals located statewide and managed by the Department
of Justice, the Department of Justice shall ascertain the information
required pursuant to this subdivision within three working days.
If the Department of Justice cannot ascertain the information
required pursuant to this subdivision within three working days,
the department shall notify the school district that it cannot so
ascertain the required information. This notification shall be
delivered by telephone or electronic mail to the school district. If
a school district is notified by the Department of Justice that it
cannot ascertain the required information about a person, the school
district shall not employ that person until the Department of Justice
ascertains that information.

(3) In the case of a person to be employed in a position not
requiring certification qualifications who is described in
subparagraph (A) or (B), the school district shall request the
Department of Justice to forward one copy of the fingerprint cards
to the Federal Bureau of Investigation for the purpose of obtaining
any record of previous convictions of the applicant.

(A) The person has not resided in the State of California for at
least one year immediately preceding the person’s application for
employment.

(B) The person has resided for more than one year, but less than
seven years, in the State of California and the Department of Justice
has ascertained that the person was convicted of a sex offense
where the victim was a minor or a drug offense where an element
of the offense is either the distribution to, or the use of a controlled
substance by, a minor.

(c) The governing board of a school district shall not employ a
person until the Department of Justice completes its check of the
state criminal history file as set forth in this section and Sections
45125.5 and 45126, except that this subdivision does not apply to
secondary school pupils who are to be employed in a temporary
or part-time position by the governing board of the school district
having jurisdiction over the school they attend.

(d) The governing board of a district shall maintain a list
indicating the number of current employees, except secondary
school pupils employed in a temporary or part-time position by
the governing board of the school district having jurisdiction over
the school they attend, who have not completed the requirements
of this section. The Department of Justice shall process these cards
within 30 working days of their receipt and any cards in its
possession on the date of the amendment of this section by
Assembly Bill 1610 of the 1997-98 Regular Session within 30
working days of that date. School districts that have previously
submitted identification cards for current employees to either the
Department of Justice or the Federal Bureau of Investigation shall
not be required to further implement the provisions of this section
as it applies to those employees.

(e) A plea or verdict of guilty or a finding of guilt by a court in
a trial without a jury or forfeiture of bail is deemed to be a
conviction within the meaning of this section, irrespective of a
subsequent order pursuant to Section 1203.4 of the Penal Code
allowing the withdrawal of the plea of guilty and entering of a plea
of not guilty, or setting aside the verdict of guilty, or dismissing
the accusations or information.

(f) (1) The school district shall provide the means whereby the
fingerprint cards may be completed and may charge a fee
determined by the Department of Justice to be sufficient to
reimburse the department for the costs incurred in processing the
application. The amount of the fee shall be forwarded to the
Department of Justice with the required copies of applicant’s
fingerprint cards. The governing board may collect a reasonable
fee payable to the local public law enforcement agency taking the
fingerprints and completing the data on the fingerprint cards. The
fees shall not exceed the actual costs incurred by the agency.

(2) The additional fees shall be transmitted to the city or county
treasury. If an applicant is subsequently hired by the board within
30 days of the application, the fee may be reimbursed to the
applicant. Funds not reimbursed to applicants shall be credited to
the general fund of the district. If the fingerprint cards forwarded
to the Department of Justice are those of a person already in the
employ of the governing board, the district shall pay the fee
required by this section, which fee shall be a proper charge against
the general fund of the district, and no fee shall be charged the
employee.

(g) This section applies to substitute and temporary employees
regardless of length of employment.

(h) Subdivision (c) of this section shall not apply to a person to
be employed if a school district determines that an emergency or
an exceptional situation exists, and that a delay in filling the
position in which the person would be employed would endanger
pupil health or safety.

(i) Where reasonable access to the statewide, electronic
fingerprinting network is available, the Department of Justice may
mandate electronic submission of the fingerprints and related
information required by this section.

(j) A school district shall request subsequent arrest service from
the Department of Justice as provided under Section 11105.2 of
the Penal Code.

(k) All information obtained from the Department of Justice is
confidential. An agency handling Department of Justice
information shall ensure the following:

(1) A recipient shall not disclose its contents or provide copies
of information.

(2) Information received shall be stored in a locked file separate
from other files, and shall only be accessible to the custodian of
records.

(3) Information received shall be destroyed upon the hiring
determination in accordance with subdivision (a) of Section 708
of Title 11 of the California Code of Regulations.

(4) Compliance with destruction, storage, dissemination,
auditing, backgrounding, and training requirements as set forth in
Sections 700 through 708, inclusive, of Title 11 of the California
Code of Regulations and Section 11077 of the Penal Code
governing the use and security of criminal offender record
information is the responsibility of the entity receiving the
information from the Department of Justice.

(l) Notwithstanding any other provision of law, the Department
of Justice shall process pursuant to this section all requests from
a school district, an employer, or a human resource agency for
criminal history information on a volunteer to be used in a school.

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