BILL NUMBER: AB 349 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 1, 2013
INTRODUCED BY Assembly Member Gatto
FEBRUARY 13, 2013
An act to amend Section 45125 of add
Section 45118 to the Education Code, relating to school
administration.
LEGISLATIVE COUNSEL'S DIGEST
AB 349, as amended, Gatto. Classified employees:
background checks. misconduct against a child:
reports.
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.
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.
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.
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.
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.
This bill would require the Department of Justice to forward this
information within 10 working days.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 45118 is added to the
Education Code , to read:
45118. (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.
SEC. 2. 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.
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.