California Legislature—2013–14 Regular Session

Assembly Bill No. 389

Introduced by Assembly Member Williams

February 15, 2013

An act to amend Section 44237 of the Education Code, relating to private schools.

LEGISLATIVE COUNSEL’S DIGEST

AB 389, as introduced, Williams. Private schools: employees.

Existing law requires every person, firm, association, partnership, or corporation offering or conducting private school instruction on the 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 California state teaching credential, or is not currently licensed by another state agency that requires a criminal record summary, to submit 2 sets of fingerprints to the Department of Justice for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation.

This bill would delete the exemption for applicants possessing a valid California state teaching credential or who are currently licensed by another state agency that requires a criminal record summary, from submitting 2 sets of fingerprints for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation. The bill also would make technical, nonsubstantive changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

SECTION 1.  

Section 44237 of the Education Code is amended
to read:

44237.  

(a) Every person, firm, association, partnership, or
corporation offering or conducting private school instruction on
the elementary or high school level shall require each applicant
for employment in a position requiring contact with minor pupils
begin delete that directly relates to services provided in a facility described in
this section and has background clearance criteria that meets or
exceeds the requirements of this section, who does not possess a
valid credential issued by the commission or is not currently
licensed by another state agency that requires a criminal record
summary end delete 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.

(b) (1) As used in this section, “employer” means every person,
firm, association, partnership, or corporation offering or conducting
private school instruction on the elementary or high school level.

(2) As use in this section, “employment” means the act of
engaging the services of a person, who will have contact with
pupils, to work in a position at a private school at the elementary
or high school level on or after September 30, 1997, on a regular,
paid full-time basis, regular, paid part-time basis, or paid begin delete full- end delete
begin insert full-time end insert or part-time seasonal basis.

(3) As used in this section, “applicant” means any person who
is seriously being considered for employment by an employer.

(4) This section does not apply to a secondary school pupil
working at the school he or she attends or a parent or legal guardian
working exclusively with his or her children.

(c) (1) Upon receiving the identification 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 of Justice and
forward the information to the employer submitting the fingerprints
no more than 15 working days after receiving the identification
cards. The Department of Justice shall not forward information
regarding 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 of Justice shall notify the employer submitting the
fingerprints that it cannot so ascertain the required information.
This notification shall be delivered by telephone or email to the
employer submitting the fingerprints. If the employer submitting
the fingerprints is notified by the Department of Justice that it
cannot ascertain the required information about a person, the
employer shall not employ that person until the Department of
Justice ascertains that information.

(3) The Department of Justice shall review the criminal record
summary it obtains from the Federal Bureau of Investigation to
ascertain whether an applicant for employment has a conviction,
or an arrest pending final adjudication, for any sex offense,
controlled substance offense, crime of violence, or serious or
violent felony. The Department of Justice shall provide written
notification to the private school employer only as to whether an
applicant for employment has any convictions, or arrests pending
final adjudication, for any of these crimes.

(d) An employer 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.

(e) (1) An employer shall not employ a person who has been
convicted of a violent or serious felony or a person who would be
prohibited from employment by a public school district pursuant
to any provision of this code because of his or her conviction for
any crime.

(2) A person who would be prohibited from employment by a
private school pursuant to paragraph (1) may not, on or after July
1, 1999, own or operate a private school offering instruction on
the elementary or high school level.

(f) An employer shall request subsequent arrest service from
the Department of Justice as provided under Section 11105.2 of
the Penal Code.

(g) This section applies to any violent or serious offense begin delete which end delete
begin insert that end insert , if committed in this state, would have been punishable as a
violent or serious felony.

(h) For purposes of this section, a violent felony is any felony
listed in subdivision (c) of Section 667.5 of the Penal Code and a
serious felony is any felony listed in subdivision (c) of Section
1192.7 of the Penal Code.

(i) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis
that the person has been convicted of a violent or serious felony
if the person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of
Title 6 of Part 3 of the Penal Code.

(j) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis
that the person has been convicted of a serious felony that is not
also a violent felony if that person can prove to the sentencing
court of the offense in question, by clear and convincing evidence,
that he or she has been rehabilitated for the purposes of school
employment for at least one year. If the offense in question
occurred outside this state, then the person may seek a finding of
rehabilitation from the court in the county in which he or she is a
resident.

(k) The commission shall make available to each private school
a listing of all credentialholders who have had final adverse action
taken against their credential. The information shall be identical
to that made available to public schools in the state. The
commission shall also send on a quarterly basis a complete and
updated list of all teachers who have had their teaching credentials
revoked or suspended, excluding teachers who have had their
credentials reinstated, or who are deceased.

(l) The Department of Justice may charge a reasonable fee to
cover costs associated with the processing, reviewing, and
supplying of the criminal record summary as required by this
section. The fee shall not exceed the actual costs incurred by the
Department of Justice.

(m) 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.

(n) All information obtained from the Department of Justice is
confidential. Agencies 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 to 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.