BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 389
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          Date of Hearing:   April 3, 2013

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Joan Buchanan, Chair
                   AB 389 (Williams) - As Amended:  March 21, 2013
           
          SUBJECT  :   Private schools: employees.

           SUMMARY  :  Requires private schools to fingerprint all employees  
          who will have contact with minors; and, requires nonpublic,  
          nonsectarian schools to provide the Superintendent of Public  
          Instruction (SPI) evidence of a successful criminal background  
          check determination for each owner, operator and employee of the  
          school or agency.

           EXISTING LAW  : 

          1)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 that directly relates to services provided 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 to submit two sets of fingerprints prepared for  
            submittal by the employer to the Department of Justice (DOJ)  
            for the purpose of obtaining criminal record summary  
            information from the DOJ and the Federal Bureau of  
            Investigation (FBI).

          2)Requires a nonpublic, nonsectarian school or agency that seeks  
            certification to file an application with the SPI; and,  
            requires the application to include affidavits and assurances  
            necessary to comply with all applicable federal, state, and  
            local laws and regulations that include criminal record  
            summaries required of all nonpublic, nonsectarian school or  
            agency personnel having contact with minor children.   
            (Education Code Section 56366.1)

          3)Requires the governing board of any school district to require  
            each person to be employed in a position not requiring  
            certification qualifications, to have two fingerprint cards  
            bearing the legible rolled and flat impressions of the  








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            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  
            to the DOJ; except that any district, or districts with a  
            common board, may process the fingerprint cards if the  
            district so elects.

          4)Prohibits any person who has been convicted of a violent or  
            serious felony to be hired by a school district in a position  
            requiring certification qualifications or supervising  
            positions requiring certification qualifications. A school  
            district shall not retain in employment a current certificated  
            employee who has been convicted of a violent or serious  
            felony, and who is a temporary employee, a substitute  
            employee, or a probationary employee serving before March 15  
            of the employee's second probationary year.  Further specifies  
            that when the governing board of any school district requests  
            a criminal record summary of a temporary, substitute, or  
            probationary certificated employee, two fingerprint cards,  
            bearing the legible rolled and flat impressions of the  
            person's fingerprints together with a personal description and  
            the fee, shall be submitted to the DOJ.

          5)Specifies the DOJ may provide subsequent state or federal  
            arrest or disposition notification to any entity authorized by  
            state or federal law to receive state or federal summary  
            criminal history information to assist in fulfilling  
            employment, licensing, certification duties, or the duties of  
            approving relative caregivers and nonrelative extended family  
            members, upon the arrest or disposition of any person whose  
            fingerprints are maintained on file at the Department of  
            Justice or the Federal Bureau of Investigation as the result  
            of an application for licensing, employment, certification, or  
            approval.  (Penal Code Section 11105.2)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   According to the author, AB 389 establishes  
          uniformity between public and private/nonpublic schools  
          regarding employee background check requirements. Nonpublic  
          schools are private schools funded with public dollars to serve  
          students with exceptional needs. According to the California  
          Department of Education, there are 293 certified nonpublic  
          schools. Approximately 12,635 California students are educated  








                                                                  AB 389
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          each year in nonpublic schools located both in California and in  
          other states.  
           
          This bill requires all private schools, including nonpublic  
          schools, to fingerprint their employees who have contact with  
          pupils; and, the bill further clarifies that during the  
          certification process for nonpublic schools, the SPI shall have  
          access to evidence that demonstrates these schools are  
          completing the necessary background checks on their employees.

          Nonpublic schools often serve the most vulnerable students. When  
          a child has needs that cannot be met in a public school setting,  
          that child may be educated in a nonpublic school at public  
          expense. Students qualified for placement in nonpublic schools  
          have exceptional learning, behavioral, or physical handicapping  
          conditions that negatively impact their educational progress.  
          Typical handicapping conditions of nonpublic school students  
          include: learning disabled, seriously emotionally disturbed,  
          developmentally disabled, autistic, speech and language  
          impaired, or other health impairments. These students, like all  
          California students, deserve to be protected but are potentially  
          most at risk of not being able to communicate abuse.

           Fingerprinting at Private Schools and Nonpublic Schools  :   
          Current law requires districts and charter schools to conduct a  
          background check on any certificated employee whose employment  
          status is temporary, substitute, or probationary or on any  
          non-certificated person who will be employed by the district.   
          Because districts and charter schools are required to establish  
          a relationship regarding employees with the Department of  
          Justice (DOJ) through the background check process, public  
          school districts and charter schools are notified of subsequent  
          arrests. This mechanism enables them to take immediate action  
          including conducting their own internal investigation of an  
          arrest. If necessary, a district or charter school can then  
          immediately remove an employee from a classroom to ensure  
          student safety.

          Existing law exempts certificated or licensed employees at  
          private schools, including nonpublic schools, from the  
          background check requirements if these individuals possess a  
          valid California state teaching credential or are currently  
          licensed by another state agency that requires a criminal record  
          summary.  Although the Commission on Teacher Credentialing (CTC)  
          and other licensing agencies require background checks, the law  








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          prohibits interagency sharing of records thereby preventing the  
          CTC from providing to districts information it receives from the  
          DOJ. Consequently, private schools, including nonpublic schools,  
          would not receive notification of any arrest of a certificated  
          employee if one occurred after they are hired. 

          Because public school districts or charter schools are required  
          to have a relationship established with the DOJ, the district or  
          charter school is quickly notified of an arrest and has the  
          ability to take immediate action and investigate the arrest.  
          However, since there is no existing requirement that a private  
          school, including a nonpublic school, establish a relationship  
          with the DOJ through background checks, a private school,  
          including a nonpublic school, would not be notified if an  
          employee is arrested, and under the current process, would not  
          be able to immediately undertake an investigation to ensure the  
          safety of students who interact with that employee. 

          AB 389 deletes the exemption for private school, including a  
          nonpublic school, certificated and licensed employees from  
          background checks. This bill is necessary to ensure that all  
          schools, including those that serve the most vulnerable of  
          students, have the information and tools necessary to ensure  
          student safety in the school environment. 

           Certification for Nonpublic Schools  : The SPI certifies nonpublic  
          schools and part of the certification process requires the SPI  
          to confirm that the school is doing the proper background checks  
          on its employees.  Due to privacy laws, the SPI is not able to  
          obtain the appropriate evidence that the background checks are  
          taking place when the employees are hired and that proper steps  
          are taken when someone is arrested after they are hired.  This  
          bill requires nonpublic, nonsectarian schools to provide the SPI  
          evidence of a criminal background check and clearance on each  
          operator and employee.  The committee should consider what  
          evidence the SPI will have access to as part of this requirement  
          and whether this evidence will be sufficient to certify the  
          process is being handled appropriately.   The committee should  
          also consider whether the evidence obtained by the SPI will  
          violate any privacy laws.  As currently drafted, the bill does  
          not require evidence of proper handling of arrest notices that  
          the nonpublic school receives after someone is hired, therefore,  
          committee staff recommends the bill be amended to clarify that  
          nonpublic schools must also provide evidence to the SPI that  
          proper action is being taken when employees are arrested after  








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          they are hired.

          Committee Amendment  :  Clarify that nonpublic schools must also  
          provide evidence to the SPI that proper action is being taken  
          when employees have subsequent arrests after they are hired.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          State Superintendent of Public Instruction Tom Torlakson  
          (Sponsor)

           Opposition 
           
          None on file.
           

          Analysis Prepared by  :    Chelsea Kelley / ED. / (916) 319-2087