BILL ANALYSIS Ó AB 389 Page 1 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 AB 389 Page 2 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 Page 3 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 AB 389 Page 4 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 AB 389 Page 5 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