BILL ANALYSIS
AB 2685
Page 1
Date of Hearing: April 7, 2010
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 2685 (De La Torre) - As Amended: March 25, 2010
SUBJECT : Schools: criminal background of employees and board
members.
SUMMARY : An urgency measure that requires members of a county
board of education, school district board of education, a
charter school governing body or a charter school administrator
to be fingerprinted prior to taking office; requires the
Commission on Teacher Credentialing (CTC) to maintain a database
of individuals that work for private schools that have been
arrested or convicted of certain sex offenses; and, requires the
CTC to either deny or revoke a credential for specified
offenses. Specifically, this bill :
1)Requires a person elected, appointed, or otherwise selected to
serve on a county board of education, a school district board,
or a charter school governing body to successfully complete a
criminal background check in accordance with Section 45125
prior to taking office.
2)Requires a private school to notify the CTC whenever an
employee who comes in contact with students is charged with
the commission of any sex offense as defined in Section 44010,
no later than 10 days after being informed that the employee
has been charged.
3)Requires the CTC, with assistance from the Department of
Justice, to establish and maintain a database of all persons
who do not possess a valid credential issued by the CTC, who
are or were employed by a private school in a position
requiring contact with students, and who has been arrested or
convinced as a sex offense, as defined in Section 44010 and,
specifies the database shall include, among other information,
the name and address of the private school at which the person
is or was employed.
4)Requires the CTC to deny and revoke a credential to an
applicant who has been convicted of a felony offense defined
in Section 273a, 273ab, or 278 of the Penal Code, even if the
person is eligible for, and has obtained, a certificate of
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rehabilitation and pardon.
5)Requires a person serving as a charter school administrator to
successfully complete a background check in accordance with
Section 45125; and, specifies that a person who is serving as
an administrator or member of a charter school governing body
at the time this bill takes effect shall complete the
background check within 90 days.
EXISTING LAW :
1)Requires school district governing boards to require
individuals employed by the district, that are not
certificated, to be fingerprinted. (Education code 45125)
2)Prohibits a school district from employing an individual that
has been convicted of certain sex, drug and violent offences,
as specified. (Education code 44836)
3)Establishes mandatory minimum sentences for individuals
convicted of willfully causing or permitting any child to
suffer, or inflicting thereon unjustifiable physical pain or
mental suffering, or having the care or custody of any child,
willfully causing or permitting the person or health of that
child to be injured, or willfully causing or permitting that
child to be placed in a situation where his or her person or
health is endangered. (Penal code 273a)
4)Establishes a mandatory minimum sentence for any person who,
having the care or custody of a child who is under eight years
of age, assaults the child by means of force that to a
reasonable person would be likely to produce great bodily
injury, resulting in the child's death. (Penal code 273ab)
5)Establishes jail time and fines for every person, not having a
right to custody, who maliciously takes, entices away, keeps,
withholds, or conceals any child with the intent to detain or
conceal that child from a lawful custodian. (Penal code 278)
6)Defines sex offenses which prohibit an individual from being
employed by a school district. (Education code 44010)
7)Requires private school 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
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credential issued by the CTC 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 for the purpose of
obtaining criminal record summary information from the
Department of Justice and the Federal Bureau of Investigation.
(Education code 44237)
8)Requires the CTC to send each private school a monthly list of
all teachers who have had their state teaching credential
revoked or suspended. (Education code 44237)
9)Requires private schools to file an affidavit with the
Superintendent of Public Instruction. (Education code 33191)
10)Requires, whenever any certificated employee of a school
district is charged with a mandatory leave of absence offense,
the governing board of the school district shall immediately
place the employee on compulsory leave of absence; and,
requires, no later than 10 days after receipt of the
complaint, information, or indictment, the school district
shall forward a copy to the Commission on Teacher
Credentialing. (Education code 44940)
FISCAL EFFECT : Unknown
COMMENTS : This bill requires school board members, county
office of education members, and charter school governing body
members and staff to be fingerprinted. The bill requires the
CTC to establish a database of private school teachers who have
been arrested or convicted of a sex offense that would prohibit
employment in a school district; and, requires a private school
to notify the CTC whenever an employee who comes in contact with
students is informed that the employee has been arrested or
charged with those same sex offenses. The bill also requires
the CTC to deny an application or revoke a credential of anyone
convicted of certain child endangerment and child abduction
offenses, regardless of their eligibility for a certificate of
rehabilitation.
Fingerprinting & Background Checks . Several sections of the
Education code currently deal with criminal offenses that
prohibit individuals from being employed by school districts.
Section 45122.1 of the Education code lists specific felonies
and misdemeanors and violent/serious felonies that prohibit
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classified staff from being employed by school districts.
Section 44010 of the Education code lists specified sex offenses
and Section 44011 lists controlled substance offenses. Both
Section 44010 and 44011 are included in Section 44836, which
prohibits anyone convicted of these offenses from being employed
by a school district. Individuals who are convicted of these
offenses, except those that require the applicant to register as
a sex offender, become eligible for school district employment
if they obtain an expungement pursuant to Section 1203.4 of the
Penal Code.
This bill specifies that board members and charter
administrators shall be fingerprinted. The bill does not
specify what happens if those individuals are found to be
convicted of certain offenses. The committee should consider
whether board members and charter administrators who have been
convicted of the sex, drug and violent offenses in Section
44010, 44011 and 45122.1 should be allowed to serve in those
roles.
Charter Schools . Existing law prohibits individuals from being
employed by school districts if they are charged with certain
sex, drug and violent crimes. As drafted, the bill would not
extend these same protections to charter schools employees,
except charter school administrators. Staff recommends the bill
be amended to specify that charter schools must also comply with
existing fingerprinting and employment prohibition laws for all
employees, volunteers and after school activity
supervisors/coaches.
Fingerprinting for Board Members . This bill requires school
district board members, county office of education board members
and charter school governing bodies to be fingerprinted prior to
taking office. It is unclear whether a person running for
election to one of these boards would need to complete the
fingerprint check, or if the fingerprint would not be completed
until after they are elected. If the fingerprint does not occur
until after they are elected, what would happen? Currently
there isn't a mechanism to unseat an elected school board member
for failure to successfully complete a background check.
According to the California Charter Schools Association, who
opposes the bill, "CCSA questions the need for charter school
board members to be cleared in a background check. The
objective of a background check is to protect the students. In
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most cases, a board member does not have contact with students,
so it unclear who this requirement would be protecting. If a
board member is otherwise engaged on the campus, where he or she
may have contact with the students, then there are other
existing and pending criminal background check schemes that
could be used. The law should not duplicate background checks
that will occur anyway nor should it impose a background check
on a person whose sole engagement with the school is on the
board of directors."
The author's intent is to have school board members pass the
same criminal background check as all other district employees,
however, it is unclear if board members have contact with
students in their capacity as a board member. In light of the
fingerprint timeline issues related to the election process,
staff recommends the bill be amended to remove this requirement
from the bill until these concerns are fully addressed.
Private School Information . Private schools must file an
affidavit with the California Department of Education (CDE),
which is used to compile a list of private schools statewide
that is listed on the CDE website. The affidavit does not list
the names of private school teachers, but it does ask schools to
provide the total number and type of individuals employed at the
private school. The author's intent is to link this database of
private schools across the state with the private school teacher
database created by the CTC. It is unclear why linking these
two lists would be necessary.
Private School Database & Reporting . The bill requires the CTC
to maintain a database of teachers employed at private schools
that have been arrested or convicted of sex offenses that
prohibit employment at a public school district. Is it
appropriate to list teacher arrests in this database, when a
conviction does not occur? This would create a higher standard
for private school employees than existing requirements for
public school teachers. How will such a database be used to
protect students? Because private school employees are not
covered by the confidentiality provisions found in Education
code 44230 for credentialed employees the treatment would be
different for private and public schools with respect to
information that could be disclosed to the public. Should
access to the database be limited to private school
administrators, or would this list be accessible to the public?
Will private school teachers have any type of recourse if the
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information in this database is incorrect? It is unclear if
private school teachers will have any sort of due process to
remove their name from this database. Existing law already
requires private school employers to fingerprint employees that
have contact with students and requires the CTC to send regular
updates to private schools notifying them of recent credentialed
teachers who have had their credential revoked or suspended.
The committee should consider how a database will be used and
whether it is needed to further protect private school students,
and whether such a database is best stored by the CTC or some
other agency.
If such a database is created and maintained, the costs
associated with the database will be born on all public school
credential holders. Because private school teachers are not
credentialed, they do not pay credentialing fees that will
financially support this CTC database. Therefore, the costs
will be passed along to credentialed teachers through their
credentialing fees. The committee should consider if this is an
appropriate funding structure.
The bill also requires private schools to notify the CTC when
they have knowledge that one of their employees has been charged
with specified sex offenses. It is unclear how private school
employers would be privy to that type of information. The
California Association of Private School Organization, who
opposes the bill unless amended, argues that district attorneys,
not private schools, should be reporting this information to the
CTC since that information is already in the hands of the law
enforcement agency. The committee should consider, however, how
the district attorney will know that the individual is employed
at a private school, unless the individual volunteers such
information.
One could argue that the list proposed by this bill is somewhat
similar to the Megan's law list of registered sex offenders that
is published on the internet. The committee should consider
whether the CTC is the appropriate place for this list to be
housed and maintained. The committee should also consider
whether appropriate information flow can occur to facilitate the
creation of this list at the CTC. Staff recommends the creation
of the database and the private school reporting sections of
this bill be deleted until these concerns regarding privacy,
funding, due process and information access are fully addressed.
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Mandatory Offenses and Discretionary Review . Several sections
of the Education code currently deal with criminal offenses
requiring revocation of teaching credentials. Section 44424 of
the Education code lists specific felonies and misdemeanors and
violent/serious felonies. Section 44010 of the Education code
lists specified sex offenses and Section 44011 lists controlled
substance offenses. Under current law a conviction of any of
the felonies listed in Section 44424 results in a mandatory
revocation. In some cases such as theft crimes, the Legislature
has specifically limited the revocation to felony thefts. In
others, such as child endangerment, the Legislature has included
both misdemeanors and felonies.
Offenses that do not require mandatory revocation of teaching
credentials receive a discretionary review by the CTC and action
is taken by the Committee of Credentials (COC) based on the
facts and circumstances of the case. According to the CTC, the
discretionary review process begins with a review by the CTC
staff, followed by a review of the COC. After the first review
by the COC, the committee may decide to end the review process
or move the case forward for a formal review by the committee.
At the formal review by the committee, the credential holder may
appear and present their case. After the formal review, the
committee may issue a decision for disciplinary action for the
credential holder and the person has 30 days to accept the
discipline or request an Administrative hearing by an
independent Administrative Law Judge. After the Judge makes a
decision, the Committee of Credentials can either accept that
decision or reject the decision and impose the committee's
disciplinary action.
Child Endangerment, Assault & Abduction . This bill requires the
CTC to deny a credential application or revoke a credential for
individuals convicted of certain child endangerment, assault and
abduction offenses, regardless of whether the individual has
obtained a certificate of rehabilitation and pardon. Under
existing law, if an individual is convicted of a felony offense
of Section 273a, 273ab, or 278 of the Penal Code, it is a
mandatory conviction, and the CTC is required to either deny a
credential applicant or revoke an individual's credential.
Under current law, if the individual successfully completes
probation, they are eligible to have their conviction reduced to
a misdemeanor. If an individual is convicted of a misdemeanor
under one of these sections, or has their felony conviction
reduced to a misdemeanor, the individual is eligible for a
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discretionary review by the COC. This bill would instead
require that a person convicted of one of the felony offenses
listed above to be denied a credential or have their credential
revoked, without the possibility of ever reinstating their
credential. The only other situation where an individual is
permanently barred from holding a teaching credential is if they
are required to register as a sex offender. Therefore, this
bill would essentially require the CTC to treat felony child
endangerment, assault and child abduction offenses the same as
they currently treat registered sex offenders. The committee
should consider whether it is appropriate to permanently ban
individuals convicted of these offenses from holding a teaching
credential, when individuals who are convicted of more serious
offenses like murder and who attain a certificate of
rehabilitation and pardon, will get a discretionary review. For
example, if an individual is convicted of one of these felonies
and is later cleared by DNA or any other type of evidence, under
this bill they would be banned from seeking a discretionary
review despite all charges being dropped against them. The
committee should consider whether it is appropriate to create
this type of inconsistency in the law with regard to different
types of serious offenses. Staff recommends the bill be amended
to delete the lifetime ban on individuals convicted of these
offenses from holding a teaching credential to avoid creating
this type of inconsistency in the law.
Committee Amendments : The recent amendments contained errors
that do not match the author's intent. The author's intent was
to require all charter school employees to be fingerprinted and
to prohibit individuals from working, coaching or volunteering
in charter schools if they would be prohibited from working at a
school district. Staff recommends the bill be amended to
correct this drafting error to create consistency between
charter schools and school districts. The author's intent was
to remove the urgency clause, and staff recommends the bill be
amended to correct this drafting error. Staff recommends
amending the bill to remove the fingerprinting requirement for
school district boards, county office boards and charter school
boards until the election timeline concerns can be addressed.
Staff recommends amending the bill to remove the private school
teacher database and private school reporting requirements from
the bill until the privacy, funding, due process and access to
information concerns can be addressed. Staff recommends the
bill be amended to remove the lifetime ban on individuals with
felony convictions for child endangerment, assault and
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abductions to eliminate the inconsistencies created by these
provisions.
Related legislation : AB 2034 (Knight) from 2010, prohibits
school districts, county offices of education and charter
schools that elect to fingerprint volunteers from allowing
individuals with specific sex, controlled substance or violent
offenses to volunteer in schools; and, requires charter schools
to comply with fingerprinting laws for employees and
supervisors/coaches. This bill is pending hearing in the
Assembly Appropriations Committee.
AB 1698 (Conway) from 2010, pending in the Assembly Rules
Committee, is a spot bill related to the fingerprinting of
student activity coaches and volunteers.
AB 1025 (Conway) Chapter 379, Statutes of 2009, authorizes the
Commission on Teacher Credentialing to issue an Activity
Supervisor Clearance Certificate to allow non-credentialed
individuals, in a paid or volunteer capacity, to supervise,
direct, or coach a pupil activity program.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sherriffs' Association
Crime Victims United of California
Peace Officers Research Association of California
The Child Abuse Prevention Center
Opposition
California Association of Private School Organizations
California Charter Schools Association
California Teachers Association
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087