Meeting of the Board of Regents | July 2007

THE  STATE  EDUCATION  DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Proposed Amendment to the Regulations of the Commissioner of Education Relating to the Fingerprinting and Criminal History Record Check for Prospective Employees of Nonpublic and Private Elementary and Secondary Schools
DATE:	July 11, 2007
STRATEGIC GOAL:	Goal 3
AUTHORIZATION(S):

 

SUMMARY

 

Issue for Decision

              Should the Board of Regents amend Sections 80-1.11, 87.1, 87.2, 87.4, 87.5, 87.6, 87.8 and add Section 87.10 to the Regulations of the Commissioner of Education relating to the fingerprinting and criminal history record check of prospective employees of nonpublic and private elementary and secondary schools? 

 

Proposed Handling

 

The proposed amendment is submitted for adoption as a permanent rule.

 

The Board of Regents adopted this amendment as an emergency measure at its May 2007 meeting.  A Notice of Emergency Adoption was published in the State Register on May 29, 2007.  A Notice of Proposed Rule Making was published in the State Register on May 16, 2007.  An Assessment of Public Comment is attached.  Supporting materials for the proposed amendment are available upon request from the Board of Regents. 

 

 

 

 

Background Information

 

Chapter 630 of the Laws of 2006 authorizes a nonpublic or private elementary or secondary school to require prospective school employees to be fingerprinted and cleared for employment by the Department, in the same manner as previously prescribed for employees of public schools, charter schools and boards of educational cooperative services pursuant to Chapter 180 of the Laws of 2000 and previously implemented in Part 87 of the Regulations of the Commissioner of Education.

 

In order to conform with the new requirements set forth in Chapter 630 of the Laws of 2006, the proposed amendment revises the definitions in Part 87 for clearance for employment, conditional appointment, conditional clearance for employment and covered school to permit nonpublic and private schools to seek such clearances and appointments from the Department beginning July 1, 2007.  The proposed amendment also authorizes nonpublic or private elementary or secondary schools to become a designated fingerprinting entity if they choose to fingerprint prospective school employees. 

 

The proposed amendment further clarifies that the fingerprinting and criminal history record check requirements under Part 87 apply to all prospective school employees appointed to compensated positions in a nonpublic or private elementary school that elects to fingerprint and seek clearance from the Department for prospective employees on or after July 1, 2007. 

 

The amendment also authorizes the Department to consider the criminal history record and any related information obtained by the Department pursuant to such review, when the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge. 

 

The proposed amendment also provides additional technical changes to the due process requirements of Part 87 to reflect the change in title of the executive director of the Office of Teaching Initiatives to the Assistant Commissioner of the Office of Teaching Initiatives.  The amendment also clarifies that the Department will accept a credit card for the fee charged for a criminal history information request, in order to conform with current practice.

 

In order to implement the requirements of Chapter 630 of the Laws of 2006, the proposed amendment also requires that beginning July 1, 2007, any nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance from the Department for prospective employees shall notify the Assistant Commissioner of the Office of Teaching Initiatives, or his designee, on forms provided by the Department of its intent to seek clearance from the Department through the Department’s TEACH online services system. 

 

The proposed amendment further clarifies that any nonpublic or private elementary or secondary school that elects to submit requests for criminal history record review to the Department for prospective employees shall do so with respect to each such prospective employee and shall develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency appointment.

 

Recommendation

 

              I recommend that the Board of Regents take the following action:

 

              VOTED:  That Sections 80-1.11, 87.1, 87.2, 87.4, 87.5, 87.6 and 87.8 be amended and Section 87.10 of the Regulations of the Commissioner of Education be added, as submitted, effective August 16, 2007.

 

Timetable for Implementation

 

The effective date of the proposed amendment is August 16, 2007.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to Sections 207, 305, 3001-d and 3035 of the Education Law.

              1.  Section 80-1.11 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

              All candidates who apply on or after July 1, 2001 for certification as a superintendent of schools, teacher, administrator or supervisor, teaching assistant, or in any other title for which a teaching or administrative license or certificate is required pursuant to this Part, shall meet the requirements of Part 87 of this Title for a criminal history record check, [except for individuals who apply for a permanent certificate and hold a valid provisional certificate, applied for prior to July 1, 2001, in the same title for which the permanent certificate is sought, and] except that the requirements of Part 87 of this Title for a criminal history check shall not be applicable for an individual to qualify for a temporary license, pursuant to section 80-5.10 of this Part, for employment by the City School District of the City of New York, provided that such individual has not been cleared for employment by such school district after fingerprinting and a criminal history record check, pursuant to section 2590-h(20) of the Education Law. 

2.  Section 87.1 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

              §87.1  Purpose.

              The purpose of this Part is to set forth requirements and procedures for the fingerprinting and the State Education Department’s criminal history record check of prospective school employees for service in covered schools, as defined in section 87.2 of this Part, and applicants for certification for service in the public schools of New York State in order to determine whether such individuals shall be granted a clearance for employment and/or certification by the State Education Department.   

              3.  Section 87.2 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

              §87.2 Definitions.

              As used in this part:

(a)  Clearance for certification means a determination by the department that based upon its review of an applicant’s criminal history record such individual may be certified or licensed for service [in the public schools of New York State] by the Commissioner, pursuant to Part 80 of this Title, provided that all other requirements for certification or licensure are met. 

(b)  Clearance for employment means a determination by the department that based upon its review of a prospective school employee’s criminal history record, such individual may be employed in a [board of cooperative educational services, charter school, or school district in New York State] covered school as defined in this section, provided that all other requirements for employment are met.

(c)  Conditional appointment means an appointment by a covered school in accordance with the requirements of section 1604(39), 1709(39), 1804(9), 1950(4)(ll), 2503(18), 2554(25), [or] 2854(3)(a-2), or 3001-d(3) of the Education Law. 

 (d)  Conditional clearance for employment means a determination by the department that based upon its review of a prospective school employee’s criminal history record obtained from DCJS for a prospective school employee, such individual may be employed by a [board of cooperative educational services, charter school, or school district in New York State] covered school as defined in this section on a conditional appointment, provided that all other requirements for employment are met. 

 (e) Covered school means a board of cooperative educational services, a charter school, [or] a school district, or any nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance for prospective employees from the department beginning July 1, 2007, geographically located in New York State, excluding the City School District of the City of New York.

(f) . . .

(g) . . .

(h) . . .

 (i)  Designated fingerprinting entity means one of the following types of entities:  school districts, boards of cooperative educational services, charter schools, nonpublic or private elementary or secondary schools that elect to fingerprint and seek clearance from the department for prospective employees beginning July 1, 2007, State and local criminal justice agencies, institutions of higher education, and other entities as designated by the department.   

(j)   Emergency conditional appointment means an appointment by a covered school when an unforeseen emergency vacancy has occurred, in accordance with the requirements of section 1604(39), 1709(39), 1804(9), 1950(4)(ll), 2503(18), 2554(25), [or] 2854(3)(a-2), or 3001-d(3) of the Education Law.

(k) . . .

(l)  . . .

4.  Section 87.4 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

§87.4 Requirements for covered schools and prospective school employees.

The requirements of this section shall apply to all prospective school employees, as defined in section 87.2 of this Part, appointed to compensated positions in [the covered school] a board of cooperative educational services, charter school or school district by official action of the governing body of such covered school on or after July 1, 2001.  The requirements of this section shall also apply to all prospective school employees appointed to compensated positions in a nonpublic or private elementary or secondary school on or after July 1, 2007, if such school elects to fingerprint and seek clearance for prospective employees from the department.   The requirements of this section shall not apply to prospective school employees, as defined in section 87.2 of this Part, appointed to compensated positions in [the covered school] a board of cooperative educational services, charter school or school district by official action of the governing body of [the] such covered school prior to July 1, 2001, notwithstanding the fact that such prospective school employees are not required to provide services until on or after July 1, 2001.  These requirements shall also not apply to prospective school employees, as defined in section 87.2 of this Part, appointed to compensated positions in a nonpublic or private elementary or secondary school by official action of the governing body of such covered school prior to July 1, 2007, notwithstanding the fact that such prospective school employees are not required to provide services until on or after July 1, 2007.  The requirements of this section shall apply to all prospective school employees, as defined in section 87.2 of this Part, who commence providing services at [the covered school] a board of cooperative educational services, charter school or school district on or after July 1, 2001, or in a nonpublic or private elementary or secondary school on or after July 1, 2007, when such prospective school employees are:  employees of a provider of contracted services to the covered school, or workers who are placed within the covered school under a public assistance employment program pursuant to title 9-B of article V of the Social Services Law, directly or through contract, or in compensated positions at the covered school not appointed by official action of the governing body of such covered school.

(a)  Requirements for covered schools. 

(1) . . .

(2) Except as provided in section 87.9(d) of this Part, covered schools shall require [a] all prospective school [employee] employees who [is] are not in the SED criminal history file to be fingerprinted for purposes of a criminal history record check by authorized personnel of a designated fingerprinting entity.  In such cases, either the covered school or prospective school employee shall cause the designated fingerprinting entity to transmit [two sets] a sufficient number of [completed fingerprint cards] fingerprints to the department for the purpose of a criminal history record check and clearance for employment along with the consent form and the fee required by section 87.8 of this Part.

(3) . . .

(4) . . .

(5) [Covered schools shall notify the department on forms or an equivalent manner as prescribed by the department of the name and other identifying information of a prospective school employee who has commenced employment with or began providing services for the covered school, the date of the commencement of such employment or service and the position held by such individual.

(6)]  . . .

(b)  Requirements for prospective school employees. 

(1)  Except as provided in section 87.9 (d) of this Part, where the prospective school employee is not already in the SED criminal history file, the prospective school employee shall:

(i)  . . .

(ii)  be fingerprinted for purposes of a criminal history record check by authorized personnel of a designated fingerprinting entity. In such cases, either the prospective school employee or the covered school shall cause the designated fingerprinting entity to transmit [two sets] a sufficient number of [completed fingerprint cards] fingerprints to the department for the purpose of a criminal history record check and clearance for employment along with the consent form and the fee required by section 87.8 of this Part.

(2)  . . .

(3)  Where the prospective school employee is already in the SED criminal history file, the prospective school employee shall notify the covered school of this fact.  [In such cases, the covered school shall request a clearance for employment on forms or an equivalent manner prescribed by the department. The prospective school employee may also request a conditional clearance for employment for the purposes of meeting the requirements for a conditional appointment upon a form prescribed by the department, which shall be completed and signed by the prospective school employee. No fee shall be payable to the department for such request for clearance. No fee shall be payable to the department for such request for clearance.]

(c)  . . .

5.  Section 87.5 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows: 

§ 87.5  Due process procedures. 

(a)  Procedures for clearance for employment. 

(1)  . . .

(2)  . . .

(3)  . . .

(4)  Initial notification and department determination.  

(i)  Where the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge, the department shall review such record and any related information obtained by the department pursuant to the review of such criminal history record, if any, and apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such review shall be conducted in accordance with section 296(16) of the Executive Law.

(ii)  . . .

(iii)  . . .

(iv)  . . .

(v)  . . .

(vi)  . . .

(vii)  . . .

(viii)  Where the prospective school employee submits a response within the timeframe prescribed in subparagraph (vi) of this paragraph, the department shall, upon review of the prospective school employee's criminal history record, related information obtained by the department pursuant to the review of such criminal history record, and information and written argument provided by the prospective school employee in his or response, make a determination on whether clearance for employment shall be granted or denied. In such review, the department shall apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such review shall be conducted in accordance with the requirements of section 296(16) of the Executive Law. Where the department's determination is that clearance for employment is denied, the decision shall include the basis for such determination, and shall state that the prospective employee may appeal the department's determination to the [executive director] assistant commissioner of the Office of Teaching Initiatives of the State Education Department at the address specified in the determination, in accordance with paragraph (5) of this subdivision, and shall include instructions for such an appeal. A copy of the determination that clearance for employment is denied, or notice that such clearance is granted, as the case may be, shall be transmitted to the prospective school employee. Where clearance for employment is denied, such determination shall be sent to the prospective school employee by certified mail, return receipt requested. Where clearance for employment is granted, such determination shall be sent to the prospective school employee by regular first class mail. Where clearance for employment is denied and the prospective school employee also requested conditional clearance for employment, such determination shall also deny the conditional clearance for employment. Where clearance for employment is denied and the prospective school employee has already been granted conditional clearance for employment, such determination shall also terminate the conditional clearance for employment. In addition, the covered school shall be notified of the denial or granting of clearance.

(ix) . . .

(5)  Appeal of department's determination. 

(i)  A prospective school employee who was denied clearance for employment by a determination of the department pursuant to paragraph (4) of this subdivision, may appeal that determination to the [executive director] assistant commissioner of the Office of Teaching Initiatives of the State Education Department, provided that such appeal is mailed by regular first class mail or certified mail or is hand delivered to the address specified in the department's determination within 25 calendar days of the mailing of such determination denying clearance. Such appeal shall be heard by the [executive director] assistant commissioner of the Office of Teaching Initiatives or a State review officer designated by the [executive director] assistant commissioner who did not participate in the department's determination.

(ii)  . . .

(iii)  Such appeal papers, submitted within the timeframes prescribed in subparagraph (i) or (ii) of this paragraph, may include any affidavits or other relevant written information and written argument which the prospective school employee wishes the [executive director] assistant commissioner, or a State review officer designated by the [executive director] assistant commissioner, to consider in support of the position that clearance for employment should be granted, including, where applicable, information in regard to his or her good conduct and rehabilitation. The prospective school employee may request oral argument and must do so in the appeal papers submitted within the timeframes prescribed in subparagraph (i) or (ii) of this paragraph. Such oral argument shall be conducted in accordance with the requirements of subparagraph (iv) of this paragraph.

(iv)  A prospective school employee may request oral argument as part of the appeal of the department's determination denying clearance for employment. The department shall notify the prospective school employee of the time and location of such oral argument. Such argument shall be heard before the [executive director] assistant commissioner, or a State review officer designated by the [executive director] assistant commissioner. At the oral argument, the prospective school employee may present additional affidavits or other relevant written information and written argument which the prospective school employee wishes the [executive director] assistant commissioner, or the State review officer designated by the [executive director] assistant commissioner, to consider in support of the position that clearance for employment should be granted, including, where applicable, written information in regard to his or her good conduct and rehabilitation. No testimony shall be taken at the oral argument and no transcript of oral argument shall be made. The prospective school employee may make an audio tape recording of the oral argument. However, such audio tape recording or transcript thereof shall not be part of the record upon which the [executive director] assistant commissioner or a State review officer designated by the [executive director] assistant commissioner  makes the determination on whether clearance for employment shall be granted or denied.

(v)  Where a timely request for an appeal is received, upon review of the prospective school employee's criminal history record, related written information obtained by the department pursuant to the review of such criminal history record, written information and written argument submitted by the prospective school employee in this appeal within the timeframes prescribed in subparagraph (i) or (ii) of this paragraph, and written information provided at oral argument if requested by the prospective school employee, the [executive director] assistant commissioner of the Office of Teaching Initiatives or a State review officer designated by the [executive director] assistant commissioner who did not participate in the department's determination, shall make a determination of whether clearance for employment shall be granted or denied. In such appeal, the [executive director] assistant commissioner or his or her designee shall apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such appeal shall be conducted in accordance with the requirements of section 296(16) of the Executive Law. Where the determination of the [executive director] assistant commissioner, or his or her designee, is that clearance for employment is denied, his or her decision shall include the findings of facts and conclusions of law upon which the determination is based. A copy of the determination that clearance for employment is denied, or notice that such clearance is granted, as the case may be, shall be transmitted to the prospective school employee by regular first class mail. In addition, the covered school shall be notified of the denial or granting of clearance.

(b)  Procedures for clearance for certification.  Where the criminal history record reveals conviction of a crime, or an arrest for a crime, the department shall transmit the criminal history record and related information to the department's [executive director] assistant commissioner of the Office of Teaching Initiatives for a determination of good moral character pursuant to Part 83 of this Title, which procedure shall determine the clearance for certification.

6.  Section 87.6 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

§87.6  Procedures for subsequent criminal history notifications. 

(a)  . . .

(b)  For applicants for or holders of certification pursuant to Part 80 of this Title, for whom subsequent criminal history notifications reveal an arrest for a crime, the department shall transmit such information to the department's [executive director] assistant commissioner of the Office of Teaching Initiatives for a determination of good moral character pursuant to Part 83 of this Title.

7.  Section 87.8 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

§87.8  Fees. 

(a)  The fee for the criminal history record search prescribed in sections 87.3 and 87.4 of this Part shall be in an amount equal to the fees established, pursuant to law, by DCJS and the Federal Bureau of Investigation for processing the criminal history information request. The fee shall be payable to the New York State Education Department and paid by money order or check of a covered school or check from a provider of contracted services to a covered school or a certified check or by credit card.

(b)  . . .

(c) . . .

(d)  . . .

(1) . . .

(2)  A prospective school employee may submit a request to the governing body of [a school district] the covered school, on a form prescribed by the department, that the fees imposed for conducting a criminal history records check be waived and paid by the governing body instead. The governing body of the [school district] covered school may grant such a request if the governing body determines that payment of such a fee would impose an unreasonable financial hardship on the applicant or his or her family and upon such determination the governing body shall pay the fee on behalf of the prospective school employee.

8.  Section 87.10 of the Regulations of the Commissioner of Education is added, effective July 1, 2007, as follows:

87.10  Special requirements for nonpublic or private elementary or secondary schools that elect to fingerprint and seek clearance from the department for prospective employees beginning July 1, 2007.

(1)  Beginning July 1, 2007, any nonpublic or private elementary or secondary school that elects to submit to the department requests for criminal history record review for prospective employees shall notify the assistant commissioner of the Office of Teaching Initiatives, or his designee, on forms to be provided by the department of its intent to elect to fingerprint and seek clearance from the department for prospective employees through the department’s TEACH online services system.  Upon receipt of such election form, the assistant commissioner shall begin accepting fingerprints for prospective employees of that nonpublic or private elementary or secondary school for the purpose of clearance of employment.  

 (2)  Any nonpublic or private elementary or secondary school that elects to submit requests for criminal history record review to the department for prospective employees shall do so with respect to each such prospective employee, in accordance with section 3001-d of the Education Law.

(3)  Any nonpublic or private elementary school that elects to submit requests for criminal history record review to the department shall also develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency conditional appointment.