CHAPTER 144

FORMERLY

SENATE BILL NO. 210

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 85, TITLE 11 OF THE DELAWARE CODE RELATING TO CRIMINAL BACKGROUND CHECKS FOR PUBLIC SCHOOL RELATED EMPLOYMENT.

WHEREAS, child sexual abuse is a large and underreported problem; and

WHEREAS, child sex offenders are often serial offenders who seek legitimate access to children; and

WHEREAS, public school related employment can provide such access to children; and

WHEREAS, it is essential that public school officials have a reliable procedure for screening persons seeking school related employment for convictions of child sex abuse or other serious offenses which should disqualify such persons from school employment.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §8560, Subchapter V, Chapter 85, Title 11 of the Delaware Code by striking §8560(2) in its entirety and substituting in lieu thereof the following:

"(2) 'Child care provider' means any child care facility which by law is required to be licensed or any facility registered and eligible for Federal Child Care Development Block Grant funds."

Section 2. Amend §8560(5), Subchapter V, Chapter 85, Title 11 of the Delaware Code by striking the phrase ", including substitute teachers" where said phrase appears at the end of §8560(5).

Section 3. Amend §8561(b), Subchapter V, Chapter 85, Title 11 of the Delaware Code by striking the phrase "; and/or" where said phrase appears at the end of §8561(b)(3) and substituting in lieu thereof a period "." , and by striking §8561(b)(4) in its entirety.

Section 4. Amend Chapter 85, Title 11 of the Delaware Code by adding a new Subchapter VI to read as follows:

"SUBCHAPTER VI. CRIMINAL BACKGROUND CHECK FOR PUBLIC SCHOOL RELATED

EMPLOYMENT.

§8570. Definitions.

The following words, terms and phrases, when used in this subchapter, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) 'Children' means persons who are enrolled in public schools in the Sate of Delaware.

(2) 'Child sex abuse' shall have the meaning prescribed by §8550(2) of this Title.

(3) 'Person seeking employment with a public school' means any person seeking employment for compensation with a public school or agency that supplies contracted services directly to students of a public school or any person who for any reason has regular direct access to children at any facility referred to in subsection (4) of this section, including substitute teachers; provided, however, that any person who has been continuously employed in a public school district or by an agency that supplies contracted services directly to students in Delaware shall be exempt from the screening provisions of §8571 of this subchapter while employed in the same district.

(4) 'Public school' means any public school and includes any board of education, school district, reorganized school district, special school district, and any person acting as an agent thereof.

§8571. Screening Procedure required.

(a) Any person seeking employment with a public school shall be required to submit his or her fingerprints and other necessary information in order to obtain the following:

(1) Report of the Individual's entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Bureau of Identification Central Repository contains no such information relating to that person.

(2) A report of the individual's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 42-544. The State Bureau of Identification shall be the intermediary for the purposes of this section and the public school shall be the screening point for the receipt of said federal criminal history records.

(b) All information obtained pursuant to subsection (a) of this section shall be forwarded to the public school which will assess the information and make a determination of suitability for employment. The person seeking employment shall be provided with a copy of all information forwarded to the public school pursuant to this subsection. Information obtained under this subsection is confidential and may only be disclosed to the chief school officer and the chief personnel officer of the public school. The State Bureau of Identification may release any subsequent criminal history to the public school.

(c) Costs associated with obtaining criminal history information and child sex abuse repository information shall be paid by the person seeking employment; provided, however, that subject to a specific annual appropriation in the Annual Appropriations Act, costs associated with obtaining criminal history information and child sex abuse repository information may be paid by the State.

(d) A person seeking employment shall have an opportunity to respond to the public school regarding any information obtained pursuant to subsection (b) of this section prior to a determination of suitability for employment being made. The determination of suitability for employment shall be based upon the type of offenses, if any; the length of time since any offenses; record since any offenses; and responsibilities of the position which the person is seeking; provided that a person seeking employment with a public school may be disqualified from employment for any of the following reasons:

(1) Conviction of manufacture, delivery or possession, or possession with intent to deliver a controlled substance, or a counterfeit controlled substance classified in Chapter 47 of Title 16 of the Delaware Code or in similar laws of any other jurisdiction;

(1) Conviction of any felony in this State or any other jurisdiction in the last five years; or

(1) Conviction of any crime against a child in this State or any other jurisdiction.

(e) Upon making its determination of suitability, the public school shall forward the determination to the person seeking employment. If a determination is made to deny the person from employment based upon the criminal history of the person, the person shall have an opportunity to appeal to the chief school officer or designee for reconsideration.

(f) A public school may conditionally hire a person seeking employment, pending the determination of suitability for employment. If the information obtained from the criminal background check reveals that the person is disqualified from employment pursuant to subsection (d) of this section, the person may not continue in employment and is subject to termination.

(g) Any person seeking employment with a public school who has submitted to a criminal background check in this or any other state within the previous twelve (12) months shall not be required to submit to another criminal background check, provided, however, that the person submits (1) the results of such previous background check, including any previous federal criminal background check, and (2) a reference from the most recent employer, if any, covering the previous twelve (12) months.

(h) The State Board of Education shall, in the manner provided by law, promulgate regulations necessary to implement this subchapter. These regulations shall include:

(1) Establishment, in conjunction with the State Bureau of Identification, of a procedure for fingerprinting persons seeking employment with a public school and providing the reports and certificate obtained pursuant to subsection (a) of this section;

(2) Establishment of a procedure for reconsideration of a determination to deny employment based upon a person's criminal history; and

(1) Establishment of a procedure to provide confidentiality of information obtained pursuant to subsection (a) and of the determination of suitability from employment.

§8572. Penalties.

Any person seeking employment with a public school who knowingly provides false, incomplete or inaccurate criminal history information or who otherwise knowingly violates the provisions of §8571 of this subchapter shall be guilty of a Class G felony and shall be punished according to Chapter 42 of this title."

Section 5. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Section 6. This Act shall become effective upon its enactment into law; provided, however, that the application of the provisions of this Act to any person or circumstance shall be permissive until July 1, 1994; further provided, however, that on and after July 1, 1994, the application of the provisions of this Act to any person or circumstance shall be mandatory.

Approved July 14, 1993.