TITLE 11

Crimes and Criminal Procedure

Law-Enforcement Administration

CHAPTER 85. STATE BUREAU OF IDENTIFICATION

Subchapter VI. Criminal Background Check for Public School Related Employment


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 this State.

(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 paragraph (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 title while employed in the same district.

a. The phrase "any person who for any reason has regular direct access to children'' in paragraph (3) above applies only to persons who are employed, either directly or through a contract, to work at any facility referred to in paragraph (4) of this section, except that it shall apply to any person who fills an Extra Pay for Extra Responsibility ("EPER'') or extra duty position, whether the person receives compensation or not.

b. This definition shall not apply to substitute food service workers, directly supervised professional artists sponsored by the Division of the Arts, Arts in Education Program; Very Special Arts; and/or the Delaware Institute for the Arts in Education, instructors in prison programs, Apprenticeship/Trade Extension programs or avocational general interest Adult Education programs or instructors in Adult Basic Education or GED programs who do not serve students under age 18.

(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. For the purposes of subchapter VI of this chapter only, the phrase, "person seeking employment with a public school'' shall include employees of the Department of Education.

69 Del. Laws, c. 144, § 4; 70 Del. Laws, c. 170, §§ 1, 2; 73 Del. Laws, c. 65, § 10.;

(a) Any person seeking employment with a public school shall be required to submit 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 92-544 [28 U.S.C. § 534]. 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, and one person in each public school, as defined in § 8570(4) of this title, who shall be designated to assist in the processing of criminal background checks, receive training in confidentiality and be required to sign an agreement to keep such information confidential. 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. Notwithstanding the foregoing, public schools may use funds other than state funds to pay for criminal background check costs and may enter into consortia of school districts to pay such costs for persons covered by this act who work in more than 1 school district during the course of a year.

(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 or in similar laws of any other jurisdiction;

(2) Conviction of any felony in this State or any other jurisdiction in the last 5 years; or

(3) 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) A person who is employed in a health care facility or child care facility or public school has an affirmative duty to inform, and shall inform, that person's own employer of any criminal conviction or of any entry on the Child Protection Registry established pursuant to Chapter 9 of Title 16.

(h) The State Department 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

(3) Establishment of a procedure to provide confidentiality of information obtained pursuant to subsection (a) of this section and of the determination of suitability for employment.

69 Del. Laws, c. 144, § 4; 70 Del. Laws, c. 170, §§ 3-5; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 65, § 11; 73 Del. Laws, c. 412, § 20.;

Any person seeking a license under Chapter 12 of Title 14 or 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 title shall be guilty of a class G felony and shall be punished according to Chapter 42 of this title.

69 Del. Laws, c. 144, § 4; 72 Del. Laws, c. 294, § 5.;