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NO. 163. AN ACT RELATING TO CRIMINAL RECORD CHECKS OF EDUCATION EMPLOYEES.

(H.475)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 16 V.S.A. chapter 5, subchapter 4 is added to read:

Subchapter 4. Access to Criminal Records

§ 251. POLICY

It is the policy of the state of Vermont to use criminal record checks to deter abuse and exploitation of school children and to do so in a manner that protects, as much as is practicable, the privacy of those subject to such checks.

§ 252. DEFINITIONS

As used in this subchapter:

(1) "Criminal record" means the record of:

(A) convictions in Vermont, and

(B) convictions in other jurisdictions recorded in other state repositories or by the Federal Bureau of Investigation (FBI) for the following crimes or for crimes of an equivalent nature:

(i) Crimes listed in section 13 of Title 13.

(ii) Contributing to juvenile delinquency under section 1301 of Title 13.

(iii) Cruelty to children under section 1304 of Title 13.

(iv) Cruelty by person having custody under section 1305 of Title 13.

(v) Prohibited acts under sections 2632 and 2635 of Title 13.

(vi) Displaying obscene materials to minors under section 2804b of Title 13.

(vii) Sexual exploitation of children under chapter 64 of Title 13.

(viii) Drug sales, including delivery or sale to minors: selling on school grounds, under sections 4230(b), 4231(b), 4232(b), 4233(b), 4234(b), 4235(c) and 4237 of Title 18.

(ix) Sexual activity by a caregiver, under subsection 6913(d) of Title 33.

(2) "School board" means the board of school directors of a school district or its equivalent in any independent school.

(3) "School district" means, unless the context otherwise clearly requires, a school district or a supervisory union.

(4) "Unsupervised" means not in the presence of a responsible adult in the employ of or under the direction of the independent school or school district.

(5) "User agreement" means an agreement between the Vermont criminal information center and a party requesting and receiving criminal record information which requires the party to comply with all federal and state laws, rules, regulations and policies regulating the release of criminal record information and the protection of individual privacy.

§ 253. CONFIDENTIALITY OF RECORDS

Criminal records and criminal record information received under this subchapter are designated confidential unless, under state or federal law or regulation, the record or information may be disclosed to specifically designated persons.

§ 254. EDUCATOR LICENSURE; EMPLOYMENT OF SUPERINTENDENTS

(a) The commissioner shall sign and keep a user agreement with the Vermont criminal information center.

(b) The commissioner shall request and obtain from the Vermont criminal information center the criminal record for any person applying for an initial license as a professional educator or for any person who is offered a position as superintendent of schools in Vermont.

(c) A request made under this section shall be accompanied by a release signed by the person on a form provided by the Vermont criminal information center, a set of the person's fingerprints and a fee established by the Vermont criminal information center which shall reflect the cost of obtaining the record. The fee shall be paid by the applicant.

(d) Upon completion of a criminal record check, the Vermont criminal information center shall send to the commissioner either a notice that no record exists or a copy of the record. The commissioner shall forward a copy of the notice or record received to the person and shall inform the person in writing of:

(1) the right to challenge the accuracy of the record by appealing to the Vermontcriminal information center pursuant to rules adopted by the commissioner of public safety, and

(2) the commissioner's policy regarding maintenance and destruction of records and the person's right to request that the record or notice be maintained for purposes of using it to comply with future criminal record check requests made pursuant to section 256 of this title.

§ 255. PUBLIC AND INDEPENDENT SCHOOL EMPLOYEES; CONTRACTORS

(a) Superintendents, headmasters of recognized or approved Vermont independent schools and their contractors shall request criminal record information for the following:

(1) The person a superintendent or headmaster is prepared to recommend for any full-time, part-time or temporary employment.

(2) Any person directly under contract to an independent school or school district who may have unsupervised contact with school children.

(3) Any employee of a contractor under contract to an independent school or school district in a position that may result in unsupervised contact with school children.

(4) Any student working toward a degree in teaching who is a student teacher in a school within the superintendent's or headmaster's jurisdiction.

(b) After signing a user agreement, a superintendent or a headmaster shall make a request directly to the Vermont criminal information center. A contractor shall make a request through a superintendent or headmaster.

(c) A request made under this section shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center which shall reflect the cost of obtaining the record from the FBI. The fee shall be paid in accordance with adopted school board policy.

(d) Upon completion of a criminal record check, the Vermont criminal information center shall send to the superintendent or headmaster a notice that no record exists or, if a record exists:

(1) a copy of any criminal record for Vermont convictions,

(2) if the requester is a superintendent, a notice of any criminal record which islocated in either another state repository or FBI records, but not a record of the specific convictions except those relating to crimes of a sexual nature involving children, and

(3) if the requester is a headmaster, a notice of any criminal record which is located in either another state repository or FBI records, but not a record of the specific convictions. However, if there is a record relating to any crimes of a sexual nature involving children, the Vermont criminal information center shall send this record to the commissioner who shall notify the headmaster in writing, with a copy to the person about whom the request was made, that the record includes one or more convictions for a crime of a sexual nature involving children.

(e) Information received by a superintendent or headmaster under subsection (d) of this section shall be forwarded as follows:

(1) In the case of a request other than one made on behalf of a contractor, the superintendent or headmaster shall forward a copy of the information to the person about whom the request was made.

(2) In the case of a request made on behalf of a contractor, the superintendent or headmaster shall inform the contractor in writing either that no record exists or that a record does exist but shall not reveal the content of the record to the contractor. The contractor shall then forward a copy of the information received to the person about whom the request was made.

(f) Information sent to a person by the commissioner, a headmaster, a superintendent or a contractor under subsections (d)(3) and (e) of this section shall be accompanied by a written notice of the person's rights under subsection (g) of this section, a description of the policy regarding maintenance and destruction of records, and the person's right to request that the notice of no record or record be maintained for purposes of using it to comply with future criminal record check requests pursuant to section 256 of this title.

(g) Following notice that a record exists, a person may:

(1) Sign a form authorizing the Vermont criminal information center to release a detailed copy of the criminal record to a superintendent or to the person.

(2) Challenge the accuracy of the record by appealing to the Vermont criminalinformation center pursuant to rules adopted by the commissioner of public safety.

(3) Decline or resign employment.

§ 256. CONTINUED VALIDITY OF CRIMINAL RECORD CHECK;

MAINTENANCE OF RECORDS

(a) Anyone required to request a criminal record check under this subchapter about a person who previously has undergone a check, regardless of whether the check was for student teaching, licensure or employment purposes, shall comply with that requirement by acquiring the results of the previous criminal record check unless:

(1) the person refuses to authorize release of the information,

(2) the record no longer exists, or

(3) since the record check, there has been a period of one year or more during which the person has not worked for a Vermont school district or independent school.

(b) A superintendent or headmaster who receives criminal record information under this subchapter shall maintain the record or information pursuant to the user agreement for maintenance of records. At the end of the time required by the user agreement for maintenance of the information, the superintendent or headmaster shall destroy the information in accordance with the user agreement unless the person authorizes maintenance of the record. If authorized by the person, the superintendent or headmaster shall:

(1) if the information is a notice of no criminal record, securely maintain the information indefinitely, or

(2) if the information is a criminal record or notice of the existence of a criminal record, send it to the commissioner for secure maintenance in a central records repository.

(c) Upon authorization by the person, the commissioner shall release information maintained in the central records repository to a requesting superintendent or, in the case of a requesting headmaster, to the person. The commissioner shall maintain the notice or record in the repository at least until the person ceases working for a Vermont school district or independent school for a period of one year or more or until the person requests that the record be destroyed.

(d) The state board may adopt rules regarding maintenance of records.

§ 257. FEES FOR FINGERPRINTING; FINGERPRINT FEE SPECIAL FUND

State, county and municipal law enforcement agencies may charge a fee of up to $15.00 for providing applicants or other individuals with a set of classifiable fingerprints as required by this subchapter. No fee shall be charged to retake fingerprints determined by the Vermont criminal information center not to be classifiable. Fees collected by the state of Vermont under this section shall be credited to the fingerprint fee special fund established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5, and shall be available to the department of public safety to offset the costs of providing these services.

§ 258. NOTICE; LICENSE APPLICATIONS; JOB APPLICATIONS; EMPLOYEES

(a) Each application for an initial teaching license shall contain a statement that the applicant will be required to undergo a criminal record check, including an FBI fingerprint record check, and that receipt of the license may be dependent upon the results of the check.

(b) Each job application provided by a school district or independent school shall contain a statement that, if the superintendent or headmaster is prepared to recommend the person for a job, the applicant will be required to undergo a criminal record check, including an FBI fingerprint record check, and that employment may be dependent upon the results of the check.

§ 259. PENALTIES; REMEDY

(a) A person who, without authorization, discloses criminal record check information received under this subchapter shall be fined not more than $2,000.00. Each unauthorized disclosure shall constitute a separate violation.

(b) A person who suffers damages as a result of wilful unauthorized disclosure of criminal record check information received under this subchapter may recover those damages together with reasonable attorney's fees in a civil action.

(c) In addition to any other penalties described in this section, the commissioner may initiate a review of the professional licensure of any person who wilfully discloses criminal record check information received under this subchapter.

§ 260. SCHOOL BOARD POLICIES

Each school board shall, by July 1, 1999, adopt a policy on supervision of volunteers and work study students.

Sec. 2. 20 V.S.A. § 2060 is amended to read:

§ 2060. RELEASE OF RECORDS

The center is authorized to release records or information requested under section 309 or 6914 of Title 33, section 4010 of Title 24, or *[section 214]* chapter 5, subchapter 4 of Title 16.

Sec. 3. MODEL POLICIES; GUIDELINES

(a) The state board of education, in collaboration with education associations, shall develop and make available to school boards a model policy regarding supervision of volunteers and work study students.

(b) The state board of education, in collaboration with education associations, shall develop guidelines for school boards on appropriate questions regarding criminal records to ask prospective employees on employment applications.

(c) The state board of education, in consultation with the Vermont criminal information center, shall develop guidelines regarding maintenance of criminal record check information, a criminal history log, and records relating to requests for criminal records by superintendents and headmasters.

Sec. 4. GRANDFATHER PROVISIONS

Any person employed by a school district or independent school on passage of this act shall not be subject to the provisions of this act. However, if the individual does not work for a Vermont school district or independent school for a continuous period of one year or more, the person shall become subject to the provisions of this act.

Sec. 5. REPEAL

16 V.S.A. § 214, relating to access to criminal records, is repealed.

Sec. 6. REPEAL

15A V.S.A. § 1-113(h), relating to waiver of fingerprinting requirement for adoption, is repealed.

Sec. 7. 15A V.S.A. § 2-201(c) is amended to read:

(c) A court may waive all or a portion of the requirement of a preplacement evaluation for good cause shown, but a person who is the subject of a waiver shall be evaluated during the pendency of a proceeding for adoption.

Sec. 8. EFFECTIVE DATE

This act shall take effect on July 1, 1998. However, superintendents and headmasters who have not requested an FBI fingerprint record check prior to passage of this act shall not be required to do so under this act until January 1, 1999.

Became Law Without Governor's Signature.