Effective July 1, 2016, local or regional boards of education, governing councils of state or local charter schools and inter-district magnet school operators (collectively “BOEs”), are going to have to follow new requirements for hiring education personnel. The state legislature recently enacted Public Act 16-67 (“the Act”) in response to a new provision in the federal Every Student Succeeds Act (“ESSA”). The new ESSA provision, entitled “Prohibition on Aiding and Abetting Sexual Abuse”, is aimed at preventing school employees who have engaged in sexual misconduct with students from being passed from one school district to another, by requiring states, state educational agencies and local school districts that receive federal funding to establish laws, regulations and policies that prevent employment of school personnel where there is reason to believe that person has previously engaged in sexual misconduct with a student or minor.
Who is impacted by the new requirements?
The Act has broad application and seeks to identify potential predators earlier in the hiring process. Significantly, the Act applies to applicants, rather than those offered employment, and prohibits the employment of any applicant who fails to meet the new requirements. The Act makes no distinction between certified and non-certified personnel, but instead applies to all “applicants for a position, including any position which is contracted for, if such applicant would have direct student contact”. “Direct student contact” is not defined by the Act, but positions with direct student contact would include teachers, administrators, paraprofessionals, behavioral therapists, coaches, food service workers, custodians, clerical/administrative support staff in the schools, and school nurses. There are specific provisions for temporary positions (less than 90 days), substitute teachers and contractors, but even applicants for these positions must comply with the requirements for criminal and employment background checks. Student employees remain excluded from the requirement of a criminal background check under Conn. Gen. Stat. §10-221d.
What is required under the Act?
The Act imposes significant changes on existing laws regarding hiring of education personnel, specifically impacting Conn. Gen. Stat. §§ 10-221d (criminal and child abuse registry background checks), 10-222c (hiring policy) and 10-145 (substitute teachers).
The Applicant must
- Submit to state and national criminal history and child abuse and neglect registry records checks;
- List all former educational employers or other employment where they had direct contact with children;
- Provide an authorization for release of information by former employers and the State Department of Education (SDE);
- State whether they have been the subject of an abuse, neglect or sexual misconduct investigation unless the finding was unsubstantiated; ever disciplined, asked to resign, separated from employment where there were pending allegations, substantiated charges or a criminal conviction regarding child abuse, neglect or sexual misconduct, or surrendered or had their certification or license revoked.
The BOE must
- Conduct a review of an applicant’s employment history, using a standard SDE form;
- Make good faith effort to contact former employers. “Good faith” is defined as three attempts via telephone on three separate days;
- Request SDE eligibility status for any applicant for a position requiring certification, authorization or permit;
- Notify the SDE of any information it receives that an applicant has been disciplined for a finding of abuse, neglect or sexual misconduct;
- Not enter into any collective bargaining agreement, employment contract, agreement for resignation or termination, service agreement or any other contract or agreement, or take any action which would
- Have the effect of suppressing information relative to investigation of a report of suspected abuse, neglect or sexual misconduct by a current or former employee;
- Affect their ability to report suspected or substantiated abuse, neglect or sexual misconduct; or
- Require them to expunge information regarding allegations of finding of abuse, neglect or sexual misconduct, unless ‘dismissed or found to be false”;
- Not hire any applicant who was previously terminated or resigned from employment if such person has been convicted of a violation of section 17a-101a (mandatory reporting statute) when an allegation of abuse or neglect or sexual misconduct has been substantiated; and
- Upon request, provide information to any other BOE regarding any information it has concerning a finding of abuse, neglect or sexual misconduct.
Requirements for Temporary Employees
The BOE may employ an applicant for a position on a temporary basis of less than 90 days pending review of the information received relative to the above requirements, if: (1) the applicant has complied with requirements above; (2) the BOE has no knowledge that the applicant would be disqualified; and (3) the applicant affirms that they would not be disqualified.
Requirements for Substitute Teachers
The BOE cannot offer employment to applicants for substitute teacher positions unless the applicant complies with above requirements. BOE shall maintain a list of eligible employees and cannot employ a substitute teacher if that individual is not on the list. The substitute teacher shall remain on the list as long as there is no information regarding suspected abuse, neglect or sexual misconduct.
Requirements for Contractors
An applicant who is a contractor shall require any employee with that contractor, who would be in a position involving direct contact with students, to supply the contractor with all information required of an applicant as outlined above and written authorization to contact former employers. The contractor shall do an employment history review as provided above for applicants and must immediately provide any pertinent information to BOE, who will then determine if the contractor’s employee works in position involving direct student contact.
Are there protections for former employers making disclosures of information regarding an applicant?
Yes, the Act provides that any employer who provides the required information reading an applicant shall be immune from criminal and civil liability, provided the employer did not knowingly supply false information. .
Penalties
Any applicant who knowingly provides false information may be disciplined, including denial of employment or termination of contract of employment of certified employee.
The role of the State Department of Education
The SDE is required to disclose, upon request by a BOE, (1) an applicants’ eligibility for employment; (2) whether SDE has knowledge that an applicant was disciplined after a finding of abuse or neglect or sexual misconduct and any information regarding such finding; and (3) whether SDE received notification that the applicant convicted of a crime or there are charges pending involving abuse or neglect or sexual misconduct.
The Act also required the SDE to develop a standard form for BOEs to use to implement the new employment requirements. This form can be found here educational_employer_verification_form
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The impact of this Act is immediate. Although the Fiscal Impact Note regarding the adopted bill indicates minimal fiscal impact, the Act imposes significant changes regarding the hiring process for education personnel and will have significant impact on BOEs – both economic and non-economic – as it is likely additional personnel would be required to perform the vetting process and the time required to hire education personnel will be extended due to these changes.
Our team of labor/employment and education attorneys can assist with implementation of these new employment requirements for BOE personnel.