House Bill No. 448
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act requiring fingerprinting and background checks of applicants for a teacher or specialist certificate or for an applicant for an employee or volunteer position in a public school that has significant unsupervised access to a student; authorizing the chief administrator of a private school to require fingerprinting and background checks for an applicant for a teaching, specialist, employee or volunteer position that has significant unsupervised access to a student; creating a special revenue account; granting rulemaking authority; providing a statutory appropriation; amending section
17-7-502, MCA; and providing an immediate effective date and a retroactive applicability date."
STATEMENT OF INTENT
A statement of intent is required for this bill because [section 6] grants rulemaking authority to the department of justice for the implementation of fingerprinting and background checks for applicants for teacher and specialist certificates, noncertified employees, and volunteer positions in public schools and applicants for teaching and specialist positions, employees, and volunteer positions in private schools. At a minimum, the rules must address:
(1) a fee schedule commensurate with the actual costs associated with the fingerprinting and the background checks;
(2) the specific crimes that are relevant to a person's fitness for certification, employment, or a volunteer position. The rules may provide for some differentiation among the specific crimes, depending upon the crime's relevance to an applicant's responsibility for the safety and well-being of children.
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Definitions. As used in [sections 1 through 6], the following definitions apply:
(1) "Chief administrator" means the chief administrative officer of a private school.
(2) "Department" means the department of justice provided for in 2-15-2001.
(3) "Employee" means a person working in a noncertified position who has significant unsupervised access to a student in connection with the person's position.
(4) "Superintendent" means the superintendent of public instruction.
(5) "Volunteer" means a person in an appointive position who has significant unsupervised access to a student in connection with the person's assignment.
NEW SECTION. Section 2. Fingerprinting and background check for public school teacher or specialist certificate -- certain employees and volunteers -- affidavit -- right to challenge. (1) A person applying for a teacher or specialist certificate at a public school must be fingerprinted, and a background check must be made of local, state, and national criminal history records to disclose a criminal record. A fingerprint card and an affidavit, as provided in subsection (3), must be submitted to the superintendent at the time of application for certification. The superintendent shall forward the fingerprint card to the department.
(2) A person who holds a teacher or specialist certificate and who applies for an additional certificate may not be required to be fingerprinted.
(3) (a) On a form provided by the superintendent and notarized, an applicant under subsection (1) shall certify whether the applicant is charged with or has ever been convicted or adjudicated of a crime involving arson, harm to children, or physical or sexual violence against any person in this state or in another state.
(b) If the background check reveals that the applicant is charged with or has been convicted or adjudicated of a crime listed in subsection (3)(a), the superintendent shall consider the results of the background check in evaluating the fitness of the applicant for certification.
(4) The applicant under subsection (1) may obtain a copy of the applicant's criminal history record and may challenge the accuracy and completeness of the information contained in the record in accordance with 44-5-215.
(5) A school district superintendent shall require an applicant for an employee position or an applicant for a volunteer position to submit to a fingerprinting and a criminal background check as a condition for employment or appointment and, where reasonable cause exists, may require an existing employee or volunteer to submit to a criminal background check.
(6) The applicant under subsection (5) must receive written notice that the background check has been requested.
(7) (a) On a form provided by the district superintendent and notarized, an applicant under subsection (5) shall certify whether the applicant is charged with or has ever been convicted or adjudicated of a crime involving arson, harm to children, or physical or sexual violence against any person in this state or in another state.
(b) If the background check reveals that the applicant is charged with or has been convicted or adjudicated of a crime listed in subsection (7)(a), the district superintendent shall consider the results of the background check in evaluating the fitness of the applicant for an employee or volunteer position.
(8) The district superintendent shall require an applicant under subsection (5) to pay the costs of fingerprinting and the background check as a condition for consideration for employment or appointment if a copy of the background check is provided to the district or school considering employment or appointment of the applicant and if the applicant:
(a) has passed an initial review;
(b) is one of a pool of no more than five candidates for a position; and
(c) has not been the subject of a criminal background check of similar scope that was requested by the potential employer or the board of public education during the preceding 2 years.
NEW SECTION. Section 3. Fingerprinting and background check authorized for private school teacher, specialist, employee, or volunteer. (1) The chief administrator at a private school may require a person applying for a teaching or specialist position or an applicant for an employee or volunteer position at a private school to submit to a fingerprinting and a criminal background check as a condition for employment or appointment and, where reasonable cause exists, may require an existing employee or volunteer to submit to a criminal background check.
(2) The applicant must receive written notice that the background check has been requested.
(3) (a) On a form provided by the chief administrator, an applicant shall certify whether the applicant is charged with or has ever been convicted or adjudicated of a crime involving arson, harm to children, or physical or sexual violence against any person in this state or in another state.
(b) If the background check reveals that the applicant is charged with or has been convicted or adjudicated of a crime listed in subsection (3)(a), the chief administrator may consider the results of the background check in evaluating the fitness of the applicant for employment or for a volunteer position.
(4) The chief administrator may require an applicant to pay the costs of fingerprinting and the background check as a condition for consideration for employment or appointment if a copy of the background check is provided to the district or school considering employment or appointment of the applicant and if the applicant:
(a) has passed an initial review;
(b) is one of a pool of no more than five candidates for a position; and
(c) has not been the subject of a criminal background check of similar scope that was requested by the potential employer or the board of public education during the preceding 2 years.
NEW SECTION. Section 4. Department to conduct background check -- release of information. (1) Pursuant to [sections 2 and 3], the department shall conduct the background check in compliance with Public Law 92-544. The department shall make a reasonable effort to respond to the request for the background check within 15 business days. If the criminal history record is incomplete, the department shall make a reasonable effort to conduct research in order to complete the record.
(2) The department shall notify the superintendent, district superintendent, or chief administrator of the results of the background check. Information regarding a conviction or a pending indictment for an offense listed in [sections 2(3)(a), 2(7)(a), and 3(3)(a)] must be forwarded to the superintendent, district superintendent, or chief administrator. An applicant's full criminal history record may not be released to the superintendent, a district superintendent, or a chief administrator.
NEW SECTION. Section 5. Fees -- special revenue account. (1) The fee charged for fingerprinting and conducting the background check pursuant to [sections 2 and 3] may not exceed the actual cost of the procedures.
(2) There is an account in the state special revenue fund to the credit of the department. The fees collected pursuant to subsection (1) must be deposited into the account. The money in the account is statutorily appropriated, as provided in 17-7-502, and must be used by the department for the administration of [sections 1 through 5].
NEW SECTION. Section 6. Rulemaking authority. The department, in consultation with the superintendent, shall adopt rules implementing [sections 1, 2, 4, and 5].
Section 7. Section 17-7-502, MCA, is amended to read:
"17-7-502. Statutory appropriations -- definition -- requisites for validity. (1) A statutory appropriation is an appropriation made by permanent law that authorizes spending by a state agency without the need for a biennial legislative appropriation or budget amendment.
(2) Except as provided in subsection (4), to be effective, a statutory appropriation must comply with both of the following provisions:
(a) The law containing the statutory authority must be listed in subsection (3).
(b) The law or portion of the law making a statutory appropriation must specifically state that a statutory appropriation is made as provided in this section.
(3) The following laws are the only laws containing statutory appropriations: 2-9-202; 2-17-105; 2-18-812; 3-5-901; 5-13-403; 10-3-203; 10-3-310; 10-3-312; 10-3-314; 10-4-301; 15-1-111; 15-23-706; 15-30-195; 15-31-702; 15-37-117; 15-38-202; 15-65-121; 15-70-101; 16-1-404; 16-1-410; 16-1-411; 16-11-308; 17-3-106; 17-3-212; 17-5-404; 17-5-424; 17-5-804; 17-6-101; 17-6-201; 17-7-304; 18-11-112; 19-2-502; 19-6-709; 19-9-1007; 19-17-301; 19-18-512; 19-18-513; 19-18-606; 19-19-205; 19-19-305; 19-19-506; [section 5]; 20-8-107; 20-8-111; 20-9-361; 20-26-1503; 23-5-136; 23-5-306; 23-5-409; 23-5-610; 23-5-612; 23-5-631; 23-7-301; 23-7-402; 32-1-537; 37-43-204; 37-51-501; 39-71-503; 39-71-907; 39-71-2321; 39-71-2504; 44-12-206; 44-13-102; 50-4-623; 50-5-232; 50-40-206; 53-6-150; 53-6-703; 53-24-206; 60-2-220; 67-3-205; 75-1-1101; 75-5-1108; 75-6-214; 75-11-313; 76-12-123; 80-2-103; 80-2-222; 80-4-416; 81-5-111; 82-11-136; 82-11-161; 85-1-220; 85-20-402; 90-3-301; 90-4-215; 90-6-331; 90-7-220; 90-7-221; and 90-9-306.
(4) There is a statutory appropriation to pay the principal, interest, premiums, and costs of issuing, paying, and securing all bonds, notes, or other obligations, as due, that have been authorized and issued pursuant to the laws of Montana. Agencies that have entered into agreements authorized by the laws of Montana to pay the state treasurer, for deposit in accordance with 17-2-101 through 17-2-107, as determined by the state treasurer, an amount sufficient to pay the principal and interest as due on the bonds or notes have statutory appropriation authority for the payments. (In subsection (3): pursuant to sec. 7, Ch. 567, L. 1991, the inclusion of 19-6-709 terminates upon death of last recipient eligible for supplemental benefit; and pursuant to sec. 7(2), Ch. 29, L. 1995, the inclusion of 15-30-195 terminates July 1, 2001.)"
NEW SECTION. Section 8. Codification instruction. [Sections 1 through 6] are intended to be codified as an integral part of Title 20, chapter 4, part 1, and the provisions of Title 20, chapter 4, part 1, apply to [sections 1 through 6].
NEW SECTION. Section 9. Effective date -- retroactive applicability. [This act] is effective on passage and approval and applies retroactively, within the meaning of 1-2-109, to certificates issued on or after January 1, 1997.
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