HOUSE BILL NO. 590

INTRODUCED BY B. LAWSON, B. DEPRATU, S. ANDERSON, B. BARNHART, S. BOOKOUT-REINICKE, R. CLARK, A. ELLIS, D. FUCHS, P. SLITER, R. SOMERVILLE, C. YOUNKIN

A BILL FOR AN ACT ENTITLED: "AN ACT AUTHORIZING THE SUPERINTENDENT OF PUBLIC INSTRUCTION TO REQUIRE FINGERPRINTING AND A BACKGROUND CHECK OF AN APPLICANT FOR TEACHER, SPECIALIST, OR ADMINISTRATOR CERTIFICATION; ALLOWING THE SUPERINTENDENT OF PUBLIC INSTRUCTION TO ISSUE A TEMPORARY PRACTICE PERMIT; ALLOWING THE SUPERINTENDENT OF PUBLIC INSTRUCTION TO SHARE INFORMATION WITH SCHOOL DISTRICTS; IMPOSING A FEE FOR FINGERPRINTING AND CONDUCTING THE BACKGROUND CHECK; ALLOWING PUBLIC SCHOOL DISTRICTS TO REQUIRE CONSENT TO FINGERPRINTING AND A BACKGROUND CHECK BY AN APPLICANT FOR A NONCERTIFIED PAID OR VOLUNTEER POSITION INVOLVING REGULAR, UNSUPERVISED ACCESS TO PUPILS; ALLOWING SCHOOL DISTRICTS TO IMPOSE A FEE FOR FINGERPRINTING AND CONDUCTING A BACKGROUND CHECK; AUTHORIZING A BUSINESS OR ORGANIZATION THAT PROVIDES SERVICES TO CHILDREN TO REQUIRE CONSENT TO FINGERPRINTING AND A BACKGROUND CHECK BY AN APPLICANT FOR A PAID OR VOLUNTEER POSITION; AUTHORIZING A BUSINESS OR ORGANIZATION TO IMPOSE A FEE FOR FINGERPRINTING AND CONDUCTING A BACKGROUND CHECK; AUTHORIZING THE DISSEMINATION OF CRIMINAL HISTORY RECORD INFORMATION TO THE SUPERINTENDENT OF PUBLIC INSTRUCTION RELATING TO AN APPLICANT FOR TEACHER, SPECIALIST, OR ADMINISTRATOR CERTIFICATION; AUTHORIZING THE DISSEMINATION OF CRIMINAL HISTORY RECORD INFORMATION TO THE TRUSTEES OF A SCHOOL DISTRICT RELATING TO AN APPLICANT FOR A NONCERTIFIED PAID OR VOLUNTEER POSITION IN A SCHOOL DISTRICT; AUTHORIZING THE DISSEMINATION OF CRIMINAL HISTORY RECORD INFORMATION TO A BUSINESS OR ORGANIZATION THAT PROVIDES SERVICES TO CHILDREN; PROVIDING A CONTINGENT VOIDNESS PROVISION; AMENDING SECTION 44-5-302, MCA; AND PROVIDING EFFECTIVE DATES."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Fingerprinting and background check for certification -- fee. (1) (a) The superintendent of public instruction shall require an applicant for a teacher, specialist, or administrative certificate, classes one through seven, and for any other certificate established after [the effective date of this act] who has never previously been issued a certificate of any kind by the superintendent of public instruction in the state of Montana to submit to fingerprinting and a background check as a condition of application. The superintendent of public instruction may not issue a certificate to the applicant until state and federal authorities have reported the results of the fingerprinting and the background check to the superintendent of public instruction.

(b) The superintendent of public instruction shall consider the information obtained from the results of the fingerprinting under the provisions of Title 37, chapter 1, part 2, governing the licensure of criminal offenders, and under 20-4-110(1)(e). Conviction, including conviction following a plea of nolo contendere, a conviction in which the sentence is suspended or deferred, or any other adjudication treated by the court as a conviction may be considered by the superintendent of public instruction in the certification application process if the conviction was for a sexual offense, a crime involving violence or the sale of drugs, theft, or any other crime meeting the criteria of Title 37, chapter 1, part 2.

(c) The superintendent of public instruction may issue a temporary practice permit to a person otherwise qualified, pending the completion of a background check. The permit must designate on its face that the holder's background check has not been completed. The person may practice under the permit until a certificate is granted or until a notice of proposal to deny a certificate is issued by the superintendent of public instruction.

(2) The superintendent of public instruction shall assess a fee of $60 for fingerprinting and conducting the background check. The fee must be deposited in the special revenue account established in [section 2].

NEW SECTION. Section 2. Special revenue account -- use of funds. (1) There is an account in the state special revenue fund for the purpose of processing fingerprints and conducting background checks of applicants for certification under [section 1]. Money from fees for fingerprinting and conducting background checks required in [section 1] must be deposited in the account.

(2) Money in the account must be used for the additional personnel that are necessary to carry out the superintendent of public instruction's obligation to process fingerprints and conduct background checks of applicants for certification under [section 1] and to defray the expenses of the superintendent of public instruction in discharging the administrative duties in relation to [section 1].

(3) Any excess fees must be deposited in the general fund.

NEW SECTION. Section 3. Fingerprinting and background checks for school employees and volunteers -- fee. (1) The trustees of a school district may require an applicant for a paid or a volunteer position with the school district involving regular, unsupervised access to pupils, other than an applicant for a position that requires certification from the superintendent of public instruction, to consent to fingerprinting and a background check as a condition of application. Information regarding arrests without conviction may not be considered in the hiring or appointment process of the school district. Information regarding criminal convictions may be considered if the conviction relates to the public health, welfare, or safety as it applies to the position sought.

(2) The trustees may:

(a) assess a fee of $32 for fingerprinting and conducting the background check and shall deposit the fee in the special revenue account established in [section 5]; or

(b) absorb the cost for fingerprinting and conducting the background check into the budget of an existing program.

NEW SECTION. Section 4. Fingerprinting and background checks for businesses or organizations providing services to children -- fee. (1) A business or organization that provides care, treatment, education, training, instruction, supervision, or recreation for children may require an applicant for a paid or volunteer position with the business or organization to consent to fingerprinting and a background check as a condition of application.

(2) The business or organization may assess a fee of $32 for fingerprinting and conducting the background check. The fee must be deposited in the special revenue account established in [section 5].

NEW SECTION. Section 5. Special revenue account -- use of funds. (1) There is an account in the state special revenue fund for the purpose of processing fingerprints received under [sections 1, 3, and 4]. Fees paid for the processing of fingerprints by the department of justice for any public or private agency, organization, or business under the provisions of [sections 1, 3, and 4] must be deposited in the account.

(2) Money in the account must be used for the additional personnel that are necessary to carry out the department of justice's obligation to process fingerprints received under [sections 1, 3, and 4] and to defray the expenses of the department of justice in discharging its administrative duties in relation to fingerprint processing under [sections 1, 3, and 4].

(3) At the end of each fiscal year, any excess fees must be deposited in the general fund that exceed a 60-day working capital reserve.

Section 6. Section 44-5-302, MCA, is amended to read:

"44-5-302. Dissemination of criminal history record information that is not public criminal justice information. (1) Criminal history record information may not be disseminated to agencies other than criminal justice agencies unless:

(a) the information is disseminated with the consent or at the request of the individual about whom it relates according to procedures specified in 44-5-214 and 44-5-215;

(b) a district court considers dissemination necessary;

(c) the information is disseminated in compliance with 44-5-304; or

(d) the agency receiving the information is authorized by law to receive it.

(2) The department of justice and other criminal justice agencies may accept fingerprints from and may provide available local, state, multistate, federal (to the extent allowed by federal law), and other criminal history record information to:

(a) the state bar for licensing purposes, with respect to applicants for admission to the state bar of Montana ; and

(b) the superintendent of public instruction for certification purposes, with respect to applicants for all certificates issued by the superintendent under the provisions of Title 20, subject to the limitations in [section 1].

(3) (a) The trustees of a school district under [section 3] may submit fingerprints to the department of justice of applicants for paid and volunteer positions involving regular, unsupervised access to pupils of the district, other than applicants for a position that requires certification from the superintendent of public instruction, with the exception of information regarding arrests without conviction. In submitting the fingerprints for processing, the trustees shall include a signed statement of the applicant whose fingerprints are submitted that includes:

(i) the name, address, and date of birth of the applicant;

(ii) confirmation that the applicant claims to not have been convicted of any crime or a complete description of the circumstances if the prospective employee or volunteer admits to having been convicted of a crime;

(iii) notification to the applicant that the trustees may request a background check;

(iv) notification to the applicant of the right to obtain a copy of the report and challenge its accuracy; and

(v) notification to the applicant that prior to the completion of the check, regular unsupervised access to children may be limited or denied.

(b) Upon receipt of a set of fingerprints and the additional information required under this subsection (3), the department of justice shall review state and federal records through the federal bureau of investigation. The department of justice shall report to the trustees whether the applicant has been convicted of or is under pending charges for any crime involving violence, a sexual offense, the sale or distribution of illegal drugs, theft, or fraud.

(4) (a) A business or organization that qualifies under [section 4] may submit fingerprints to the department of justice of applicants for paid or volunteer positions. In submitting the fingerprints for processing, the business or organization shall include a signed statement of the applicant whose fingerprints are submitted that includes:

(i) the name, address, and date of birth of the applicant;

(ii) confirmation that the applicant claims to not have been convicted of any crime or a complete description of the circumstances if the applicant admits to having been convicted of a crime;

(iii) notification to the applicant that the business or organization may request a background check;

(iv) notification to the applicant of the right to obtain a copy of the report and challenge its accuracy; and

(v) notification to the applicant that prior to the completion of the background check, regular unsupervised access to children may be limited or denied.

(b) Upon receipt of a set of fingerprints and the additional information required under this subsection (4), the department of justice shall review state and federal records through the federal bureau of investigation. The department of justice shall report to the business or organization whether the applicant has been convicted of or is under pending charges for any crime involving violence, a sexual offense, the sale or distribution of illegal drugs, theft, or fraud."

NEW SECTION. Section 7. Codification instruction. (1) [ Sections 1 and 2] 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 and 2].

(2) [Section 3] is intended to be codified as an integral part of Title 20, chapter 3, part 3, and the provisions of Title 20, chapter 3, part 3, apply to [section 3].

(3) [Section 4] is intended to be codified as an integral part of Title 52, chapter 2, and the provisions of Title 52, chapter 2, apply to [section 4].

(4) [Section 5] is intended to be codified as an integral part of Title 44, chapter 5, and the provisions of Title 44, chapter 5, apply to [section 5].

NEW SECTION. Section 8. Contingent voidness. (1) If Constitutional Initiative No. 75, enacting Article VIII, section 17, of the Montana constitution, is declared invalid, then [section 1] is effective on the date of the determination of invalidity.

(2) If [LC 1334] is submitted to and is not approved by the electorate, then [section 1] is void.

NEW SECTION. Section 9. Effective dates. (1) Except as provided in subsection (2), [this act] is effective July 1, 1999.

(2) [Section 1] is effective upon the occurrence of the contingency provided for in [section 8(1)].

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