Limits the duration of a conditional appointment; extends the effectiveness of chapter 147 of the laws of 2001

§2 of the bill would amend paragraph (b) of subdivision 39 of section 1709 of the Education Law to permit prospective employees of a union free school district to be issued a conditional clearance, which would terminate forty-five days after notification by the Commissioner of such conditional clearance. Such conditional clearance could not be extended or renewed after the initial forty-five day period unless the applicant had demonstrated good cause for failing to obtain clearance within the initial thirty day period.

§3 of the bill would amend paragraph (b) of subdivision 9 of section 1804 of the Education Law to permit potential employees of a central school district to be issued a conditional clearance, which would terminate forty-five days after notification by the Commissioner of such conditional clearance. Such conditional clearance could not be extended or renewed after the initial forty-five day period unless the applicant had demonstrated good cause for failing to obtain clearance within the initial thirty day period.

§4 of the bill would amend subparagraph (b) of paragraph 11 of subdivision 4 of section 1950 of the Education Law to permit a prospective employee of a BOCES to be issued a conditional clearance, which would terminate forty-five days after notification by the Commissioner of such conditional clearance. Such conditional clearance could not be extended or renewed after the initial forty-five day period unless the applicant had demonstrated good cause for failing to obtain clearance within the initial thirty day period.

§5 of the bill would amend paragraph (b) of subdivision 18 of section 2503 of the Education Law to permit a prospective employee of a small city school district to be issued a conditional clearance, which would terminate forty-five days after notification by the Commissioner of such conditional clearance. Such conditional clearance could not be extended or renewed after the initial forty-five day period unless the applicant had demonstrated good cause for failing to obtain clearance within the initial thirty day period.

§6 of the bill would. amend paragraph (b) of subdivision 25 of section 2554 of the Education Law to permit a prospective employee of a large city school district (other than the New York City school district, which conducts its own criminal history record checks) to be issued a conditional clearance, which would terminate forty-five days after notification by the Commissioner of such conditional clearance. Such conditional clearance could not be extended or renewed after the initial forty-five day period unless the applicant had demonstrated good cause for failing to obtain clearance within the initial thirty day period.

§ 7 of the bill would amend subparagraph (ii) of paragraph (a-2) of subdivision 3 of section 2854 of the Education Law to permit a prospective employee of a charter school to be issued a conditional clearance, which would terminate forty-five days after notification by the Commissioner of such conditional clearance. Such conditional clearance could not be extended or renewed after the initial forty-five day period unless the applicant had demonstrated good cause for failing to obtain clearance within the initial thirty day period.

§8 of the bill would extend the date on which the provisions of Chapter 147 of the Laws of 2001 would expire from July 1, 2009 to July 1, 2010.

§9 of the bill would provide that all conditional clearances issued by the Commissioner of Education pursuant to sections 1604, 1709, 1804, 1950, 2503, 2554 or 2854 of the Education Law prior to the effective date of this bill would expire forty-five days after the effective date of July 1, 2009. Such conditional appointments would not be extended or renewed unless the applicant demonstrates good cause for failing to obtain clearance within this forty-five day period.

§ 10 of the bill would be the effective date.

Statement in support of the bill

Chapter 147 of the Laws of2001 granted school districts, charter schools, and BOCES the authority to make conditional appointments for certain prospective school employees. This was needed because it was taking a longer than expected time to secure full clearances for employment from the Commissioner of Education under Education Law §305(30). Chapter 147 of the Laws of 2001 provided that it would be repealed after two years, on the assumption that these delays would be minimized and eliminated. Both Chapters 127 of the Laws of 2005 and Chapter 90 of the Laws of 2007 extended the effectiveness of Chapter 147 for an additional two years due to the continued need for conditional clearances.

Despite the introduction of a new interactive database (TEACH) in the State Education Department (SED) to provide better information to school districts, BOCES, charter schools and individual applicants about the status of an individual's fingerprint application and the use of fingerprint card scanning technology, SED continues to have a backlog of fingerprint applications. SED is implementing new technology (LIVES CAN) to capture digital fingerprint images in the field. This will greatly reduce the time between when fingerprints are submitted to when the clearance for employment is issued. SED anticipates that LIVES CAN will be increasingly available to school districts, charter schools and BOCES. The use of LIVESCAN in conjunction with TEACH should allow fingerprint clearance results to be available within a few days following the transmission of the digital fingerprint images, in most instances. There will, however, always be situations in which clearances for employment cannot be granted quickly. For example, the results of Division of Criminal Justice Services (DCJS) and Federal Bureau of Investigation (FBI) searches are sometimes delayed, a situation totally beyond SED's control. Or, certain digital fingerprint images may contain flaws and errors that require the applicant to be re-fingerprinted. Such "rejections" of fingerprint images cause additional delays in issuing a clearance for employment. In addition, some individuals will not have access to a digital fingerprint scan station due to their geographic location or an employer's decision to continue submitting fingerprint cards rather than digital fingerprint images. Thus, the authority for school districts, charter schools, and BOCES to make conditional appointments is still necessary so they can meet employment needs and the needs of their students.

If Chapter 147 were to sunset, the technical amendments relating to teacher removal proceedings that were made by section 11 of Chapter 147 would also sunset. These amendments are necessary to make the time frames for conducting informal conferences with teachers and building principals following a teacher's removal of a student workable for school districts. The amendments made· by section 11 of Chapter 147 clarify that if the 24- or 48-hour period does not expire on a school day, it is extended to the corresponding time on the next school day. If these provisions are not extended, a teacher would be required to provide parents with an informal opportunity to be heard within 24 hours of a pupil's removal, even if the 24 hours expires on a Saturday or school holiday. Similarly, building principals would be required to offer parents the opportunity for an informal conference within 48 hours of a student's removal even if the student is removed late in the day on a Friday or before a school vacation.

Further, this bill would provide that conditional clearances would be valid for forty-five days. Under present law there is no time limit on an issued conditional clearance. In February 2009 the State Comptroller's Office issued an audit of Criminal History Background Checks for School Employees, Report 207-S-119, in which the State Comptroller identified a substantial number of instances in which a background check had not been completed (469 out of 105,932 applications then pending). Of that number, 427 of the criminal history record checks were completed, but the State Comptroller found that the average length of time between the completion of the DCJS background check and the final FBI check for these delayed applications was at least eight months. This poses an unacceptable and extended risk of students' exposure to prospective employees who may have the types of criminal histories that could result in their preclusion from such employment. To address this, the bill would establish a time limit for conditional clearances. Conditional clearances were never intended to allow prospective employees to continue to be employed for extended periods without completing both the state DCJS and FBI criminal history record checks.

It is apparent from this data that there are too many instances in which school districts, BOCES and charter schools are allowing prospective employees to continue employment for a protracted period without completing a full criminal history record check. There can be significant delays in the processing of fingerprints through the FBI, which has rigorous standards that cause more rejections of fingerprint images than at the state level, but delays of this magnitude should not occur with this frequency. To address this problem and reduce the risk to students from contact with prospective employees who have not yet obtained criminal clearance from the FBI's national registry, this bill would impose a forty-five day maximum duration for a conditional clearance and prohibit renewal or extension of a conditional appointment unless the Commissioner issues a new conditional clearance upon a showing of good cause for failing to obtain full clearance within the initial forty-five days. For any prospective employee who holds a conditional clearance on the effective date of this act, this bill would provide that the conditional clearance would expire forty-five days after the effective date and could not be extended or renewed without a showing of good cause for the delay. Thus, delays in processing fingerprints attributable to lack of diligence on the part of prospective employers or their employees would not be excused, but in those rare instances in which the delay is attributable to processing delays at the state or federal levels, the bill would provide a mechanism for allowing the prospective employee to continue their employment beyond forty-five days. The vast majority of criminal history record checks would be processed much more quickly, but in the few instances of significant delays in the processing of fingerprints through the FBI, there would continue to be allowable conditional clearances of limited duration.

This bill would recommend that the sunset on conditional clearances be extended for one year so the effectiveness of the forty-five day limitation and an analysis of the need for additional changes in the conditional clearance procedures could be fully assessed.

Budgetary implications of the bill

This bill would impose additional administrative costs on school districts, BOCES, charter schools and the State Education Department for processing requests for additional conditional clearances when the forty-five day period elapses, but these costs are expected to be minimal.

Prior legislative history

None.

Effective date

July 1, 2009, provided that in the event it shall become a law after such date, this act would take effect immediately and would be deemed to have been in full force and effect on and after July 1, 2009.