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ADDA
BACKGROUND CHECKS
It shall be the policy of the school
district that, as required by law, a state and national fingerprint criminal
background check will be conducted to determine the suitability of full or part
time current and prospective school employees, who may have direct and
unmonitored contact with children. School employees shall include, but not be
limited to any apprentice, intern, or student teacher or individuals in similar
positions, who may have direct and unmonitored contact with children. The
School Committee shall only obtain a fingerprint background check for current
and prospective employees for whom the School Committee has direct hiring
authority. In the case of an individual directly hired by a school committee,
the chair of the School Committee shall review the results of the national
criminal history check. The Superintendent shall also obtain a state and
national fingerprint background check for any individual who regularly provides
school related transportation to children. The School Committee, Superintendent
or Principal, as appropriate, may obtain a state and national
fingerprint criminal background check for any volunteer, subcontractor or
laborer commissioned by the School Committee, school or employed by the city or
town to perform work on school grounds, who may have direct and unmonitored
contact with children. School volunteers and subcontractors/laborers who may
have direct and unmonitored contact with children must continue to submit state
CORI checks.
The fee charged by the provider to
the employee and educator for national fingerprint background checks will be
$55.00 for school employees subject to licensure by DESE and $35.00 for other
employees, which fee may from time to time be adjusted by the appropriate
agency. The employer shall continue to obtain periodically, but not less
than every 3 years, from the department of criminal justice information
services all available Criminal Offender Record Information (CORI) for any
current and prospective employee or volunteer within the school district who
may have direct and unmonitored contact with children.
Direct and unmonitored contact with
children is defined in DESE regulations as contact with a student when no other
employee who has received a suitability determination by the school or district
is present. “Contact” refers to any contact with a student that provides the
individual with opportunity for physical touch or personal communication.
This policy is applicable to any
fingerprint-based state and national criminal history record check made for
non-criminal justice purposes and requested under applicable federal authority
and/or state statute authorizing such checks for licensing or employment
purposes. Where such checks are allowable by law, the following practices and
procedures will be followed.
Requesting CHRI (Criminal History
Record Information) checks
Fingerprint-based CHRI checks will
only be conducted as authorized by state and federal law, in accordance with
all applicable state and federal rules and regulations. If an applicant or
employee is required to submit to a fingerprint-based state and national
criminal history record check, he/she shall be informed of this requirement and
instructed on how to comply with the law. Such instruction will include
information on the procedure for submitting fingerprints. In addition, the
applicant or employee will be provided with all information needed to
successfully register for a fingerprinting appointment.
Access to CHRI
All CHRI is subject to strict state
and federal rules and regulations in addition to Massachusetts CORI laws and
regulations. CHRI cannot be shared with any unauthorized entity for any
purpose, including subsequent hiring determinations. All receiving entities are
subject to audit by the Massachusetts
Department of Criminal Justice
Information Services (DCJIS) and the FBI, and failure to comply with such rules
and regulations could lead to sanctions. Federal law and regulations provide
that the exchange of records and information is subject to cancellation if
dissemination is made outside of the receiving entity or related entities.
Furthermore, an entity can be charged criminally for the unauthorized
disclosure of CHRI.
Storage of CHRI
CHRI shall only be stored for
extended periods of time when needed for the integrity and/or utility of an
individual's personnel file. Administrative, technical, and physical
safeguards, which are in compliance with the most recent CJIS Security Policy
have been implemented to ensure the security and confidentiality of CHRI. Each
individual involved in the handling of CHRI is to familiarize himself/herself
with these safeguards.
In addition to the above, each
individual involved in the handling of CHRI will strictly adhere to the policy
on the storage, retention and destruction of CHRI.
Retention and Destruction of CHRI
Federal law prohibits the
repurposing or dissemination of CHRI beyond its initial requested purpose. Once
an individual's CHRI is received, it will be securely retained in internal
agency documents for the following purposes only:
Historical
reference and/or comparison with future CHRI requests,
Dispute of
the accuracy of the record
Evidence for
any subsequent proceedings based on information contained in the CHRI.
CHRI will be kept for the above
purposes in a secure location in the office of the superintendent. When
no longer needed, CHRI and any summary of CHRI data must be destroyed by
shredding paper copies and/or by deleting all electronic copies from the
electronic storage location, including any backup copies or files. The
shredding of paper copies of CHRI by an outside vendor must be supervised by an
employee of the district.
CHRI Training
An informed review of a criminal
record requires training. Accordingly, all personnel authorized to receive
and/or review CHRI at the district will review and become familiar with the
educational and relevant training materials regarding SAFIS and CHRI laws and
regulations made available by the appropriate agencies, including the DCJIS.
Determining Suitability
In determining an individual's
suitability, the following factors will be considered: these factors may
include, but not necessarily be limited to: the nature and gravity of the crime
and the underlying conduct, the time that has passed since the offense,
conviction and/or completion of the sentence, nature of the position held or
sought, age of the individual at the time of the offense, number of offenses,
any relevant evidence of rehabilitation or lack thereof and any other factors
deemed relevant by the district.
A record of the suitability
determination will be retained. The following information will be included in
the determination:
The name and
date of birth of the employee or applicant;
The date on
which the school employer received the national criminal history check results;
and,
The
suitability determination (either "suitable" or
"unsuitable").
A copy of an individual's
suitability determination documentation must be provided to another school
employer, or to the individual, upon request of the individual for whom the
school employer conducted a suitability determination.
Relying on Previous Suitability
Determination.
The school employer may obtain and
may rely on a favorable suitability determination from a prior employer, if the
following criteria are met:
The suitability
determination was made within the last seven years; and
The
individual has not resided outside of Massachusetts for any period longer than
three years since the suitability determination was made; and either
The
individual has been employed continuously for one or more school employers or
has gaps totaling no more than two years in his or her employment for school
employers; or
If the
individual works as a substitute employee, the individual is still deemed
suitable for employment by the school employer who made a favorable suitability
determination. Upon request of another school employer, the initial school
employer shall provide documentation that the individual is still deemed
suitable for employment by the initial school employer.
Adverse Decisions Based on CHRI
If inclined to make an adverse
decision based on an individual's CHRI, the district will take
the following steps prior to making a final adverse determination:
Provide the
individual with a copy of his/her CHRI used in making the adverse decision;
Provide the
individual with a copy of this CHRI Policy;
Provide the
individual the opportunity to complete or challenge the accuracy of his/her
CHRI;
and
Provide the
individual with information on the process for updating, changing, or correcting
CHRI.
A final adverse decision based on an
individual's CHRI will not be made until the individual has been afforded a
reasonable time depending on the particular circumstances not to exceed thirty
days to correct or complete the CHRI.
If a school employer receives
criminal record information from the state or national fingerprint-based
background checks that includes no disposition or is otherwise
incomplete, the school employer may request that an individual, after
providing him a copy of said background check, provide additional
information regarding the results of the criminal background checks to
assist the school employer in determining the applicant's suitability for
direct and unmonitored contact with children, notwithstanding the terms of General
Laws chapter 151B, S. 4,( 9,9 ½). Furthermore, in exigent circumstances, a
school employer may, pursuant to the terms of DESE regulations (see specific
regulations in legal references), hire an employee on a conditional basis
without first receiving the results of a national criminal background check.
After exhausting several preliminary steps as contained in the above referenced
regulation the district may require an individual to provide information
regarding the individual's history of criminal convictions; however, the
individual cannot be asked to provide information about juvenile adjudications
or sealed convictions. The superintendent is advised to confer with legal
counsel whenever he/she solicits information from an individual concerning his/her
history of criminal convictions.
Secondary Dissemination of CHRI
If an individual's CHRI is released
to another authorized entity, a record of that dissemination must be made in
the secondary dissemination log. The secondary dissemination log is subject to
audit by the DCJIS and the FBI.
The following information will be
recorded in the log:
Subject
Name;
Subject Date
of Birth;
Date and
Time of the dissemination;
Name of the
individual to whom the information was provided;
Name of the
agency for which the requestor works;
Contact
information for the requestor; and
The specific
reason for the request.
Reporting to Commissioner of
Elementary and Secondary Education
Pursuant to state law and
regulation, if the district dismisses, declines to renew the employment
of, obtains the resignation of, or declines to hire a licensed educator or an
applicant for a Massachusetts educator license because of information
discovered through a state or national criminal record check, the district shall
report such decision or action to the Commissioner of Elementary and Secondary
Education in writing within 30 days of the employer action or educator
resignation. The report shall be in a form requested by the Department and
shall include the reason for the action or resignation as well as a copy of the
criminal record checks results. The superintendent shall notify the
employee or applicant that it has made a report pursuant to the regulations to
the Commissioner.
Pursuant to state law and
regulation, if the district discovers information from a state or national
criminal record check about a licensed educator or an applicant for a
Massachusetts educator license that implicates grounds for license action
pursuant to regulations, the Superintendent shall report to the Commissioner in
writing within 30 days of the discovery, regardless of whether the district
retains or hires the educator as an employee. The report must include a copy of
the criminal record check results. The school employer shall notify the
employee or applicant that it has made a report pursuant to regulations to the
Commissioner and shall also send a copy of the criminal record check results to
the employee or applicant.
C.O.R.I. REQUIREMENTS
It shall be the policy of the
district to obtain all available Criminal Offender Record Information (CORI)
from the department of criminal justice information services of prospective
employee(s) or volunteer(s) of the school department including any individual
who regularly provides school related transportation to children, who may have
direct and unmonitored contact with children, prior to hiring the employee(s)
or to accepting any person as a volunteer. State law requires that school
districts obtain CORI data for employees of taxicab companies that have
contracted with the schools to provide transportation to pupils.
The Superintendent, Principal, or
their certified designees shall periodically, but not less than every three
years, obtain all available Criminal Offender Record Information from the
department of criminal justice informational services on all employees,
individuals who regularly provide school related transportation to children,
including taxicab company employees, and volunteers who may have direct and
unmonitored contact with children, during their term of employment or volunteer
service.
The Superintendent, Principal, or
their certified designees may also have access to Criminal Offender Record
Information for any subcontractor or laborer who performs work on school
grounds, and who may have direct and unmonitored contact with children, and
shall notify them of this requirement and comply with the appropriate
provisions of this policy.
Pursuant to a Department of
Education regulation, “‘Direct and unmonitored contact with children’ means
contact with students when no other employee, for whom the employer has made a
suitability determination of the school or district, is present. “ Contact”
refers to any contact with a student that provides the individual with
opportunity for physical touch or personal communication. The school employer
may determine when there is potential for direct and unmonitored contact with
children by assessing the circumstances and specific factors including but not
limited to, whether the individual will be working in proximity with students,
the amount of time the individual will spend on school grounds, and whether the
individual will be working independently or with others. An individual shall
not be considered to have the potential for direct and unmonitored contact with
children if he or she has only the potential for incidental unsupervised
contact in commonly used areas of the school grounds.”
In accordance with state law, all
current and prospective employees, volunteers, and persons regularly providing
school related transportation to children of the school district shall sign an
acknowledgement form authorizing receipt by the district of all available CORI
data from the department of criminal justice information services. In the event
that a current employee has a question concerning the signing of the
acknowledgement form, he/she may meet with the Principal or Superintendent;
however, failure to sign the CORI acknowledgement form may result in a referral
to local counsel for appropriate action. Completed acknowledgement forms must
be kept in secure files. The School Committee, Superintendent, Principals or
their designees certified to obtain information under the policy, shall
prohibit the dissemination of school information for any purpose other than to
further the protection of school children.
CORI is not subject to the public
records law and must be kept in a secure location, separate from personnel
files and may be retained for not more than three years. CORI shall be shared
with the individual to whom it pertains, pursuant to law, regulation and the
following model policy, and in the event of an inaccurate report the individual
should contact the department of criminal justice informational services.
Access to CORI material must be
restricted to those individuals certified to receive such information. In the
case of prospective employees or volunteers, CORI material should be obtained
only where the Superintendent had determined that the applicant is qualified
and may forthwith be recommended for employment or volunteer duties.
The hiring authority, subject to
applicable law and the model policy, reserves the exclusive right concerning
any employment decision.
The Superintendent shall ensure that
on the application for employment and/or volunteer form there shall be a statement
that as a condition of the employment or volunteer service the school district
is required by law to obtain Criminal Offender Record Information for any
employee, individual who regularly provides transportation, or volunteer who
may have direct and unmonitored contact with children. Current employees,
persons regularly providing school related transportation, and volunteers shall
also be informed in writing by the Superintendent prior to the periodic
obtaining of their Criminal Offender Record Information.
The Superintendent shall amend
employment applications to include questions concerning criminal records which
the Massachusetts Commission against Discrimination has determined may be
legally asked of prospective employees. Any employment application which seeks
information concerning prior arrests or convictions of the applicant shall
include the following statement: “An applicant for employment with a sealed
record on file with the commission of probation may answer ‘no record’ with
respect to an inquiry herein relative to prior arrests or criminal court
appearances. In addition, any
applicant for employment may answer
‘no record’ with respect to any inquiry relative to prior arrests, court
appearances and adjudications in all cases of delinquency or as a child in need
of service which did not result in a compliant transferred to the superior
court for criminal prosecution.”
Records sealed pursuant to law shall
not operate to disqualify a person in any examination, appointment or
application for public service on behalf of the Commonwealth or any political
subdivision thereof.
The Superintendent shall revise
contracts with special education schools and other providers to require a
signed statement that the provider has met all legal requirements of the state
where it is located relative to criminal background checks for employees and
others having direct and unmonitored contact with children.
LEGAL REFS.: M.G.L.6:167-178; 15D:7-8; 71:38R, 151B, 276:100A
P.L.
92-544; Title 28 U.S.C. § 534; Title 28 C.F.R. 20.33(b)
42
U.S.C. § 16962
603
CMR 51.00
803
CMR 2.00
803
CMR 3.05 (Chapter 149 of the Acts of 2004)
FBI Criminal Justice
Information Services Security Policy
Procedure for correcting
a criminal record
FAQ – Background Checks
SOURCE: MASC October 2014
Reviewed by Leverett Policy Committee and Leverett School
Committee: 12-07-15
FINAL Vote: 12-07-15