2554-S

AN ACT Relating to record checks of educational employees and applicants; amending RCW 28A.400.303, 43.43.845, 43.43.830, and 28A.410.090; adding new sections to chapter 28A.400 RCW; creating a new section; and declaring an emergency.

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

NEW SECTION. Sec. 1. A new section is added to chapter 28A.400 RCW to read as follows:

(1) In accordance with the time line established under subsection (3) of this section, school districts shall require that all employees who have not had a record check under RCW 28A.400.303 apply for a record check through the Washington state patrol criminal identification system under RCW 43.43.830 through 43.43.838, 10.97.030, and 10.97.050 and through the federal bureau of investigation. Employees of school district contractors and educational service districts who have regularly scheduled unsupervised access to children in public schools who have not had a record check under RCW 28A.400.303 also shall have the record check. The record check shall include a fingerprint check using a complete Washington state criminal identification fingerprint card. The superintendent of public instruction shall provide a copy of the record report to the employee. Once an employee has a record check as required under this section, additional record checks shall not be required of the employee unless required by other provisions of law.

(2) Employees, school districts, and educational service districts shall not be required by the state patrol or superintendent of public instruction to pay for the record check required in subsection (1) of this section.

(3) Notwithstanding other provisions of law, the state patrol and superintendent of public instruction shall complete the record checks required in this section no later than July 31, 1999. The state patrol and the superintendent of public instruction shall establish a time line for the submission of fingerprint identification cards and for completion of the record checks, and shall notify the legislature, school districts, and educational service districts of the time line. The time line shall ensure that all of the record checks required by this section are completed by July 31, 1999.

(4) When a record check required under this section indicates that a classified employee has been convicted of a crime, the employer shall consider the following when making employment decisions pertaining to the individual: The age and maturity of the individual at the time the crime was committed; the seriousness of the crime and any mitigating factors; the likelihood that the crime will be repeated; the proximity in time of the crime; evidence that would support good moral character and personal fitness; and other appropriate factors. A classified employee dismissed or otherwise adversely affected as a result of a conviction identified in the record check may appeal pursuant to RCW 28A.400.320 or 28A.400.340, whichever is applicable or under any right to appeal granted to the employee through a collective bargaining agreement.

(5) A certificated employee dismissed or otherwise adversely affected as a result of a conviction identified in the record check may appeal pursuant to RCW 28A.400.340 or chapter 28A.405 RCW, whichever is applicable or under any right to appeal granted to the employee through a collective bargaining agreement.

Sec. 2. RCW 28A.400.303 and 1992 c 159 s 2 are each amended to read as follows:

School districts((~~, educational service districts, and their contractors~~)) hiring employees ((~~who will have regularly scheduled unsupervised access to children~~)) shall require a record check through the Washington state patrol criminal identification system under RCW 43.43.830 through ((~~43.43.834~~)) 43.43.838, 10.97.030, and 10.97.050 and through the federal bureau of investigation before hiring an employee. School district contractors and educational service districts hiring employees who will have regularly scheduled unsupervised access to children also shall require the record check. The record check shall include a fingerprint check using a complete Washington state criminal identification fingerprint card. The ((~~requesting entity~~)) superintendent of public instruction shall provide a copy of the record report to the applicant. When necessary, applicants may be employed on a conditional basis pending completion of the ((~~investigation~~)) record check. If the applicant has had a record check within the previous two years, the district or contractor may waive the requirement. The district, pursuant to chapter 41.59 or 41.56 RCW, or contractor hiring the employee shall determine who shall pay costs associated with the record check.

NEW SECTION. Sec. 3. A new section is added to chapter 28A.400 RCW to read as follows:

The superintendent of public instruction shall adopt rules regarding the access to record check files. The rules shall include provisions for written processes and procedures delineating an employee's or applicant's access to and review of state agency files regarding record check information. The rules shall also provide written processes and procedures that ensure that access to the superintendent of public instruction record check data base shall remain with only those individuals processing record check information at the office of the superintendent of public instruction, school districts, and educational service districts.

Sec. 4. RCW 43.43.845 and 1990 c 33 s 577 are each amended to read as follows:

((~~(1)~~)) Upon a guilty plea or conviction of a person of any ((felony crime involving the physical neglect of a child under chapter 9A.42 RCW, the physical injury or death of a child under chapter 9A.32 or 9A.36 RCW (except motor vehicle violations under chapter 46.61 RCW), sexual exploitation of a child under chapter 9.68A RCW, sexual offenses under chapter 9A.44 RCW where a minor is the victim, promoting prostitution of a minor under chapter 9A.88 RCW, or the sale or purchase of a minor child under RCW 9A.64.030)) crime against children or other persons as defined in RCW 43.43.830(5) including any felony crime involving a controlled substance, the prosecuting attorney shall determine whether the person holds a certificate or permit issued under chapter((~~s 28A.405 and~~)) 28A.410 RCW or is employed by a school district, school district contractor, or educational service district. If the person is employed by a school district, school district contractor, or educational service district or holds a certificate or permit issued under chapter((~~s 28A.405 and~~)) 28A.410 RCW, the prosecuting attorney shall notify ((~~the state patrol of such guilty pleas or convictions.~~

(2) When the state patrol receives information that a person who has a certificate or permit issued under chapters 28A.405 and 28A.410 RCW or is employed by a school district has pled guilty to or been convicted of one of the felony crimes under subsection (1) of this section, the state patrol shall immediately transmit that information to)) the superintendent of public instruction. It shall be the duty of the superintendent of public instruction to provide this information to ((~~the state board of education and~~)) the school district, school district contractor, or educational service district employing the individual who pled guilty or was convicted of ((~~the crimes identified in subsection (1) of this section~~)) a crime against children or other persons including any felony crime involving a controlled substance.

Sec. 5. RCW 43.43.830 and 1995 c 250 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 43.43.830 through 43.43.840.

(1) "Applicant" means:

(a) Any prospective employee who will or may have unsupervised access to children under sixteen years of age or developmentally disabled persons or vulnerable adults during the course of his or her employment or involvement with the business or organization;

(b) Any prospective volunteer who will have regularly scheduled unsupervised access to children under sixteen years of age, developmentally disabled persons, or vulnerable adults during the course of his or her employment or involvement with the business or organization under circumstances where such access will or may involve groups of (i) five or fewer children under twelve years of age, (ii) three or fewer children between twelve and sixteen years of age, (iii) developmentally disabled persons, or (iv) vulnerable adults; ((or))

(d) Any employee of a school district, educational service district, or school district contractor.

(2) "Business or organization" means a business or organization licensed in this state, any agency of the state, or other governmental entity, that educates, trains, treats, supervises, houses, or provides recreation to developmentally disabled persons, vulnerable adults, or children under sixteen years of age, including but not limited to public housing authorities, school districts, and educational service districts.

(3) "Civil adjudication" means a specific court finding of sexual abuse or exploitation or physical abuse in a dependency action under RCW 13.34.040 or in a domestic relations action under Title 26 RCW. In the case of vulnerable adults, civil adjudication means a specific court finding of abuse or financial exploitation in a protection proceeding under chapter 74.34 RCW. It does not include administrative proceedings. The term "civil adjudication" is further limited to court findings that identify as the perpetrator of the abuse a named individual, over the age of eighteen years, who was a party to the dependency or dissolution proceeding or was a respondent in a protection proceeding in which the finding was made and who contested the allegation of abuse or exploitation.

(4) "Conviction record" means "conviction record" information as defined in RCW 10.97.030(3) relating to a crime against children or other persons committed by either an adult or a juvenile. It does not include a conviction for an offense that has been the subject of an expungement, pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, or a conviction that has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. It does include convictions for offenses for which the defendant received a deferred or suspended sentence, unless the record has been expunged according to law.

(5) "Crime against children or other persons" means a conviction of any of the following offenses: Aggravated murder; first or second degree murder; first or second degree kidnaping; first, second, or third degree assault; first, second, or third degree assault of a child; first, second, or third degree rape; first, second, or third degree rape of a child; first or second degree robbery; first degree arson; first degree burglary; first or second degree manslaughter; first or second degree extortion; indecent liberties; incest; vehicular homicide; first degree promoting prostitution; communication with a minor; unlawful imprisonment; simple assault; sexual exploitation of minors; first or second degree criminal mistreatment; child abuse or neglect as defined in RCW 26.44.020; first or second degree custodial interference; malicious harassment; first, second, or third degree child molestation; first or second degree sexual misconduct with a minor; first or second degree rape of a child; patronizing a juvenile prostitute; child abandonment; promoting pornography; selling or distributing erotic material to a minor; custodial assault; violation of child abuse restraining order; child buying or selling; prostitution; felony indecent exposure; criminal abandonment; or any of these crimes as they may be renamed in the future. For the purposes of section 4 of this act, a "crime against children or other persons" shall include any felony crime involving a controlled substance.

(6) "Crimes relating to financial exploitation" means a conviction for first, second, or third degree extortion; first, second, or third degree theft; first or second degree robbery; forgery; or any of these crimes as they may be renamed in the future.

(7) "Disciplinary board final decision" means any final decision issued by a disciplining authority under chapter 18.130 RCW or the secretary of the department of health for the following businesses or professions:

(a) Chiropractic;

(b) Dentistry;

(d) Massage;

(e) Midwifery;

(f) Naturopathy;

(g) Osteopathy;

(h) Physical therapy;

(i) Physicians;

(j) Practical nursing;

(k) Registered nursing; and

(l) Psychology.

"Disciplinary board final decision," for real estate brokers and salespersons, means any final decision issued by the director of the department of licensing for real estate brokers and salespersons.

(8) "Unsupervised" means not in the presence of:

(a) Another employee or volunteer from the same business or organization as the applicant; or

(b) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the applicant has access during the course of his or her employment or involvement with the business or organization.

(9) "Vulnerable adult" means "vulnerable adult" as defined in chapter 74.34 RCW, except that for the purposes of requesting and receiving background checks pursuant to RCW 43.43.832, it shall also include adults of any age who lack the functional, mental, or physical ability to care for themselves.

(10) "Financial exploitation" means the illegal or improper use of a vulnerable adult or that adult's resources for another person's profit or advantage.

(11) "Agency" means any person, firm, partnership, association, corporation, or facility which receives, provides services to, houses or otherwise cares for vulnerable adults.

Sec. 6. RCW 28A.410.090 and 1992 c 159 s 4 are each amended to read as follows:

(1) Any certificate or permit authorized under the provisions of this chapter, chapter 28A.405 RCW, or rules and regulations promulgated thereunder may be revoked or suspended by the authority authorized to grant the same based upon a criminal records report authorized by law, or upon the complaint of any school district superintendent, educational service district superintendent, or private school administrator for immorality, violation of written contract, unprofessional conduct, intemperance, or crime against the law of the state.

If the superintendent of public instruction has reasonable cause to believe that an alleged violation of this chapter or rules adopted under it has occurred, but no complaint has been filed pursuant to this chapter, and that a school district superintendent, educational service district superintendent, or private school administrator has sufficient notice of the alleged violation and opportunity to file a complaint, the superintendent of public instruction may cause an investigation to be made of the alleged violation, together with such other matters that may be disclosed in the course of the investigation related to certificated personnel.

(2) Any such certificate or permit authorized under this chapter or chapter 28A.405 RCW shall be revoked by the authority authorized to grant the certificate upon a guilty plea or the conviction of any felony crime involving the physical neglect of a child under chapter 9A.42 RCW, the physical injury or death of a child under chapter 9A.32 or 9A.36 RCW (excepting motor vehicle violations under chapter 46.61 RCW), sexual exploitation of a child under chapter 9.68A RCW, sexual offenses under chapter 9A.44 RCW where a minor is the victim, promoting prostitution of a minor under chapter 9A.88 RCW, the sale or purchase of a minor child under RCW 9A.64.030, or violation of similar laws of another jurisdiction. The person whose certificate or permit is in question shall be given an opportunity to be heard and a right to appeal under RCW 28A.410.100. Mandatory permanent revocation upon a guilty plea or the conviction of felony crimes specified under this subsection shall apply to such convictions or guilty pleas which occur after July 23, 1989. Revocation of any certificate or permit authorized under this chapter or chapter 28A.405 RCW for a guilty plea or criminal conviction occurring prior to July 23, 1989, shall be subject to the provisions of subsection (1) of this section.

NEW SECTION. Sec. 7. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1996, in the omnibus appropriations act, this act is null and void.

NEW SECTION. Sec. 8. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.