S-2349

AN ACT Relating to protecting children and vulnerable adults by using background checks; amending RCW 9.96A.020, 41.06.475, and 43.20A.710; adding new sections to chapter 43.20A RCW; adding new sections to chapter 43.43 RCW; adding a new section to chapter 2.04 RCW; adding a new section to chapter 2.06 RCW; and repealing RCW 72.23.035.

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

Sec. 1. RCW 9.96A.020 and 1993 c 71 s 1 are each amended to read as follows:

(1) Subject to the exceptions in subsections (3) ((~~and (4)~~)) through (6) of this section, and unless there is another provision of law to the contrary, a person is not disqualified from employment by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, nor is a person disqualified to practice, pursue or engage in any occupation, trade, vocation, or business for which a license, permit, certificate or registration is required to be issued by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations solely because of a prior conviction of a felony. However, this section does not preclude the fact of any prior conviction of a crime from being considered.

(2) A person may be denied employment by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, or a person may be denied a license, permit, certificate or registration to pursue, practice or engage in an occupation, trade, vocation, or business by reason of the prior conviction of a felony if the felony for which he or she was convicted directly relates to the position of employment sought or to the specific occupation, trade, vocation, or business for which the license, permit, certificate or registration is sought, and the time elapsed since the conviction is less than ten years.

(3) A person is disqualified for any certificate required or authorized under chapters 28A.405 or 28A.410 RCW, because of a prior guilty plea or the conviction of a felony involving 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 a violation of similar laws of another jurisdiction, even if the time elapsed since the guilty plea or conviction is ten years or more.

(4) A person is disqualified from employment by school districts, educational service districts, and their contractors hiring employees who will have regularly scheduled unsupervised access to children, because of a prior guilty plea or conviction of a felony involving 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 a violation of similar laws of another jurisdiction, even if the time elapsed since the guilty plea or conviction is ten years or more.

(5) Subsections (3) and (4) of this section only apply to a person applying for a certificate or for employment on or after July 25, 1993.

(6) A person is subject to disqualification from being hired, engaged, or authorized by the department of social and health services and its contractors or licensees, and from being licensed, registered, or certified by the department of social and health services, if the person has a conviction record of a crime listed in section 4 of this act even if the time elapsed since the guilty plea or conviction is ten years or more.

Sec. 2. RCW 41.06.475 and 1993 c 281 s 38 are each amended to read as follows:

(1) The Washington personnel resources board shall adopt rules, in cooperation with the secretary of social and health services, for the background investigation of persons being considered for state employment in positions ((~~directly responsible for the supervision, care, or treatment of~~)) that have unsupervised access to children or ((~~developmentally disabled persons~~)) vulnerable adults.

(2) The Washington personnel resources board shall adopt rules consistent with section 4 of this act, in cooperation with the secretary of social and health services, for persons employed and being considered for state employment by the department of social and health services in fiscally responsible positions and in positions that may allow unsupervised access to children or vulnerable adults.

NEW SECTION. Sec. 3. A new section is added to chapter 43.20A RCW to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply to RCW 43.20A.710.

(1) "Business or organization" means a business or organization licensed in this state, agency of the state, other governmental entity, natural person, firm, partnership, corporation, or facility, that educates, trains, treats, supervises, houses, or provides recreation to vulnerable adults or children regardless of whether the education, training, treatment, supervision, housing, or recreation is provided in the normal course of business or otherwise.

(2) "Child" means a person under the age of eighteen years.

(3) "Crimes" means those crimes against children or other persons as defined in RCW 43.43.830(5) and crimes relating to financial exploitation as defined in RCW 43.43.830(6).

(4) "Disciplinary board final decision" means a specific finding of abuse, abandonment, neglect, or exploitation in:

(a) A stipulated finding of fact, conclusion of law, and agreed order issued by a disciplining authority under chapter 18.130 RCW;

(b) A finding of fact, conclusion of law, and final order issued by a disciplining authority under chapter 18.130 RCW;

(d) Any final decision issued by the director of the department of licensing.

(5) "Fiscally responsible position" means department positions that have authority for or access to negotiable items or systems that would result in the issuance of negotiable items.

(6)(a) "Hired, engaged, or authorized" means:

(i) Employed by a business or organization;

(ii) Accepted as a volunteer, intern, student, or trainee by a business or organization; or

(iii) Otherwise granted access to vulnerable adults, children, or negotiable items or systems by a business or organization.

(b) "Hired, engaged, or authorized" does not include:

(i) Allowing unsupervised access by family and friends of a vulnerable adult or child who do not provide care or treatment to the vulnerable adult or child; or

(ii) Individual providers receiving background checks under RCW 43.20A.710.

(7) "Individual" means any natural person including, but not limited to, an employee, job applicant, trainee, intern, volunteer, student, or personal service contractor, who may have unsupervised access to children or vulnerable adults during the course of his or her employment or involvement with a business or organization or who is in a fiscally responsible position.

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

(a) Another individual, over the age of eighteen years, from the same business or organization as the individual; or

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

(9) "Vulnerable adult" has the same meaning as in RCW 74.34.020.

NEW SECTION. Sec. 4. A new section is added to chapter 43.20A RCW to read as follows:

(1) By July 1, 1998, the department shall require that all individuals in positions, as determined by an appointing authority, who have unsupervised access to children or vulnerable adults or who have fiscally responsible positions and were hired after July 1, 1995, or resided in the state less than three years, undergo a record check through the Washington state patrol criminal identification system, under RCW 43.43.830 through 43.43.838, and through the federal bureau of investigation. The record check must include a fingerprint check using a complete Washington state criminal identification fingerprint card. The department shall provide a copy of the record report to the employee. Individuals subject to this section are required to undergo Washington state patrol record checks every three years.

(2) Subject to available funding, individuals may not be required by the department to pay for the record check required in subsection (1) of this section.

(3) The record checks required in this section must be in process no later than July 1, 1998.

(4)(a) An individual shall be permanently disqualified from being hired, engaged, or authorized into a position that may provide unsupervised access to a child or vulnerable adult if the record check required under subsection (1) of this section indicates a conviction of one or more of the following crimes:

(i) Aggravated murder;

(ii) First degree murder;

(iii) First degree kidnapping;

(iv) First or second degree assault;

(v) First, second, or third degree assault of a child;

(vi) First, second, or third degree rape;

(vii) First, second, or third degree rape of a child;

(viii) First or second degree robbery;

(ix) First degree arson;

(x) First degree burglary;

(xi) Indecent liberties;

(xii) First degree extortion;

(xiii) Incest;

(xiv) First degree promoting prostitution;

(xv) Sexual exploitation of minors;

(xvi) First degree criminal mistreatment;

(xvii) Child abuse or neglect as defined in RCW 26.44.020;

(xviii) First, second, or third degree child molestation;

(xix) First or second degree sexual misconduct with a minor;

(xx) Child buying or selling; and

(xxi) Felony indecent exposure.

(b) If a record check required under subsection (1) of this section indicates that an individual has been convicted of a crime other than those listed in (a) of this subsection or has pending charges, civil adjudications, disciplinary board final decisions, or licensing findings that relate to the individual's functions or the individual's unsupervised access to children or vulnerable adults, the employer shall consider the following when making employment decisions pertaining to the individual:

(i) Character, suitability, and competence of the individual;

(ii) The seriousness of the crime and any mitigating factors; and

(iii) Other appropriate factors.

(c) A review procedure must be established for state employees disqualified by the listings established under (a) of this subsection.

(5) Any classified employee dismissed or otherwise adversely affected as a result of a conviction identified in the record required under subsection (1) of this section must be allowed to appeal under the appropriate statutes, including but not limited to chapters 41.06 and 41.64 RCW.

(6) The secretary may, by rule, determine appropriate circumstances for the conditional hiring, engagement, or authorization of individuals who are subject to the criminal record check requirements of this section. Hiring, engagement, or authorization may be conditional pending completion of the national conviction record check only after the applicant has completed the fingerprint-based state background check through the state patrol.

Sec. 5. RCW 43.20A.710 and 1993 c 210 s 1 are each amended to read as follows:

The secretary shall investigate the conviction records, pending charges or disciplinary board final decisions of: (1) Persons being considered for state employment in positions ((~~directly responsible for the supervision, care, or treatment of~~)) with unsupervised access to children or ((~~individuals with mental illness or developmental disabilities~~)) vulnerable adults; and (2) individual providers who are paid by the state for in-home services and hired by individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment. The investigation may include an examination of state and national criminal identification data and the child abuse and neglect register established under chapter 26.44 RCW. The secretary shall provide the results of the state background check on individual providers to the individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment who hired them and to their legal guardians, if any. The secretary shall use the information solely for the purpose of determining the character, suitability, and competence of these applicants except that in the case of individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment who employ individual providers, the determination of character, suitability, and competence of applicants shall be made by the individual with a physical disability, developmental disability, mental illness, or mental impairment. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose. If necessary, persons may be employed on a conditional basis pending completion of the background investigation.

NEW SECTION. Sec. 6. A new section is added to chapter 43.43 RCW to read as follows:

(1) An individual employed by the state in a position allowing unsupervised access to children or vulnerable adults shall report to his or her supervisor any conviction occurring after the effective date of this section for an offense set forth in RCW 43.43.830. The report must be made within seven days of the conviction.

(2) Failure by an individual to report a conviction shall be considered in any subsequent disciplinary action.

NEW SECTION. Sec. 7. A new section is added to chapter 43.43 RCW to read as follows:

(1) An individual with a state credential issued under chapter 18.130 or 28A.410 RCW shall report to the credentialing authority any conviction occurring after the effective date of this section for an offense set forth in RCW 43.43.830. The report must be made within seven days of the conviction.

(2) Failure by an individual to report a conviction shall be considered by the credentialing authority in any application for renewal or reinstatement of the credential.

(3) When an individual required to report under subsection (1) of this section is employed, the individual shall also report the conviction to his or her employer within seven days of the conviction.

NEW SECTION. Sec. 8. A new section is added to chapter 2.04 RCW to read as follows:

If the court reaches a final determination of a criminal appeal and the determination results in a dismissal, reversal, or vacation of a conviction, the court shall furnish notice of its determination to the identification section of the Washington state patrol.

NEW SECTION. Sec. 9. A new section is added to chapter 2.06 RCW to read as follows:

NEW SECTION. Sec. 10. RCW 72.23.035 and 1989 c 334 s 12 are each repealed.

NEW SECTION. Sec. 11. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.