BILL REQ. #:  H-1043.1 

Read first time 01/28/09.   Referred to Committee on Education.

     AN ACT Relating to crimes that require dismissal or certificate revocation for school employees; amending RCW 28A.400.320, 28A.400.330, 28A.405.470, 28A.410.090, 28A.410.110, 9.96A.020, and 43.43.845; adding a new section to chapter 28A.400 RCW; adding a new section to chapter 28A.405 RCW; adding a new section to chapter 41.59 RCW; and adding a new section to chapter 41.56 RCW.

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) RCW 28A.400.320, 28A.400.330, 28A.405.470, 28A.410.090(3), 28A.410.110, 9.96A.020, and 43.43.845 apply upon a guilty plea or conviction occurring after July 23, 1989, and before the effective date of this section, for any of the following felony crimes:
     (a) Any felony crime involving the physical neglect of a child under chapter 9A.42 RCW;
     (b) 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;
     (c) Sexual exploitation of a child under chapter 9.68A RCW;
     (d) Sexual offenses under chapter 9A.44 RCW where a minor is the victim;
     (e) Promoting prostitution of a minor under chapter 9A.88 RCW;
     (f) The sale or purchase of a minor child under RCW 9A.64.030;
     (g) Violation of laws of another jurisdiction that are similar to those specified in (a) through (f) of this subsection.
     (2) RCW 28A.400.320, 28A.400.330, 28A.405.470, 28A.410.090(3), 28A.410.110, 9.96A.020, and 43.43.845 apply upon a guilty plea or conviction occurring on or after the effective date of this section, for any of the following felony crimes or attempts, conspiracies, or solicitations to commit any of the following felony crimes:
     (a) A felony violation of RCW 9A.88.010, indecent exposure;
     (b) A felony violation of chapter 9A.42 RCW involving physical neglect;
     (c) A felony violation of chapter 9A.32 RCW;
     (d) A violation of RCW 9A.36.011, assault 1; 9A.36.021, assault 2; 9A.36.120, assault of a child 1; 9A.36.130, assault of a child 2; or any other felony violation of chapter 9A.36 RCW involving physical injury except assault 3 where the victim is eighteen years of age or older;
     (e) A sex offense as defined in RCW 9.94A.030;
     (f) A violation of RCW 9A.40.020, kidnapping 1; or 9A.40.030, kidnapping 2;
     (g) A violation of RCW 9A.64.030, child selling or child buying;
     (h) A violation of RCW 9A.88.070, promoting prostitution 1;
     (i) A violation of RCW 9A.56.200, robbery 1; or
     (j) A violation of laws of another jurisdiction that are similar to those specified in (a) through (i) of this subsection.

Sec. 2   RCW 28A.400.320 and 1990 c 33 s 383 are each amended to read as follows:
     (1) The school district board of directors shall immediately terminate the employment of any classified employee who has contact with children during the course of his or her employment upon a guilty plea or 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 (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, the sale or purchase of a minor child under RCW 9A.64.030, or violation of similar laws of another jurisdiction)) specified under section 1 of this act.
     (2) The employee shall have a right of appeal under chapter 28A.645 RCW including any right of appeal under a collective bargaining agreement.

Sec. 3   RCW 28A.400.330 and 1989 c 320 s 4 are each amended to read as follows:
     The school district board of directors shall include in any contract for services with an entity or individual other than an employee of the school district a provision requiring the contractor to prohibit any employee of the contractor from working at a public school who has contact with children at a public school during the course of his or her employment and who has pled guilty to or been convicted 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, the sale or purchase of a minor child under RCW 9A.64.030, or violation of similar laws of another jurisdiction)) specified under section 1 of this act. The contract shall also contain a provision that any failure to comply with this section shall be grounds for the school district immediately terminating the contract.

Sec. 4   RCW 28A.405.470 and 1990 c 33 s 405 are each amended to read as follows:
     The school district shall immediately terminate the employment of any person whose certificate or permit authorized under chapter 28A.405 or 28A.410 RCW is subject to revocation under RCW 28A.410.090(((2))) (3) upon a guilty plea or 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 (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, the sale or purchase of a minor child under RCW 9A.64.030, or violation of similar laws of another jurisdiction)) specified under section 1 of this act. Employment shall remain terminated unless the employee successfully prevails on appeal. This section shall only apply to employees holding a certificate or permit who have contact with children during the course of their employment.

Sec. 5   RCW 28A.410.090 and 2005 c 461 s 2 are each amended to read as follows:
     (1)(a) Any certificate or permit authorized under the provisions of this chapter, chapter 28A.405 RCW, or rules 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. School district superintendents, educational service district superintendents, or private school administrators may file a complaint concerning any certificated employee of a school district, educational service district, or private school and this filing authority is not limited to employees of the complaining superintendent or administrator.
     (b) 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 based on a written complaint alleging physical abuse or sexual misconduct by a certificated school employee filed by a parent or another person, but no complaint has been forwarded to the superintendent by a school district superintendent, educational service district superintendent, or private school administrator, 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) A parent or another person may file a written complaint with the superintendent of public instruction alleging physical abuse or sexual misconduct by a certificated school employee if:
     (a) The parent or other person has already filed a written complaint with the educational service district superintendent concerning that employee;
     (b) The educational service district superintendent has not caused an investigation of the allegations and has not forwarded the complaint to the superintendent of public instruction for investigation; and
     (c) The written complaint states the grounds and factual basis upon which the parent or other person believes an investigation should be conducted.
     (3)(a) 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)) specified under section 1 of this act, in accordance with this section. The person whose certificate is in question shall be given an opportunity to be heard.
     (b) Mandatory permanent revocation upon a guilty plea or the conviction of felony crimes specified under ((this subsection)) section 1(1) of this act shall apply to such convictions or guilty pleas which occur after July 23, 1989, and before the effective date of section 1 of this act.
     (c) Mandatory permanent revocation upon a guilty plea or conviction of felony crimes specified under section 1(2) of this act shall apply to such convictions or guilty pleas that occur on or after the effective date of section 1 of this act.
     (d) Revocation of any certificate or permit authorized under this chapter or chapter 28A.405 RCW for a guilty plea or criminal conviction of a crime specified under section 1 of this act occurring prior to July 23, 1989, shall be subject to the provisions of subsection (1) of this section.
     (4)(a) Any such certificate or permit authorized under this chapter or chapter 28A.405 RCW shall be suspended or revoked, according to the provisions of this subsection, by the authority authorized to grant the certificate upon a finding that an employee has engaged in an unauthorized use of school equipment to intentionally access material depicting sexually explicit conduct or has intentionally possessed on school grounds any material depicting sexually explicit conduct; except for material used in conjunction with established curriculum. A first time violation of this subsection shall result in either suspension or revocation of the employee's certificate or permit as determined by the office of the superintendent of public instruction. A second violation shall result in a mandatory revocation of the certificate or permit.
     (b) In all cases under this subsection (4), the person whose certificate is in question shall be given an opportunity to be heard and has the right to appeal as established in RCW 28A.410.100. Certificates or permits shall be suspended or revoked under this subsection only if findings are made on or after July 24, 2005. For the purposes of this subsection, "sexually explicit conduct" has the same definition as provided in RCW 9.68A.011.
     (5) 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 finding that the certificate holder obtained the certificate through fraudulent means, including fraudulent misrepresentation of required academic credentials or prior criminal record. In all cases under this subsection, the person whose certificate is in question shall be given an opportunity to be heard and has the right to appeal as established in RCW 28A.410.100. Certificates or permits shall be revoked under this subsection only if findings are made on or after the effective date of this section.

Sec. 6   RCW 28A.410.110 and 1990 c 33 s 410 are each amended to read as follows:
     In case any certificate or permit authorized under this chapter or chapter 28A.405 RCW is revoked, the holder shall not be eligible to receive another certificate or permit for a period of twelve months after the date of revocation. However, if the certificate or permit authorized under this chapter or chapter 28A.405 RCW was revoked because of a guilty plea or the conviction of a 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, the sale or purchase of a minor child under RCW 9A.64.030, or violation of similar laws of another jurisdiction)) specified under section 1 of this act, the certificate or permit shall not be reinstated.

Sec. 7   RCW 9.96A.020 and 2008 c 134 s 26 are each amended to read as follows:
     (1) Subject to the exceptions in subsections (3) through (5) 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. However, for positions in the county treasurer's office, a person may be disqualified from employment because of a prior guilty plea or conviction of a felony involving embezzlement or theft, even if the time elapsed since the guilty plea or conviction is ten years or more.
     (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)) crime specified under section 1 of this act, 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)) crime specified under section 1 of this act, even if the time elapsed since the guilty plea or conviction is ten years or more.
     (5) The provisions of this chapter do not apply to issuance of licenses or credentials for professions regulated under chapter 18.130 RCW.
     (6) Subsections (3) and (4) of this section ((only)) as they pertain to felony crimes specified under section 1(1) of this act apply to a person applying for a certificate or for employment on or after July 25, 1993, and before the effective date of section 1 of this act. Subsections (3) and (4) of this section as they pertain to all felony crimes specified under section 1(2) of this act apply to a person applying for a certificate or for employment on or after the effective date of section 1 of this act. Subsection (5) of this section only applies to a person applying for a license or credential on or after June 12, 2008.

Sec. 8   RCW 43.43.845 and 2006 c 263 s 828 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, promoting prostitution of a minor under chapter 9A.88 RCW, or the sale or purchase of a minor child under RCW 9A.64.030)) specified under section 1 of this act, the prosecuting attorney shall notify the state patrol of such guilty pleas or convictions.
     (2) When the state patrol receives ((information that a person has pled guilty to or been convicted of one of the felony crimes)) the notice required under subsection (1) of this section, the state patrol shall transmit that information to the superintendent of public instruction. It shall be the duty of the superintendent of public instruction, on at least a quarterly basis, to identify whether the person holds a certificate or permit issued under chapters 28A.405 and 28A.410 RCW or is employed by a school district, and provide this information to the Washington professional educator standards board and the school district employing the ((individual who pled guilty or was convicted of the crimes identified in subsection (1) of this section)) person.

NEW SECTION.  Sec. 9   A new section is added to chapter 28A.405 RCW to read as follows:
     (1) A school district superintendent shall immediately notify the office of the superintendent of public instruction when the district terminates the employment contract of a certificated employee on the basis of probable cause for termination.
     (2) The office of the superintendent of public instruction shall maintain a record of the notices received under this section.
     (3) This section applies only to employees holding a certificate or permit authorized under this chapter or chapter 28A.410 RCW who have contact with children during the course of their employment.

NEW SECTION.  Sec. 10   A new section is added to chapter 41.59 RCW to read as follows:
     Nothing in this chapter may be construed to grant employers or employees the right to reach agreements that are in conflict with the termination provisions of RCW 28A.405.470.

NEW SECTION.  Sec. 11   A new section is added to chapter 41.56 RCW to read as follows:
     Nothing in this chapter may be construed to grant school district employers or classified school district employees the right to reach agreements that are in conflict with the termination provisions of RCW 28A.400.320.