SUBSTITUTE SENATE BILL NO. 5234
AS AMENDED BY THE HOUSE
C 090 L 89
State of Washington 51st Legislature 1989 Regular Session
By Senate Committee on Law & Justice (originally sponsored by Senators Pullen, Talmadge, Madsen, Rasmussen, Sutherland and Gaspard; by request of Washington State Patrol)
Read first time 2/7/89.
AN ACT Relating to child and adult abuse information; and amending RCW 43.43.830, 43.43.832, 43.43.834, 43.43.838, and 43.43.840.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. Section 1, chapter 486, Laws of 1987 and RCW 43.43.830 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 either:
(a) Any prospective employee who will or may have unsupervised access to children under sixteen years of age or developmentally disabled persons during the course of his or her employment or involvement with the business or organization. However, for school districts and educational service districts, prospective employee includes only noncertificated personnel; or
(b) Any prospective volunteer who will have regularly scheduled unsupervised access to children under sixteen years of age or developmentally disabled persons 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, or (iii) developmentally disabled persons.
(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, or provides recreation to developmentally disabled persons or children under sixteen years of age, including 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 13.34.030(2)(b) or in a domestic relations action under Title 26 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 in which the finding was made and who contested the allegation of abuse or exploitation.
"Conviction record" means ((
criminal history)) "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) "Disciplinary board final decision" means any final decision issued by the disciplinary board or the director of the department of licensing for the following business or professions:
(c) Dental hygiene;
(d) Drugless healing;
(h) Physical therapy;
(j) Practical nursing;
(k) Registered nursing;
(l) Psychology; and
(m) Real estate brokers and salesmen.
(6) "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 rape; first, second, or third degree statutory rape; 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; or any of these crimes as they may be renamed in the future.
(7) "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 to which the applicant has access during the course of his or her employment or involvement with the business or organization.
Sec. 2. Section 2, chapter 486, Laws of 1987 and RCW 43.43.832 are each amended to read as follows:
(1) The legislature finds that businesses and organizations providing services to children or developmentally disabled persons need adequate information to determine which employees or licensees to hire or engage. Therefore, the Washington state patrol criminal identification system may disclose, upon the request of a business or organization as defined in RCW 43.43.830, a prospective employee's record for convictions of offenses against children or other persons, adjudications of child abuse in a civil action, and disciplinary board final decisions and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision. When necessary, applicants may be employed on a conditional basis pending completion of such a background investigation.
(2) The legislature also finds that the state board of education may request of the Washington state patrol criminal identification system information regarding a certificate applicant's record for convictions under subsection (1) of this section.
(3) The legislature also finds that law enforcement agencies, the office of the attorney general, prosecuting authorities, and the department of social and health services may request this same information to aid in the investigation and prosecution of child and adult abuse cases and to protect children and adults from further incidents of abuse.
(4) The legislature further finds that the department of social and health services, when considering persons for state positions directly responsible for the care, supervision, or treatment of children or the developmentally disabled or when licensing or authorizing such persons or agencies pursuant to its authority under chapter 74.15 RCW, must consider the information listed in subsection (1) of this section. However, when necessary, persons may be employed on a conditional basis pending completion of the background investigation. The state personnel board shall adopt rules to accomplish the purposes of this subsection as it applies to state employees.
Sec. 3. Section 3, chapter 486, Laws of 1987 and RCW 43.43.834 are each amended to read as follows:
(1) A business or organization shall not make an inquiry to the Washington state patrol under RCW 43.43.832 or an equivalent inquiry to a federal law enforcement agency unless the business or organization has notified the applicant who has been offered a position as an employee or volunteer that an inquiry may be made.
(2) A business or organization shall require each applicant to disclose to the business or organization whether the applicant has been:
(a) Convicted of any crime against children or other persons;
(b) Found in any dependency action under RCW 13.34.030(2)(b) to have sexually assaulted or exploited any minor or to have physically abused any minor;
(c) Found by a court in a domestic relations proceeding under Title 26 RCW to have sexually abused or exploited any minor or to have physically abused any minor; or
(d) Found in any disciplinary board final decision to have sexually abused or exploited any minor or to have physically abused any minor.
The disclosure shall be made in writing and signed by the applicant and sworn under penalty of perjury. The disclosure sheet shall specify all crimes against children or other persons as defined in RCW 43.43.830.
(3) The business or organization shall pay such reasonable fee for the records check as the state patrol may require under RCW 43.43.838.
(4) The business or organization shall notify the applicant of the state patrol's response within ten days after receipt by the business or organization. The employer shall provide a copy of the response to the applicant and shall notify the applicant of such availability.
(5) The business or organization shall use this record only in making the initial employment or engagement decision. Further dissemination or use of the record is prohibited. A business or organization violating this subsection is subject to a civil action for damages.
(6) An insurance company shall not require a business or organization to request background information on any employee before issuing a policy of insurance.
(7) The business and organization shall be immune from civil liability for failure to request background information on a prospective employee or volunteer unless the failure to do so constitutes gross negligence.
Sec. 4. Section 5, chapter 486, Laws of 1987 and RCW 43.43.838 are each amended to read as follows:
(1) After January 1, 1988, and notwithstanding any provision of RCW 43.43.700 through 43.43.810 to the contrary, the state patrol shall furnish a transcript of the conviction record, disciplinary board final decision and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision, or civil adjudication record pertaining to any person for whom the state patrol or the federal bureau of investigation has a record upon the written request of:
(a) The subject of the inquiry;
(b) Any business or organization for the purpose of conducting evaluations under RCW 43.43.832;
(c) The department of social and health services;
(d) Any law enforcement agency, prosecuting authority, or the office of the attorney general; or
(e) The department of social and health services for the purpose of meeting responsibilities set forth in chapter 74.15 RCW. However, access to conviction records pursuant to this subsection (1)(e) does not limit or restrict the ability of the department to obtain additional information regarding conviction records and pending charges as set forth in RCW 74.15.030(2)(b).
After processing the request, if the conviction record, disciplinary board final decision and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision, or adjudication record shows no evidence of a crime against children or other persons, an identification declaring the showing of no evidence shall be issued to the applicant by the state patrol and shall be issued within fourteen working days of the request. Possession of such identification shall satisfy future background check requirements for the applicant for a two-year period.
(2) The state patrol shall by rule establish fees for disseminating records under this section to recipients identified in subsection (1)(a) and (b) of this section. The state patrol shall also by rule establish fees for disseminating records in the custody of the national crime information center. The fees shall cover, as nearly as practicable, the direct and indirect costs to the state patrol of disseminating the records: PROVIDED, That no fee shall be charged to a nonprofit organization, including school districts and educational service districts, for the records check.
(3) No employee of the state, employee of a business or organization, or the business or organization is liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information under RCW 43.43.830 through 43.43.840 or RCW 43.43.760.
(4) Before July 26, 1987, the state patrol shall adopt rules and forms to implement this section and to provide for security and privacy of information disseminated under this section, giving first priority to the criminal justice requirements of this chapter. The rules may include requirements for users, audits of users, and other procedures to prevent use of civil adjudication record information or criminal history record information inconsistent with this chapter.
(5) Nothing in RCW 43.43.830 through 43.43.840 shall authorize an employer to make an inquiry not specifically authorized by this chapter, or be construed to affect the policy of the state declared in chapter 9.96A RCW.
Sec. 5. Section 6, chapter 486, Laws of 1987 and RCW 43.43.840 are each amended to read as follows:
(1) The supreme court shall by rule require the courts of the state to notify the state patrol of any dependency action under RCW 13.34.030(2)(b) or domestic relations action under Title 26 RCW in which the court makes specific findings of physical abuse or sexual abuse or exploitation of a child.
(2) The department of licensing shall notify the state patrol of any disciplinary board final decision that includes specific findings of physical abuse or sexual abuse or exploitation of a child.
(3) When a business or an organization terminates, fires, dismisses, fails to renew the contract, or permits the resignation of an employee because of crimes against children or other persons, and if that employee is employed in a position requiring a certificate or license issued by a licensing agency such as the state board of education, the business or organization shall notify the licensing agency of such termination of employment.